Charter applied again!

It’s a sign of the lacklustre start to the Charter that, on the cusp of its fifth month, its stunning news that the Charter’s actually been applied again. I’m actually late to this news, which was reported in the Herald Sun last week. This is the third time the Charter has been applied. The first time was Bongiorno J’s dodgy bail judgment in the Supreme Court in mid-January. The second was a Magistrates’ Court bail judgment a week later. And the third….. another Magistrates’ Court bail judgment. Here’s the article while I try to calm down:

A HUGE court backlog has seen a man accused of belonging to a Mokbel drug cartel freed on bail. Melbourne Magistrates’ Court heard Zlate Cvetanovski, 41, was unlikely to face trial until well into 2010, more than two years after his arrest by Purana Taskforce detectives. Mr Cvetanovski is accused of being an apprentice amphetamines cook in Tony Mokbel’s drug syndicate and of trafficking a large commercial quantity of methylamphetamine between June 2005 and April 2006. Police allege he was paid $200,000 to help manufacture amphetamines at a secret lab and that he had links to members of the Mokbel family. He is also charged with dealing with $72,175 in cash, alleged to be proceeds of crime. The court heard he was on bail for unrelated matters when arrested on returning from a gambling trip in Sydney last week.

Magistrate Peter Couzens said higher courts and the new Charter of Human Rights made it clear that defendants were entitled to have their cases heard without delay. A check by the prosecution with the County Court — where the case will be heard if Mr Cvetanovski is ordered to stand trial — indicated it would not be listed for at least two years from the time of his arrest. “By anyone’s standards, that type of delay is totally unacceptable,” Mr Couzens said. Defence lawyer Damian Sheales told the court that his own experience of delays at the County Court included a day where there were 19 trials awaiting judges. The magistrate said that had the case against Mr Cvetanovski been overwhelming, he may have denied bail in spite of the delay. But there were no fingerprints tying him to the drug laboratory, and the case relied heavily on the evidence of informers who were themselves drug traffickers, he said. Mr Couzens granted Mr Cvetanovski, of Avondale Heights, $350,000 bail, with conditions. He is due to return to court in July.

The magistrate seems to have applied Charter s. 25(2)(c):

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-

(c) to be tried without unreasonable delay…

(Again, Charter s.21(5)(b) could scarcely be relied upon, given that Cvetanovski has been on remand for all of one week!)

However, as previously discussed, the mere fact that a defendant has been denied an ‘entitlement’ doesn’t mean that any rights have been breached or that he gets a remedy. Here’s the run-down: Continue reading

Review: Australian Bills of Rights

Carolyn Evans and Simon Evans are colleagues of mine and, indeed, both hold senior positions in Melbourne Law School. So, trust this review at your peril. That being said, it’s worth mentioning that I find book reviewing to be a bit of a dubious exercise, at least for good books.  The reviews are either synopses – so why not just read the back cover? – or ‘review essays’, which aren’t really reviews at all. If you want to hear me blab about broader issues, then there are 67 other posts you should be reading instead. Surely the only point of reviews is to find out what (if anything, but there’s always something) is wrong with a book (which is not likely to be a topic covered on the back cover.)

So, let’s get the positives out of the way quickly: this book, written by two public law academics who have been studying parliamentary human rights statutes since before the Charter was a twinkle in Hulls’s eye and who’ve written the balance of the good articles on the ACTHRA and the Charter in the last few years, is mandatory reading for anyone who wants to (or has to) seriously engage with these peculiar statutes. In particular, a number of sections of Australian Bills of Rights simply have to be the starting point for all informed discussion in the next few years on the following issues:

  • parliamentary scrutiny (most of Chapter 2)
  • interpretation mandate (Chapter 3)
  • remedies (Chapter 4)
  • limitations provision (Chapter 5)

These sections are all notable not only for their rigour and depth, but also the breadth of their treatment of these issues, straying far beyond the text of each provision but not beyond their meaning. And the book’s discussion of the scope of the Acts (Chapter 1) and the relevant foreign law sources (Chapter 6) are certainly handy. Even at just 200 pages (quite small print) when you leave out the appendices, it’s easily worth the $95.

That’s enough praise, I think. Time for some criticism, starting with the front cover. Continue reading

Albrechtsen’s bodgy column

It looks like the Australian isn’t going to publish a letter to the editor I wrote in relation to Janet Albrechtsen’s recent column (‘Beware the Galloping Imperialist Judiciary‘) opposing a federal charter. Here’s what I wrote:

Janet Albrechtsen (23/4) repeats a common claim of the anti-charter-of-rights movement: that Canada’s provision allowing governments to override that nation’s Charter of Rights ‘has never been used, not once since the charter was introduced more than 20 years ago.’ She needs to obtain a better pamphlet. Override clauses were applied to hundreds of Quebec statutes in the 1980s, including twelve overrides by the Charter-friendly Liberal government, as well as by the governments of Saskatchewan, Alberta and Yukon Territory, on subjects ranging from language to education, agriculture and gay marriage.

You have to wonder why opponents of a charter need to make up claims about other countries and, for that matter, why the predicted judicial dictatorship is yet to emerge in the ACT (in its fourth year of its Human Rights Act) and in Victoria (in the fourth fully operational month of its Charter.)

I’ve heard this claim about Canada’s ‘notwithstanding clause’ (which is similar to the Charter’ s override provision) before. It seems to be a misunderstanding of one of two much narrower claims: that Canada’s federal parliament has never used the clause; and that the clause has never been used in response to a court judgment. Also, these facts – and Albrechtsen’s false claim, for that matter – are not necessarily evidence of a judicial monologue; they may also be evidence of the courts deferring (rightly or wrongly) to the legislature.

To improve my chances of publication, I didn’t go into another wrong claim in Albrechtsen’s column:

The real stealth bomb in a charter of rights is the interpretation clause. Hang in there if it all sounds a bit dry. Charter advocates will hope you start tuning out right about now. Section 3 of the British Human Rights Act – more or less repeated in the Victorian Charter – says that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” This is an open invitation to judges to ignore even the clearest of parliament’s intent. The House of Lords has said so, describing this innocuous little “reading down” provision as “dangerously seductive”, and “unusual and far-reaching in character”.

She’s right about Britain, but wrong about the Charter. That ‘more or less’  hides a crucial difference between s. 3 of the UK HRA and Charter s. 32(1):

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

Now, that omission’s gotta be deliberate!

The conclusion of my letter shouldn’t be taken as meaning that I back a federal Charter (or Victoria’s for that matter.) I just don’t think much of the ‘judicial dictatorship’ argument. Continue reading

The right to smell

Last Friday, the Supreme Court of Canada brought down two long-anticipated decisions on the constitutionality of using drug detection dogs (sniffer dogs) to find concealed drugs: one at a bus station, the other at a high school. Before I get to those decisions, it’s worth looking at how this issue is handled in Australia’s (pre-Charter) law, if only for its amusement value.

Seven years ago, the NSW police were doing an ‘operation’ on Sydney’s Oxford Street. Apparently, part of this involved hanging around in plain clothes around outside the NV Nightclub at 2AM in the morning, where a line of people were waiting to get in. Accompanying these cops was Rocky, a trained sniffer dog, who supposedly did what comes naturally to such dogs:

Rocky picked up a scent and led Senior Constable Richardson towards the source of such scent, namely the defendant. When Rocky reached the defendant he put his nose on the defendant’s pocket. Senior Constable Richardson then identified himself to the defendant, who nonetheless did not come to a halt but walked away. As he did so Rocky walked with him, indicating to Senior Constable Richardson the source of the scent that he had detected by placing his nose on the defendant’s pocket. The defendant became agitated. He stopped walking. Rocky stopped too and again put his nose on the defendant’s pocket. This occurred on a number of occasions in the course of which the defendant kept pushing Rocky’s head away from his pocket. Senior Constable Richardson then observed the defendant put his hands in his pocket and remove some plastic bags. At about that time Sergeant Gentle, who was then accompanied by Constable Schmidt, also asked the defendant to halt. The defendant did so and it would appear that a search of his person was then made by Sergeant Gentle or Constable Schmidt.

This nuanced bit of street policing wasn’t too fun for Glen Darby. The search of his ‘person’ revealed some dope and speed. However, things started looking up for him when he drew a Magistrate – NSW Deputy Chief Magistrate Mary Jerram – who not only found that the dog had ‘searched’ Darby, but also that the search was illegal (because the cops – as opposed to Rocky – didn’t reasonably suspect that Darby was carrying drugs before Rocky started nosing around – apparently being in a line to enter a nightclub on Oxford Street doesn’t count) and – in an exceedingly rare event – excluding the evidence against Darby from the courtroom. She even quoted the ICCPR are in the process. Nice to see that these things aren’t career suicide.

Alas, all of these decisions were appellable and in fact were overturned by the more straight-laced Justice O’Keefe. He said that he would have done the usual Australian judicial thing in relation to the question of excluding the evidence: letting it in on the grounds that the police didn’t kill anyone and Darby is a nasty moustache-twirling villain. But, as well, he held that Jerram was wrong to find that Darby was searched (that is, before the police searched him.) Sniffing, O’Keefe held, isn’t a search, because it doesn’t involve touching anyone. Basically, Rocky just searched the air surrounding Darby. So, the NSW Parliament’s panicked response to the original decision – hurriedly passing a new law authorising the use of sniffer dogs – wasn’t necessary. 

O’Keefe’s decision shows the limits of Australia’s common law when it comes to protecting people to privacy. Continue reading

Transition pains

I’m a big critic of Charter s. 49(2), the Charter’s main transitional provision:

This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

My main gripe is that I think this provision is far broader than is necessary and as subtle as the sledgehammer-to-crack-a-nut legislation that the Charter is supposed to prevent. However, I also think that it’s a highly ambiguous provision. What does ‘affect’ mean? What does ‘proceedings’ mean? What does ‘commenced or concluded’ mean? (And some judges can’t even work out what ‘before the commencement of Part 2’ means!) In this regard, s49(2) is by no means alone.

The Court of Appeal last week did its best to grapple with another transitional provision (in the Crimes Act 1958), one of the thousand or so that are scattered throughout Victorian legislation: Continue reading

The Charter and The Chaser

All charges against the Chaser crew have been dropped for their globally famed APEC stunt. This is a tremendous disappointment to me. Not, of course, because I wanted the crew to be convicted, but because it would have been a great test of the malleability of security legislation to encompass freedom of speech (and the media’s role in a democracy.)

The relevant offence provision in the APEC Meeting (Police Powers) Act 2007 is:

19 (1) A person must not, without special justification, enter a restricted area or any part of a restricted area.

The whole fun point of the Chaser stunt is, of course, that they did enter a restricted area, despite the ring of steel. Hence, they face the back-up ring of (lawyers’) horsehair. But did they have a ‘special justification’, from the list exclusively set out in s37(2) of the Act?  Nick Cowdrey’s decision to let the crew off was based on three grounds, all dodgy.

First, he felt that all the crew could apply the general criminal law defence of honest and reasonable mistake of fact, because they never thought that they’d get into the restricted area. This is nonsense, because that defence isn’t about what they thought would happen, but about what they thought was happening. I can’t see any basis for a claim that they reasonably thought that they weren’t in a restricted area, what with the ring of steel, etc.

Second, he applied s37(2)(b), which provides a ‘special justification’ if ‘the person is required, authorised or permitted to be in the area by the Commissioner or a police officer’. Maybe the crew thought that they had been given permission to enter by the police officer? Again, nonsense. Permission given as a result of fraud isn’t permission. So, if the crew knew that the police stupidly thought that they were Canadian officials, then they couldn’t believe that they had permission (and, indeed, didn’t have a valid permission.) Could the Chaser crew have reasonably believed that the police were happy to let the Chaser crew – of all people? – into the ring of steel. No way.

Third, he applied s37(2)(c) – if ‘the person is required to be in (or pass through) the area for the purposes of the person’s employment, occupation, profession, calling, trade or business or for any other work-related purpose’, but only to some of the crew. He reasoned that the employees were just following the orders of Julian Morrow.  This isn’t nonsense, but if correct shows that this exception works in a strange way. You commit no offence if your boss tells you do to something? Just obeying orders… Surely, not all orders could count for this defence. And, anyway, if following orders is a justification, why isn’t giving orders. (According to Cowdrey, Morrow, the orderer, could still be convicted, but Cowdrey believed that he’d be given a slap on the wrist anyway.)

I’ve long thought that s37(2)(c) applied myself, but for different reasons to Cowdrey’s and not just to Morrow’s underlings. Continue reading

Justice Heydon’s 2020 submission

Before the 2020 summit, there was some controversy about the role of former judges in the governance stream. But what about current judges? For all the usual boring reasons, sitting judges have to keep well away from public discussions about law reforms, especially ones that might raise constitutional problems. That may have proved frustrating for Justice Heydon.

Today, the High Court made a terse contribution to a major current debate in sentencing law: whether and how to distinguish between different drugs when it comes to sentencing possessors and traffickers. Back in the olden days, courts used to routinely distinguish between soft and hard drugs (later adding a ‘middle’ category.) Hard drugs (e.g. heroin) merited a higher sentence, due to their harmfulness, than soft drugs (e.g. cannabis.) But the kids these days are using new drugs that make these distinctions complex. In particular, where does ‘ecstasy’ (as they call it) fit in? In the 1990s, judges mulled over whether the ubiquitous party drug was all that much worse than dope. But, this decade, with nice kids dying and gangland wars and all that, judges came to see ecstasy as ’emerging as a very significant community problem.’

Two years ago, a five-judge bench of the Victorian Court of Appeal responded to all this confusion by ruling that the Victorian drug statute – where the maximum sentences are all about quantities of drugs and their commercial nature – barred courts from considering the general harmfulness of a particular drug at all. Last year, it applied the same reasoning to the Commonwealth’s drug statute, dismissing an ecstasy possessor’s complaint that his sentencing judge had declared that “In general terms the courts equate ecstasy, in terms of sentencing, as being similar to heroin.” The High Court, worried about an apparent variation amongst the states in how they sentence federal drug offenders, took the case. Today, a majority ruled that judges neither could nor should try to make a comparison between different sorts of drug. However, they left unresolved the question of whether sentencing judges can still take account of distinguishing features of a particular drug as part of their (sigh) ‘instinctive synthesis.’

Justice Heydon wrote a separate judgment and took a different, nastier line: Continue reading