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. Rather, it’s that the Court expressed a firm view on this issue at all when it didn’t matter to the case – as the Charter wasn’t pressed by Channel Nine and, according to the Court, couldn’t have been – and when it involved such a dramatic choice between two different courses on a vital issue of human rights law. How could the Court make its choice without a full exploration of both cases – not to mention countless other jurisdictions’ takes – and their continuing relevance? To mention just three subsequent developments: those ‘computer networks’ the Canadians were talking about in 1994 seem to have grown somewhat in importance; there are now studies on how juries are influenced by the media (which cast a lot of doubt on the common law); and the New Zealand Supreme Court seems to be more enamored of free speech now than the former NZ top court was thirteen years ago.

Two further points about Underbelly are especially galling. One is that this bland adoption of the Gisborne view has been made in an appeal judgment, unanimously and including the Chief. This is as powerful as dicta can get, while still being dicta. No trial judge is now likely to raise – much less adopt – the Dagenais point in light of this unexplained pronouncement by the Appeal Court, and anyone minded to embark on the difficult road of asking the Court to rethink the issue in a case where it does make a difference will now be greatly deterred. In short, the Court of Appeal has created a ‘chilling effect’ on a legitimate issue about interpreting the Charter that deserves careful attention. It’s astonishing that not one of the three judges had the good sense to issue a separate concurrence, agreeing on the substantive issues but reserving the question of Dagenais v Gisborne for another, more appropriate day, when the point has actually been fully argued.

The second is that Gisborne isn’t really a bill of rights judgment at all, but rather an anti-BOR judgment, because its position is a negative one: that the current law is just great and that it’s up to anyone suggesting otherwise to prove it empirically. I fretted about just this sort of possibility in my paper on Evidence Law under Victoria’s Charter: that the major bar to rights-focused reform of the law is the courts themselves and their inability to think outside the box that is the common law approach to a ‘fair trial’. The judgment was full of this: assertions of judicial experience, dismissals of practicality, blaming everyone else. All that was missing were references to ‘the genius of the common law’ (always a code for unqualified judicial discretion) and dismissals of comparative approaches as reflecting ‘cultural differences’.

If this practice continues, then the Charter will be a dead duck when it comes to court practice. Or, worse still, it will become a status quo menace, being exclusively used to attack legislation and executive conduct that dares to differ from time-worn (if not tested) traditions. If that happens, then I’ll be out there campaigning for the Charter’s repeal.

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