SARC criticises a constitutional amendment

The Victorian Parliament’s Scrutiny of Acts and Regulations Committee (whom I advise, but whose views aren’t mine and vice versa) has this to say about a current bill to amend the Victorian Constitution (and some other legislation) in relation to pensions of various judges and other constitutional officers:

The Committee considers that para. (a)(ii) of the definition of partner in clauses 3 and 9 may be incompatible with Charter s. 8(3).

Those are bold words for a bipartisan committee and only the second time such a finding has been made since the Charer commenced. Unlike the first time, there’s no apparent excuse for this discrimination. Continue reading

Another Gray day

A magistrate has followed Bongiorno J’s poorly reasoned judgment in Gray v DPP. According to The Age:

Melbourne magistrate Peter Reardon yesterday bailed South Australian man Quang Hung Pham after studying the charter and reading Justice Bongiorno’s judgement. Defence barrister Peter Faris, QC, had urged Mr Reardon to find that a possible two-year delay in finalising Pham’s case was unreasonable under the charter.

Pham, 45, is accused by the Australian Crime Commission of being a principal in a drug group and organising two couriers arrested in December at Melbourne airport to internally import a total of 330 grams of heroin from Vietnam. Detective Sergeant Anthony Brain said that after his arrest, while driving to South Australia from Melbourne airport following the couriers’ interception on December 1, police found incriminating items at two Adelaide houses linked to Pham. Prosecutor Andrew Doyle submitted that telephone intercepts linked Pham to the couriers and the importation, the delay was not unreasonable and, if convicted, he faced more than a two-year jail term.

Mr Faris, who argued the delay was unreasonable under the charter, said Pham was not a risk of fleeing Australia if bailed and he denied the charge of importing heroin. Mr Reardon quoted Justice Bongiorno that “if the charter in fact guarantees a timely trial, the inability of the Crown to provide that trial as required by the Charter must have an effect on the question of bail”. Mr Reardon, in granting Pham bail, took into account the charter, his age, ties to Australia and the likely delay. Pham, of Mawson Lakes, South Australia, was released on strict conditions that included a $150,000 surety.

Note that Magistrate Reardon expressly relied on the most dubious sentence in Bongiorno J’s judgment. If this keeps up, the ACC would be better off letting their targets drive over the border before picking them up.

A High Court declaration of inconsistent interpretation?

The Charter gets a mention again in a new case, Ferguson v Walkley [2008] VSC 7, which had to decide whether ‘fuck off you dog cunts’ are ‘insulting words’; saying such things to a person ‘in or near a public place’ is a criminal offence under s. 17(1)(c) of the Summary Offences Act 1966. Interestingly, Harper J dealt with the potential incompatibility of s. 17(1)(c) with the Charter’s right to freedom of expression by reference to the High Court’s decision in Coleman v Power [2004] HCA 39 on a similar provision of the Queensland Vagrancy Act:

By a majority of six (Gleeson CJ and Gummow, Kirby, Hayne, Callinan and Heydon JJ) to one (McHugh J), the High Court held that s.7(1)(d) of the Queensland legislation was valid: it was, so the majority held, reasonably appropriate and adapted to achieving a legitimate end in a manner consistent with the system of representative government enshrined in the Commonwealth Constitution. It doubtless follows that the equivalent provision in the Summary Offences Act can, in the words of s.7(2) of the Charter of Human Rights and Responsibilities, “be demonstrably justified in a free and democratic society based on human dignity, equality and freedom … taking into account all relevant factors”.

I’ll put aside the fascinating question of whether or not there is a direct relationship between the High Court’s constitutional freedom of political communication jurisprudence and the Charter’s s. 15(2) & 7(2). Let’s assume there is. What follows for s.17(1)(c) of the Summary Offences Act 1966? Continue reading

Roos on Charter remedies

A unique feature of the Charter is s39(1), which governs the remedies available for breaches of the conduct mandate:

39 (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

Elsewhere, I’ve argued that this provision is quite restrictive in a criminal law context, as many familiar criminal law ‘remedies’ are activated by broad problems such as unfairness, factual error, harm or disproportion, rather than illegality.

In his article in the Jan/Feb 2008 LIJ, Oscar Roos lists the following criminal justice remedies as potentially triggered by a breach of the conduct mandate:

  • The substantive criminal law defence of unlawfulness (e.g. if someone is charged with resisting arrest, or escaping custody, and argues that the arrest or custody was unlawful)
  • Quashing warrants for failure to strictly comply with applicable regulations
  • Quashing committals for failure to strictly comply with applicable regulations. (Roos admits that there’s no strong authority for this remedy, but draws an analogy with warrants. I’m dubious about that, and also about whether committals are administrative functions.)
  • Evidence law’s public policy discretion
  • Stay of proceedings because of unreasonable delay Continue reading

Ripe for re-interpretation?

The Jan/Feb 2008 LIJ has a great piece by Oscar Roos on the Charter’s possible impact on criminal litigation, featuring specific examples and paying attention to the Charter’s operative provisions. It’d be great to see more articles like this.

Roos lists the following Victorian statutory provisions whose meaning might have changed on 1st January 2008:

  • s. 462 of the Crimes Act 1958, which extends the circumstances when a citizen can arrest someone to include ‘the case of a person found doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence’. In De Moor v Davies [1999] VSC 416, Warren J held that ‘such circumstances’ can include being told by others of someone’s highly suspicious conduct (in that case, obtaining money using an EFTPOS card without either the password or ID) even if no-one was sure that what he’d done was criminal.
  • s31(5A) of the Sentencing Act 1991, which requires a suspended sentence to be restored if the offender commits another imprisonable offence unless there are ‘exceptional circumstances‘. In R v Steggall [2005] VSCA 278, a man who had committed a number of dishonesty offences received a three year suspended sentence; two-and-a-half years in, he directed some corporations, which is a criminal offence under the Corporations Act for someone with his record; so, a year later, he faced a restoration of his original dishonesty sentence. The Court of Appeal held that ‘exceptional circumstances’ must be ‘outside reasonable anticipation or expectation’, and that mere disproportion or injustice wasn’t enough.
  • ss. 4(2)(aa) & 13 of the Bail Act 1977, which require judges to refuse bail to people charged with various drug offences, treason and murder unless there are ‘exceptional circumstances‘. In DPP v Tang [1995] VSC 220, the Supreme Court held that spending six months in custody while awaiting trial couldn’t be an ‘exceptional circumstances’ because it is well within the usual waiting period.

In each case, Roos thinks that, given the Charter’s right to liberty, the interpretative mandate will demand approaches that are more generous to suspects and defendants. Continue reading

Freedom to finger

A nice little article in December 2007’s LIJ (available free, for now) on why a 2007 ECtHR ruling on the Austrian painting on the left may be good news (now that the Charter is operational) for the Victorian sculpture on the right.


(I’m not so sure about Harper’s claim that careful tree-planting would resolve the conflict between sub-ss (2) & (3) of Charter s.15 that The Finger so pointedly raises.)

Declarations: Anti-matter or just dark matter?

A slight lightening of a constitutional cloud over the Charter (and its Canberra cousin.) The cloud concerns the possibility that the Charter’s declaration power – allowing a court to declare that a Victorian statute is inconsistent with human rights, kickstarting the much vaunted rights dialogue – isn’t a ‘matter’, which means it can’t be part of federal judicial power. (Don’t know what ‘federal judicial power’ is? Well, that’d be my fault, according to High Court Justice Bill Gummow, who thinks that law schools should teach ludicruously complex (and simply ludicruous) constitutional technicalities to all law students, just so he can banter about them with his lucky associates from the get-go.)

So, whassamatter? In 1921, the Commonwealth Parliament, sick of trying to guess in advance how the High Court will interpret the Constitution, told the Court to rule on the constitutionality of legislation before anyone applied it. The horrified Court frantically leafed through the Constitution and noticed this legalese buried in Chapter 3:

76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter— (i.) Arising under this Constitution, or involving its interpretation: (ii.) Arising under any laws made by the Parliament: (iii.) Of Admiralty and maritime jurisdiction: (iv.) Relating to the same subject-matter claimed under the laws of different States.

The judges seized on the word ‘matter’ and held that it meant that the Court was forbidden on ruling on things that didn’t legally matter. Otherwise,the delicate separation of powers will collapse (just like in Canada, where its Supreme Court routinely gives advisory opinions and wild dogs roam the streets.)

Why does this matter? Continue reading