So far, there’s been only one Victorian case that actually analysed the Charter. All the others simply referred to the new Act in passing, e.g. observing (in a discussion that raises question of privacy) that ‘The right to privacy is now provided for in the Charter of Human Rights and Responsibilities Act 2006’ or simply footnoting a section of the Charter that corresponds to some legal right mentioned in a judgment. Such passing mentions to the Human Rights Act 2004 have been similarly common in the ACT.
These passing mentions might seem innocuous or even evidence of some sort of cultural change in our courts. But I think they are bad law, akin to the famous argument that the Constitution has a vibe, and even dangerous. Yes, dangerous.
As this blog has noted several times, some passing mentions merely dismiss the relevance of the Charter, but do so without a careful reading of its potentially more nuanced and relevant terms. However, most passing mentions seem to indicate that the Charter is somehow relevant. The tenor seems to be that the simple passage of the Charter has transformed Victorian law by ‘giving’ rights to Victorians, a view that completely ignores the limited operational provisions of the Act. Only King J in R v Williams has actually analysed the legal effect of the Charter. She noticed that s6(2)(b) – which refers to courts and tribunals having ‘functions under Part 2’, the human rights part – could be read as giving rights legal effect in our courts (but what effect? what functions?) independently of the interpretation and conduct mandates; however, she also observed that she was ‘not convinced that is what Parliament intended.’ You bet it wasn’t. Consider Bongiorno J, who was content to observe twice last year that one provision or another was ‘probably contrary to the spirit, if not the letter’ of the Charter and this year applied the Charter without any analysis as if it gave a remedy to every breach of a right. The operative provisions of the Charter, for better or worse, strike a balance between competing political considerations. Such undergraduate references to the Charter are not only bad law, but also threaten that balance. And there’s another consequence.
The first ever mention of the Charter in Victoria – a passing mention, of course – shows another danger of such sloppy referencing. In TSL, the Court of Appeal had to interpret the provisions of the Serious Sex Offenders Monitoring Act 2005 for the first time. That Act allows some defendants who have served their sentence to be subject to an onerous new regime, an extended supervision order. The test for whether such an order should be made is:
11(1) A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.
So, what is ‘likely’? Justice Callaway, in a stunningly inapt borrowing, held that ‘likely’ has the same meaning that the High Court gave it in a criminal law case where it (insanely) held that a doctor was a murderer because he should have realised that his and his girlfriend’s (supposed) regular sexual practice of strangulation was ‘likely’ to kill her. However, he also held that the words ‘high degree of probability’ raise this (obviously low) threshold to something higher. And, in doing so, Callway J made the first and lamest (I hope) Charter reference ever: he footnoted s7(2), on reasonable limits, and commented that ‘the nature of our society is a legitimate factor to take into account in construing the legislation. So, s7(2) defines the nature of our society? Riiiiiiight.
So, what’s the harm? Well, at around the same time, the NSW Parliament passed its own much more draconian Crimes (Serious Sex Offenders) Act 2006, which gives judges a further option of imprisoning discharged offenders if supervision won’t suffice. Importantly, the NSW Act uses exactly the same ‘high degree of probability that the offender is likely’ test that the Victorian Act uses. In two cases, the NSW Supreme Court declined to follow the Victorian interpretation solely because of Callaway J’s silly footnote to s7(2):
 In TSL the Court took into account the provisions of s 7(2) of the Charter of Human Rights and Responsibilities, observing that “The Charter of Human Rights and Responsibilities 2006 (Vic) is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation.” (footnote .) In this respect it seems to me that the plaintiff’s submission that s 17(3) of the Act should be construed in accordance with its terms and not by reference to the approach taken to the Victorian Monitoring Act has force.
See why I think these passing references can be dangerous? As if there’s any relevant diference between Victoria’s ‘society’ and NSW’s that could justify a different interpretation! The NSW courts were crazy to treat the passing reference to the Charter as significant at all, but the Victorian court was doubly crazy to make it. Please stop.
In the end, the NSW Court of Appeal ruled that the Victorian interpretaton should be followed in the name of comity. But there are two ironies here. First, the NSW Courts actually framed the dispute about interpretation quite differently to Callaway J. They didn’t see it as a choice between the High Court’s ridiculously low take on ‘likely’ and an amorphous ‘higher’ standard. Rather, they saw the choice as between Callaway J’s ‘higher’ standard and an even higher one, that would require proof that future offending was ‘more likely than not.’ So, by choosing comity with the Victorian Court of Appeal, the NSW Court actually opted for a standard that is less protective of sex offenders than they otherwise would have been inclined to take. Maybe that shows something about our two different societies!
The second irony is what actually happened after the NSW court adopted Victoria’s approach. A few weeks later, the same court knocked back a state request to detain a released sex offender for the first time, instead imposing a supervision order. Alas, that man, serial rapist and pedophile Raymond Barry Cornwall, took off within half an hour, after shedding his monitoring bracelet. He was found 36 hours later on a Woolongong beach checking out some surfing lads metres away from a kid’s playground. The result is that he no longer needs to be subject to any special orders. He’s back in prison serving a regular criminal sentence for breaching the supervision order.