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.
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:
[I]t is appropriate to review briefly the circumstances in which her Honour found herself. Soon after the filing of the presentment on 22 November 2007 the date of the trial of A was fixed to commence on 31 March 2008. The applicant knew by at least 15 January 2008 that a criminal trial arising from the events portrayed in Underbelly was pending. As we have observed the applicant had assistance from the police in the making of the series. It would be difficult to believe that the applicant was not alerted to the fact of the pending trial by virtue of the police advising it on the series much earlier in time and certainly by the latter part of 2007.
In consequence of advance publicity about Underbelly appearing on Channel 9 and elsewhere in the media the matter was brought on for hearing before her Honour on 7 February 2008. The applicant had been notified of the hearing and was represented before her Honour. Requests were made by the DPP on behalf of the applicant to provide the Office of Public Prosecutions with copies of Underbelly. The applicant refused to do so. At the hearing before her Honour on 7 February 2008, the applicant offered to produce episodes 1 and 2 to the court on the following Monday but refused to provide the ‘uncut’ episodes. The DPP subpoenaed all 13 episodes. On Monday 11 February 2008 DVDs of those episodes were produced pursuant to the subpoena. They were viewed by the judge and the prosecution and defence overnight and the parties returned to court the following day, which of course was the day before the applicant intended to broadcast episodes 1 and 2. In the course of that day, a day in which her Honour was otherwise conducting a criminal trial, she made her orders. She had little assistance from the parties as to the drafting of those orders.
In short, Nine was in the wrong for not doing initiating proceedings itself and for not facilitating the OPP’s and defendant’s proceedings when they were eventually brought. Other parts of the judgment also blame Nine for not coming to the hearing with a detailed selection of alternative edits for the series and for showing the series in parts of Australia outside of the Victorian court’s jurisdiction and where few potential jurors were likely to be present.
Superficially, this is consistent with Charter s. 15(3). Nine was the one doing the expression, so it had a responsibility to comply with lawful restrictions. But, in my view, Nine’s responsibility was to inform itself of the relevant law on contempt and mistrial and determine for itself what will and won’t comply with it. Despite some speculation (and schadenfreude) in the media, I’m not at all convinced that Nine ignored its responsibilities in this area, especially given the potential penalties for contempt of court. Notably, the timing of the start of Underbelly (with the start of ratings season) and the timing of the trial meant the episode that detailed the events being tried – Episode 12 – would not have shown until after the trial was scheduled to finish. Indeed, Nine told the court that it wouldn’t have shown the episode until afterwards in any case. None of the series names the defendant (as, indeed, no-one is allowed to, though why is a mystery.) Rather, when the trial started, Underbelly would be up to Episode 7 – set some years before Episode 12 – and there would have been plenty of occasions for Nine (and, if necessary, the court) to make appropriate decisions based on the state of the trial.
The Court’s take on Nine’s responsibilities as a free expressor is much broader than a mere responsibility to inform itself of the relevant law and comply with it. Instead, Nine should have come to the Court itself, with episodes in hand, and basically asked the Court whether it was allowed to show the copies, which is a pretty limited take on the right to freedom of expression. The Court made great play about how Nine must have known about the trial, but isn’t it equally true that the Court and the OPP knew full well about the planned screening of Underbelly? Why couldn’t the Court (on the initative of the parties or otherwise) simply have issued a suppression order spelling out what things couldn’t be broadcast? The answer, alas, as I’ve spelt out elsewhere, is that the Court has never coherently spelt out its concerns. It has never, for example, explained why it’s quite OK for Melbourne’s bookshops to sell the book on which the series is based – it’s been a top seller here for a month – but not the series itself. Also, what is wrong with Nine requiring a subpoena before it hands over unedited and highly confidential episodes, whose leaking (by someone, and presumably not sourced from the subpoeaned court copies) as bootlegs is now causing both Nine and the Court considerable problems.
You get the distinct impression that Nine’s series is being banned precisely because Nine planned to make its own judgment about the law and to defend its view of its rights, rather than asking the court for its view. The court uses Nine’s failure to faciliate the suprression process to justify the most dubious aspects of that process: (1) the totally unjustified ban on the earliest episodes (set a decade before the events in the trial and which do no more than name some of the later players) as originally scheduled (in February.) The Court of Appeal itself concedes that the only real problem was with broadcasts immediately before and during the trial.); (2) the present absurdity, where Underbelly is easily available to all Victorians who are willing to breach Nine’s copyright. The latter situation, the court declared, ‘was entirely of the applicant’s own making’ and had no relevance whatsoever to whether or not the suppression order was justified.
In my view, what has to go ‘hand in hand’ with Nine’s ‘responsibilities’ under Charter s. 15(3) is the responsibility of the courts (or other lawmakers) to clearly spell out the relevant ‘lawful restrictions’ (and the parties seeking to rely on those restrictions to specify how they are about to be breached.) Human rights law is clear that such restrictions should be accessible, clear and appropriate. The contempt law applied by the Court of Appeal was none of those things. Moreover, the Court eschewed any responsibility of its own to identify the parts of Underbelly that are problematic – to Nine itself, which would have allowed Nine to show an appropriately edited version, which it continually offered to do – or to the community. For example, the Court, despite repeatedly identifying the ‘humanising’ of various players and the use of ‘actors’ as somehow problematic, dismissed Nine’s suggestion of ‘pixellation’ out of hand.
The Court was equally contemptuous of Nine’s suggestion that King J review each episode a week in advance of its broadcast. Ridiculous. She’s far too busy. Hence, the ‘solution’ of simply canceling Nine’s freedom of expression (a cancellation that is likely to be indefinite, given that the coming murder trial is not the last in the saga.) This is a considerable contrast to the approach in the United States and Canada, where such ‘prior restraints’ are viewed as a last resort, if allowed at all, with the courts bearing a considerable duty of finding any other alternative and to refrain from making fruitless orders like King Canute trying to turn back the tide of information about the gangland wars.
Although the Charter wasn’t applied in this case, it would do nothing to change this responsibility-free approach to making orders restricting someone’s free expression. The Charter’s conduct mandate doesn’t apply to courts when they exercising judicial functions (whether judicially or otherwise), on the ground of a (dubious) constitutional concern about state parliamentary authority over how Australia’s national common law develops. The breadth of this ‘common law’ exemption is demonstrated by the law that the courts relied upon to ban Underbelly. The Court of Appeal conceded that it was unlikely that the statutory suppression power could support a ban on the broadcast of a docudraa, as the power only extends to suppressing reports of proceedings, rather than the events underlying them. But that was no problem, because the Court instead relied on its inherent power to making any order it wants to ensure that trials are fair. Because this s a common law power – and of course involves the exercise of a judicial function – neither the interpretation nor conduct mandates apply to its exercise. Indeed, even if the statutory power had been relied upon and the interpretation mandate was used to read it down, the court could have simply relied on its inherent common law supprression power to fill the resulting gap. The court’s power to restrict freedom of expression to promote fair trials is therefore a Charter-free (and, hence, Charer rights-free and responsibility-free) zone.
The Court of Appeal didn’t just stop at the limits of its common law powers either. Last week’s judgment held that Justice King erred in banning all Victorians from publishing or exhibiting Underbelly, on the basis of a (vaguely explained or justified) constraint on the exercise of a court’s inherent jurisdiction. The real explanation is much simpler: a non-publication order directed at all Victorians would cover very many situations where no contempt was being committed. There is no possibility of contempt of court in showing Underbelly to the very many people who are ineligible for jury duty (e.g. children, the elderly, people with convictions, lawyers, etc.) Moreover, it’s difficult to see why an individual who is eligible but chooses to watch the series is causing any problem, as such individual acts hardly mean that 12 suitable jurors won’t be found. Rather, the only possible contempt problem is mass broadcast (and, even then, it’s not at all clear why broadcast outside of Melbourne is problematic.) Of course, the other situations may breach copyright law, but the court wasn’t exercising any power to stop that.
And yet, the Court was hardly contrite that four million Victorians have been subject to an unlawful suppression order for three weeks, instead blaming both Nine and the OPP for not assisting King J in drafting the orders. Moreover, the court also effectively repeated King J’s order in the form of a vague threat of prosecution:
[T]he fact that the [new] order is directed against the applicant only should not be misunderstood. It should not be treated by persons other than the named applicant as giving them carte blanche to publish any part of Underbelly howsoever the same may have been obtained by them. Obviously, any person with knowledge of the order who saw fit to publish Underbelly in Victoria prior to the verdict in the matter of R v [A] would run a grave risk of being found to have committed a contempt of court.
The Court of Appeal nowhere spells out to non-lawyer Victorians the many circumstances when showing or watching Underbelly would be unproblematic under the law of contempt. Once again, the court’s sole interest is in scaring people who are thinking of exercising their freedom of expression. Spelling out when expression remains free is someone else’s responsibility.