The right to leak

Topically enough, today brings the first Charter case on the right to leak (an aspect of the right to freedom of expression.) But don’t get too excited: Charter s. 49 – as per usual, this year – ensured that the Charter didn’t apply. Indeed, the real news is that Warren CJ’s summary dismissal (as part of a unanimous Court of Appeal judgment) of free speech in the Underbelly case is no one off.

The leaker is Acting Senior Sergeant Kathleen Zierk who, in 2006, was in charge of support services in a division of Victoria Police, including responsibility for speeding cameras. She had a friend who, despite being a former cop himself, wanted to get out of a speeding ticket. A former cop. I’m shocked. And he asked Zierk to help him research the operation of speeding cameras. She obliged, by sending him five police manuals on how speed cameras work, including the message “but remember, you didn’t get this from me.’

These sly acts of espionage were craftily perpetrated on Victoria police’s own e-mail network. Zierk got pinged to Ethical Standards when someone noticed the suspiciously large document. But she wasn’t charged with perverting the course of justice. The slight snag was that the manuals were mostly publicly available, the parts that weren’t were already known to Zierk’s little mate, and, anyway, they provided nothing that could be misused to get out of a speeding ticket. To the contrary, they probably would have had to be disclosed as part of prosecutorial duty to disclose. In other words, it was a most benign leak. (For the record, Zierk claimed that her ‘you didn’t get this from me’ was just common Academy banter, a point confirmed by another witness. Right.)

Zierk was therefore prosecuted under a special provision of the Police Regulation Act that, it was claimed, covered benign leaks:

127A(1) A person who is a member of police personnel must not… disclose any information that has come into his or her knowledge or possession, by virtue of his or her office or by virtue of performing his or her functions as a member of police personnel, if it is the member’s duty not to… disclose the information. Penalty: 240 penalty units or imprisonment for 2 years or both.

Zierk’s conduct clearly satisfied most of this. But a magistrate ‘no cased’ her prosecution on the basis that it wasn’t proven that she had a ‘duty not to disclose’ the not-so-top-secret camera manuals. DPP v Zierk [2008] VSC 184 is the DPP’s appeal against that decision.

The interesting Charter point was the DPP’s desperate argument that Zierk’s duty not to disclose was defined by… a manual: the Victoria Police Manual. Here’re the relevant bits (but remember, you didn’t get this from me). Continue reading


Justice King suppressed it. Roberta Williams and Judy Moran said she did the right thing The Court of Appeal lifted the suppression, except for Channel Nine, but did its best – successfully – to chill everyone it could from even watching it. And, now, a new censor rises:

Media Release – 29 May 2008 – Statement by the Director of Public Prosecutions Concerning Television Series ‘Underbelly’

A Supreme Court jury today convicted Evangelos Goussis of the murder of Lewis Moran. As a result of the verdict, the orders previously made by Justice Betty King and the Court of Appeal prohibiting the publication of the television series ‘Underbelly’ or any part of it in Victoria cease to have effect.

However, due to there being a number of criminal proceedings pending in Victoria which could be adversely affected if ‘Underbelly’ were to be shown, the Director of Public Prosecutions, Mr Jeremy Rapke QC, today cautioned members of the public and commercial organisations from deliberately publishing any part of ‘Underbelly’ in Victoria. He said that he would take whatever steps were necessary to ensure that accused persons involved in those cases received a fair trial free of any adverse publicity.

Mr Rapke said – “I will not hesitate to take contempt of court proceedings against any person or organisation that deliberately publishes ‘Underbelly’ or any part of it“.

When will the Commonwealth’s Classification Board – the actual censor – join in? (After all, the very first people to call for Underbelly to be taken off TV was the Australian Family Association, who said it breached the Australian Commercial TV Code of Conduct.)

But one of these people is not like the others. That’s right: Judy Moran and Betty King have more in common than their outrageous glasses. Neither of them is bound by the Charter. Nor is the Court of Appeal or the Commonwealth’s Classification Board of the Australian Family Association. But Jeremy Rapke sure is, three times over:

4(1) For the purposes of this Charter a public authority is-

(a) a public official within the meaning of the Public Administration Act 2004; or

(b) an entity established by a statutory provision that has functions of a public nature; or

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority…

And that changes the rules. Well, this one, anyway:

38(1) …[I]t is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Now we all know which right is being limited. And there are no Charter-based fig leaves for the DPP. The suppression is aimed (as it always was) at everyone, not just a corporation. And Mokbel was charged after 1/1/7, so Charter s. 49(2) doesn’t apply either. He’ll be the first gangster to have all his Charter rights. And this will be the first gangster proceedings where everyone will be free to use the Charter to the max.

So, was Rapke’s threat – no, scratch that, promise! – to prosecute anyone – every person or organisation – who publishes Underbelly – ‘imparts [that] information and [those] ideas’  – in every circumstance whatsoever lawful? This raises the general question that I addressed in an earlier post: when is it ever OK for a public authority to limit anyone’s rights?  As it happens, this example illustrates both possible approaches to this question. Continue reading

The Charter and abortion

The Victorian Law Reform Commission today tabled its report on the decriminalisation of abortion, proposing three reform models. A conscience vote on whichever model the government chooses is expected in the Victorian Parliament before the end of the year. But what role will the Charter play?

The shorter answer is: none. The medium answer is:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

But the long answer is: jeez, yet another example of bad drafting! Section 48 is yet another unique Victorian provision, the product of the dreaded meddlers who couldn’t leave the Consultation Committee’s draft well alone.

The first problem: what does s48 actually do? Here’s what the VLRC thinks it does:

The Charter, therefore, has no effect upon the law of abortion in Victoria, and the rights contained in the Charter are not applicable in abortion cases.

Well, the first bit’s gotta be right, though it isn’t very specific. The major provision of the Charter that ‘affects any law’ is the interpretation mandate. It’s clear enough that Charter s. 32 doesn’t apply to abortion and child destruction laws. However, the status of other Charter provisions that are about laws – the requirement of a statement of compatibility, SARC’s reporting function, the declaration power – is less clear, because none of them have any legal effect. Indeed, the Charter says this explicitly for the statements and declaration power. So, arguably, they aren’t affected by Charter s. 48. If the meddlers meant to exclude Charter ss. 28, 30 & 36, why didn’t they use the language of Charter s. 31(5), which provides that the Charter ‘has no application to’ provisions that are the subject of an override?

But I’m more dubious about the final part. Charter s. 48 says nothing about ‘cases’. It doesn’t use the language of Charter. s49(2), which says that the Charter doesn’t affect certain proceedings. Instead, it talks about laws. Abortion laws. Child destruction laws. Proceedings involve lots and lots of other laws: procedural laws, evidence laws, general substantive laws, the Charter’s rights. Why on earth should people, say, charged with the offence of abortion be denied the righ to a fair hearing? Or to the ban on retrospective penalties? Or double jeopardy? Or privacy? Or freedom from discrimiantion? That being said, Charter s. 48 refers broadly, albeit vaguely, to ‘any law applicable to’ abortion or child destruction, so who knows how far that will go? I’m betting that the meddlers have no idea. The EM, aside from simply restating Charter s. 48 verbatim, clarifies only that ‘any law’ includes both statutory and common law. This is a (unncessarily clumsy) reference to both the terms of s. 65 of the Crimes Act and the key Mehennnit decision (although the VLRC correctly states that Mehennit is an exercise in statutory interpretation, not common law analysis.)

And the VLRC’s complex recommendations on decriminalisation make the question of what is an abortion law very interesting. Continue reading


Well, what do you know? Just three or four hours after I published my glowing review of Underbelly and the suppression order against the show has been lifted. Was it me?

Actually, has it lifted? Here are the terms of the order:

1. That General Television Corporation Pty Ltd and/or any related corporate entity be prohibited from publishing the television series ‘Underbelly’ or any part thereof in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].

2. That General Television Corporation Pty Ltd and/or any related corporate entity be prohibited from publishing on the internet in Victoria the ‘Family Tree website – inside the Underbelly, which looks at the evolving relationships between the key characters’ until after the trial and verdict in the matter of R v [A].

We’ve had the verdict, but has the trial finished? There’s still the sentencing to go. Do we still need to suppress Underbelly so that King J’s sentencing is untainted by all the prejudicial colour and drama? But, wait a second, she watched nearly the whole thing back in February! Surely, she can’t sentence Goussis, which involves so many difficult factual findings. How will she separate fact from fiction?

On a Charter note, observe that neither the interpretation mandate nor the conduct mandate apply to suppression orders. Any ambiguity in the meaning of the term ‘completion of the trial’ will need to be resolved without reference to human rights. Of course, that’s how the orders were reached in the first place.

And where to after the Goussis verdict? Next stop, his appeal. What’s to bet that one of his appeal grounds is the prejudice created by the insanely heightened interest in Underbelly (complete with readily accessible floods of bootlegs and downloadable versions – who are you really burning, you fiends?) caused by… King J’s suppression order. Any chance Goussis had of scoring a jury who were compeltely ignorant of the gangland wars was totally wrecked by the media storm surrounding KIng J’s suppression order and the subsequent appeal. Fair trial, my arse.

And, wait, there’s more. Continue reading

Review: Underbelly

Well, I’ve now seen the first twelve episodes. I watched them over a week, whereas Justice King had to do the same in one night. (For some reason, she skipped episode 7, a fascinating episode focusing on the various women in the series.) Crucially, last night I watched episode 12, which is the one that features the murder of Lewis Moran. The trial of Evan Goussis for that murder, presently in its endgame in the Supreme Court of Victoria, is of course the reason why King J suppressed the show:

In my view it is far more important that the criminal justice process works, than that a channel make a profit. Accordingly, I am going to suppress the publication of the series “Underbelly” in Victoria, all 13 episodes. I further suppress in Victoria any publication on the Internet of the series together with any publication on the Internet of the part of the site that shows the history, the inter-relationship of the individuals between each other, the cast of characters and their associations.

Justice King’s order didn’t just prevent any prejudice to criminal justice but also stopped anyone in Victoria from judging the series (and King J’s order) for themselves. The Court of Appeal, while upholding King J’s findings, narrowed the order she made:

In our view that order was too wide. It purported to bind every person in Victoria.Whilst we consider it is clear that a suppression order made pursuant to the power granted under s 18 of the Supreme Court Act, and indeed other orders made in the interests of justice pursuant to the inherent power of the Court may be expressed in very wide terms, it was not necessary for order 1 to be as wide as that finally drafted. In our view an order made against the applicant not to publish the program Underbelly in Victoria until after the completion of the trial was all that was necessary. Clearly, however, any person who with knowledge of the order sought deliberately to frustrate the effect of the order could be liable for a contempt of court.

This narrowing, combined with Channel Nine’s decision to make DVDs of the series available for sale outside of Victoria, therefore allows Victorians – at least those who are up for importing the DVDs from interstate – the opportunity to judge for themselves.

The only constraint on us is that we don’t frustrate the trial. Of course, the Victorian Court of Appeal didn’t bother to spell out what would be obvious to anyone with legal training: that once the trial began, the only people who cannot safely watch the show are the twelve jurors presently deliberating on Goussis’s verdict. Certainly, people like me who are (alas) ineligible for jury service have no plausible constraints on that aspect of their freedom of expression. But now that I’ve watched it – and, therefore, according to our learned judges, am incapable of mulling over Goussis’s guilt without prejudice – I have to be careful about not infecting those same jurors with the same dreaded Underbelly-transmitted disease, if they so happen to read this blog. Oh the burden of justice.

So, let me do my civic duty: Goussis jurors, stop reading this blog. Now! I mean it. Shouldn’t you be deliberating anyway? Naughty juror. Out yourself to Justice King immediately.

For the rest of you, the secret of Underbelly: Continue reading

The scope of the interpretation mandate

The Charter’s two most feted (and, to date, little-used) provisions are its interpretation mandate:

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.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

and its declaration power:

36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

These provisions won’t turn Victoria’s more draconian laws into rights-friendly ones. But it may ensure that, when parliament expresses itself flexibly, unclearly, unintelligibly or thoughtlessly, the courts will have good reason to resolve the mess in a rights-friendly way. And, when the mess can’t be resolved, the courts can raise a (small) stink about it.

But when do these special rules apply? Their scope is only as wide as the term ‘statutory provision’. That’s defined in the Charter as follows:

statutory provision means an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument

And what’s an ‘Act’ or a ‘subordinate instrument’? These words are defined in the Interpretation of Legislation Act 1984, which self-referentially tells us:

38 In all Acts and subordinate instruments, unless the contrary intention appears-

Act means an Act passed by the Parliament of Victoria

subordinate instrument means an instrument made under an Act– (a) that is a statutory rule; or (b) that is not a statutory rule but- (i) contains regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes; or (ii) is of a legislative character…

Seems pretty wide? But it’s not as wide as the ACT, whose interpretation mandate also covers:

  • old acts of other legislatures (the UK, the Commonwealth and NSW) that were grandfathered in when the ACT got self-government
  • instruments that are not legislative in nature that are made under an Act or instrument or a power under given by any law

The former covers things like the Magna Carta while the latter covers things like search warrants. In the ACT, but not in Victoria, these things can now be re-interpreted under the new mandate.

Still, some laws that apply to Victorians will miss out. The two most obvious ones are the common law and Commonwealth statutes. In its Alert Digest No 6 of 2008, SARC picked up a third category. Continue reading

The rights of inhalers, the diseased, sex workers and blood donors

Another SARC report, another analysis of the rights of the less popular (and blood donors.) Alert Digest No. 6 of 2008 raised the following human rights concerns:

  • Drugs, Poisons and Controlled Substances (Volatile Substances) (Repeal) Bill 2008: This bill removes the sunset clause from  a 2003 package of harm minimisation measure for kids who use inhalants, ranging from searches to confiscation of devices to detention until a willing carer arrives, all mediated by a requirement to act in the best interests of the child. SARC asked, not only whether these measures were reasonable limits on kids’ rights to movement, privacy, liberty and property, not to mention discrimination on the basis of age, but also whether adults were being discriminated against because the harm minimisation measures cut-off as soon as an inhalant user turns 18.
  • Public Health and Wellbeing Bill: This massive bill was accompanied by 25 small-type Hansard pages of statement of compatibility. SARC’s report analyses the bill according to its effect on:
    • individuals: are measures to tell people who may be diseased to submit to testing and treatment (at pain of criminal penalties); control their movement (using force); require people involved in needle-stick and other incidents with medical workers, police officer and prison guards to be tested for disease (again using force); test the dead for disease; and control mass movements during health emergencies reasonable limits on the bevy of rights these measures engage?
    • activities: SARC focussed on brothels. Should parliament have a specific provision against sex workers being ‘required’ to service clients that only covers narrow circumstances (like clients refusing to wear a condom?) Should sex workers be allowed to tell clients the results of their compulsory medical check-ups? Should DHS officers be allowed to enter brothels at any time they please to check whether the towels are clean or everyone’s wearing a condom?
    • information: Here, SARC forcussed on blood donation, where donors and the Red Cross get a statutory defence from liability so long as blood is tested and donors are asked some questions. Should all men be asked whether they’ve had male-to-male sex in the last twelve months, or is a different question more appropriate?
  • Public Wealth and Hellbeing Bills: Tax, appropriation, etc…

Don’t forget that SARC has advertised for public submissions on the Health bill. They close tomorrow.