The almost cool Charter

king-cobra.jpgWhile on the subject of the Charter’s  full name, one flaw is that it doesn’t yield a good acronym. CHRR? CHRAR? COHRAR? It just doesn’t work in the way that ACTHRA and NZBORA  do.

But it might have. Section 6 of the Charter provides that:

(1) Only persons have human rights. All persons have the human rights set out in Part 2.  

And the Charter’s definition section defines a person to mean ‘a human being‘.

So, it could have been the Charter of Human Beings’ Rights and Responsibilities, or COHBRAR for short. Now, that might have been cool.

The Charter of Responsibilities

Victoria’s human rights law is unique in a number of respects. One of the less desirable ones is its full title: the Charter of Human Rights and Responsibilities. This name is one of the many instances where the Community Consultative Committee, after traveling all over Victoria, decided that the community wanted precisely the same name that Rob Hulls had suggested in his 2004 ‘justice statement‘. Hulls certainly has his finger on the pulse! As the Committee unconvincingly explained:

The Committee considers that ‘Charter’ is appealing as it attests to the symbolic as well as the legal significance of the document. The Committee also decided to include a reference to ‘responsibilities’ in recognition of the views expressed by many people that rights and responsibilities go hand in hand.

The Victorian name wasn’t a big hit with two later human rights consultations, in Tasmania and WA, both of which endorsed my intemperate submission on the name:

Victoria’s Charter of Human Rights and Responsibilities would have to be the most depressingly named fundamental rights document in history. The reference to responsibilities has a disturbingly Orwellian ring and is misleading, given the limited legal effect of Victoria’s Charter. I implore you not to follow this lousy precedent. 

Aesthetics aside, the silly thing about referring to ‘responsibilities’ is that it’s not at all clear what responsibilities the Charter sets out, much less how they go ‘hand in hand’ with the rights the Charter promotes. One of the few times the word ‘responsibilities’ even appears in the Charter is in the right to freedom of expression:

15 (3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.

So, how do responsibilities play out in the Underbelly judgment? The answer is that the media had all the responsibilities: Continue reading

The Court of Appeal’s human rights culture

Yesterday’s Underbelly judgment‘s passing mention of the Charter marks the lowest point in the new statute’s impact to date. The seemingly innocuous words are these:

[W]e observe that even if it was open to the applicant to rely upon the Charter in terms of the right of free speech… then we would adopt the view of Richardson J in Gisborne Herald Co Ltd v Solicitor-General:

The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.

To recognise these words for the debacle that they are, it’s vital to understand that the New Zealand Court of Appeal’s Gisborne Herald decision represents one side in a major split between the world’s human rights jurisdictions. Crucially, the other side is the Supreme Court of Canada’s Dagenais v Canadian Broadcasting Corporation, which involved a court’s ban on the broadcast of a docudrama immediately before and during a related criminal trial. Sound familiar?

Unlike the Victorian Court of Appeal, a 6-3 majority of the Supreme Court of Canada quashed the ban, holding that it infringed the free speech rights of myriad Canadians and did so unnecessarily, given the availability of alternative remedies like jury vetting, sequestering, adjournments and judicial directions. But that isn’t the most important thing about the decision. Rather, the Supreme Court also held that the common law on contempt – the very same law that was applied yesterday in Victoria – was itself incompatible with the Canadian Charter. It wasn’t enough that the docudrama had a ‘tendency’ to prejudice a trial. Rather, fair trial concerns could only be a reasonable limit on freedom of the press and expression if two conditions were satisfied. First, that a ban is ‘necessary’ to preserve a fair trial. Second, that the positive effects of the ban outweigh its negative effects. Although the Court held that the ban failed the first step, it also commented very perceptively – for a 1994 judgment! – that the ‘advent of information exchanges available through computer networks’ makes it difficult for any ban on broadcasting to satisfy the second step.

So, how does the Underbelly’s passing mention relate to this? Well, Gisborne Herald was decided by the New Zealand Court of Appeal in 1995 and the Court expressly considered whether Dagenais should be adopted in light of that country’s Bill of Rights Act. The Court of Appeal decided to stick with the status quo, citing the absence of empirical data on either the positive or negative effects of a ban. The decision was lauded by one of the texts on the NZBORA as an appropriate prophylatic approach to promoting fair trials, but criticised by the other as inevitably chilling press coverage of trials.

I think Dagenais is a much sounder approach than Gisborne, but that isn’t my beef with what the Court of Appeal did here.  Continue reading

Does the media have rights?

Today’s decision mostly confirming the ban on Underbelly in Victoria inevitably includes a passing reference to the Charter:

Ground 4. The learned trial judge erred in failing to have regard to ss 7 and 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

This ground was abandoned on the second day of the hearing before us. However we observe that even if it was open to the applicant to rely upon the Charter in terms of the right of free speech, which we consider to be highly unlikely, then we would adopt the view of Richardson J in Gisborne Herald Co Ltd v Solicitor-General:

The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.

Like other passing mentions before it, these comments are all about vibe, not analysis.

I’ll focus in this post on the remark that it is ‘highly unlikely’ that ‘the applicant’ can ‘rely on the Charter in terms of the right of free speech’. As previously discussed in this blog, Charter s. 49(2) seems to preclude the Charter’s application in this case; the relevant proceedings, the murder prosecution, started before 1/1/7. So, neither Channel 9 nor the murder defendant himself can rely on Charter rights.

But, I don’t think the Court was referring to s. 49(2) when it used the terms ‘applicant’ and ‘rely’. Rather, I suspect that the Court was referring to Charter s. 6(1), which provides that ‘Only persons have human rights’. The Charter defines a ‘person’ as a ‘human being’. So, Channel 9 and its corporate owner don’t have human rights. Charter s. 6(1) was specifically included to prevent a repeat in Australia of a much-hated Canadian decision that overturned that country’s tobacco advertising laws. For what it’s worth, I think that the Canadian case was rightly decided, as the Canadian government made no serious attempt to justify the laws in question; when they did, after passing narrower laws that allowed the tobacco companies to attribute health warnings to the government, the Supreme Court upheld those laws. Nevertheless, the view that corporations shouldn’t have rights is a fairly mainstream one.

The Underbelly judgment, in my view, shows why the exclusion of corporations in general (and corporate speech in particular) from the Charter is problematic. Continue reading

Spot-checking the new Charter books

While the flow of cases since the Charter has been fully operational has been a disappointment (in several ways), Victoria is now the beneficiary of three books on the statute, by a total of three academics, three barristers and three Evanses (who somehow acquired the same surname otherwise than by marrying eachother.) I ordered all three last week and will presumably receive them sometime after Easter.

But  reviewing them is a problem, because I have a clearly apparent bias towards the book by Carolyn Evans and Simon Evans, who are not only fellow academics but also my colleagues at Melbourne Law School. Indeed, Simon is my boss. Also, I read a draft of one of the chapers (on parliamentary process) and will presumably be in the acknowledgments (or maybe I’ll be biased a diferent way!) I’ll do my best to be objective when the time comes, but here’s my solution:

When I need to choose between competing law books at a bookshop, I typically ‘spot check’, by looking to see how each handles an issue I know about. So, here are two lists of spot-checking issues I’ll use to assess all three books: one for rights; and one for operative provisions. Continue reading

The Charter v The Commonwealth

On top of his concerns about the Charter’s transitional and notice provisions, Bongiorno J gave one last reason for staying clear of the Charter in today’s ruling about remand conditions for terrorism defendants:

any attempt to apply the Charter to a trial in federal jurisdiction, as this trial is, may well raise questions which require the issue of notices to all State Attorneys-General and the Federal Attorney-General pursuant to s 78B of the Judiciary Act 1903 (C’th) – another source of potential delay to the trial.  

Justice Bongiorno’s procedural concern here can’t be about the immediate question of remand provisions because, as the judge himself noted when discussing Charter s. 35(1)(a), there’s an exception in s78B for ‘the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.’ Rather, the concern will have to be about further legal delays down the track.

But the mystery is what ‘matter arising under the Constitution or involving its interpretation’ that Bongiorno J had in mind. Continue reading