No role for the Charter in Unberbelly case

The ‘Underbelly’ appeal to Victoria’s Court of Appeal is likely to be this year’s most important human rights case, pitting all Victorians’ rights to see an important (and, ahem, damn fine!) docudrama on local TV (rather than going interstate or depending on someone else to breach the order and bring in a video or a bootleg) against the rights of an alleged murderer to a fair trial. In other words, Charter s. 15(2) vs. Charter s. 24(1), mediated by Charter s. 7(2).

Except that the Charter apparently won’t get a look in:

Nine’s lawyer Ron Merkel QC today abandoned a move to use Victoria’s newly created Charter of Human Rights to fight Justice King’s decision on the grounds of free speech. Mr Merkel told the court that after careful consideration of the issue over the weekend he felt it would only draw out the appeal process. 

So, that’s it. No application of the interpretation mandate to the relevant suppression order provisions. No consideration of King J’s own suggestion that courts and tribunals are kinda-sorta bound by the Charter despite being exempted from the definition of public authority. No direct references to relevant overseas decisions on similar rights issues.

The likely culprit, I suspect, is Charter s. 49(2), which excludes the Charter from proceedings started before 1/1/7. As I’ve previously discussed, I think that the best interpretation of ‘proceedings’ is one that bundles criminal proceedings and incidental applications together, so that means that the relevant proceedings in this case is the criminal prosecution of the mysterious alleged murderer, who was presumably charged years back. However, it may just be that Merkel didn’t want to take-on the mystery that is Charter s. 6(2)(b). So, two poorly drafted provisions in the Charter itself block Victoria’s top court from deciding a major human rights case by reference to Victoria’s major human rights statute. How often is this going to happen?

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