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).

Resuppressed

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.

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.

Unsuppressed

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.

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:

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.

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.

Interpretation mandate applied

In what appears to be a Charter first, a judgment is now on Austlii showing an application of the Charter’s interpretation mandate, Charter s. 32(1), to reject a previous interpretation of a provision. The actual decision was made on 1st April, but the reasons were only announced on 1st May and only appears on Austlii very recently. (VCAT seems to be tardy in assigning judgment numbers and seems to be doing so in reverse chronological order.)

Guss v Aldy Corporation Pty Ltd & Anor (Civil Claims) [2008] VCAT 912 is a procedural ruling as part of a long-running dispute about misleading and deceptive conduct in relation to a sale of a Docklands apartment. (The nature of the dispute is not specified, but it’s well known that there have been lots of disputes of this sort in relation to the Docklands, where a fall in property prices has left many off-the-plan purchasers owing more than they own.) Joanne Guss hasn’t made herself popular by being very tardy in pursuing her claim, missing many case management deadlines. The last straw as that she didn’t show up to her latest ‘compulsory conference’ on 22 November last year. The respondents convinced the tribunal member to put the action out of its misery using this provision:

87 If a party does not attend a properly convened compulsory conference-

(a) the conference may proceed at the appointed time in the party’s absence; and

(b) if a member of the Tribunal is presiding and all the parties present agree, the Tribunal, constituted by that member, may- (i) determine the proceeding adversely to the absent party and make any appropriate orders; or (ii) direct that the absent party be struck out of the proceeding.

All the other parties happilly agreed that the claim should be dismissed with costs.

Alas, for Aldy Corporation, that wasn’t the end of the matter. Guss sought to use this statutory provision to revive her claim:

120 (1) A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.

(4) The Tribunal may- (a) hear and determine the application if it is satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing; and (b) if it thinks fit, order that the order be revoked or varied.

Aldy resisted the application on the ground that the compulsory conference that Guss missed wasn’it a ‘hearing’. In making this argument, Aldy had some powerful arguments on its side:

• Compulsory conferences are designed to promote settlement. VCAT’s main role in such hearings is adminstrative
• The VCAT Act has one division for ‘hearings’ and another for ‘compulsory conferences, mediation and settlement’
• The provisions on compulsory conferences assume that they take place ‘before’ hearings
• Pizer’s Annotated VCAT Act takes the view that conferences aren’t hearings
• There were two decisions of VCAT (including one by its President in 2004 and another in September 2007) holding that mediations (different from compulsory conferences but in the same division) aren’t hearings for the purposes of s. 120

VCAT member Alan Vassie gave three reasons for rejecting these arguments. First, although VCAT mainly plays an administrative role in conferences, its exercise of s. 87 is a judicial function that involves hearing evidence and so forth. Second, s. 120 is a remedial provision and should be interpreted broadly. And, third, the Charter:

New blog features

This blog recently passed its 100th post. I thought I’d mark that by drawing attention to three new features I’ve recently added:

• ‘About the Charter‘: a short essay on the Charter’s main features. This is adapted from the forthcoming book on human rights and criminal justice in Australia, which I’m writing with Terese Henning, Jill Hunter and Kate Warner, and which Federation Press will publish in 2009.
• ‘Cases‘: a page listing the posts that concern specific Victorian cases.
• ‘Topics‘: a page listing some other posts that concern particular Charter issues: drafting, courts, dialogue, particular rights and so forth.

These can be accessed by clicking the links on the top right of your page.

Can public authorities limit rights?

In several recent posts, I’ve criticised treatises (here and here) and courts (here and here) for saying that public authorities are allowed to breach their conduct mandate if their conduct satisfies the Charter’s test for limiting rights:

7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom…

So, even though public authorities are all supposedly bound by this conduct mandate:

38(1) Subject to this section, it 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.

they can just ignore it if what they propose to do is a reasonable limit on the right in question. For example, the Dental Board can tell a dentist to cut out the religious talk and VCAT can keep a person in a health facility if they decide what they are doing is reasonable. Tribunals that have taken this approach to date don’t spend much time assessing how the reasonableness of their conduct is ‘demonstrably justified’, instead skipping to claims – simply asserted, rather than justified – about whether there are any less restrictive alternatives available.

I think applying the reasonable limits jurisprudence to conduct is a terrible (not to mention lazy) approach to human rights, as it places assessments of whether rights can be breached in the hands of the very people doing the breaching Instead, my view is that Charter s7(2) only permits rights to be limited by laws. This of course leaves lawmakers with carte blanche to breach rights, in accordance with the prinicple of parliamentary (and common law) sovereignty that the Charter is at great pains to uphold. But my approach limits this limiting role to lawmakers. Public authorities can generally only ignore their conduct mandate if those laws allow them to do so. The relevant test is in the (universall ignored) Charter s. 38(2):

38(2) …does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Charter s38(2) requires all public authorities to assess what actions are reasonably open for them to do given the laws – Charter and non-Charter – that govern them. So, Dental Boards, VCAT and every other public authority simply assess whether or not their proposed conduct would limit a right and, if it does, whether alternative courses of actions, if any, are reasonably open given the remainder of the law. They aren’t limiting laws, parliament (and whoever makes the common law) is. The only question of reasonableness that public authorities have to assess is what options are left reasonably open to them by the available laws, be they non-charter statutes, the common law or conflicting rights in the Charter.

I think the sense of this approach is self-evident. It is also backed by the opening words of section 38(1) (‘Subject to this section‘, i.e. not the rest of the Charter) and the fact that s38(2) admirably allows for the circumstance when laws limit rights, reasonably or not. But am I right?

The right to me?

Glenn McNeill, convicted of the notorious Norfolk  Island murder of Janelle Patton, yesterday lost his appeal in the Federal Court. The case is a landmark one for the application of a bill of rights in an Australian court. Not the Charter, nor the HRA, nor the (non-existant) Norfolk Island BoR, but rather the New Zealand Bill of Rights Act 1990, the oldest extant statutory bill of rights.

In R v McNeill (Ruling No 1) [2007] NFSC 2, a voir dire on the admissibility of a confession made by McNeill to the Australian Federal Police while he was awaiting extradition from his New Zealand hometown of Nelson, Weinberg J ruled that any alleged breaches of McNeill’s rights under NZBORA were relevant to a number of quetions of admissibility that arise under Norfolk Island’s evidence law, which includes the uniform evidence legislation and an older statutory rule on admissibility that (arguably) the NI legislature forgot to repeal. I’ve argued elsewhere that this wide-ranging consideration of breaches of a rights statute as ‘relevant’ to a variety of evidence law remedies – for impropriety, unreliability and unfairness – may actually be more generous than the consideration of breaches of Charter rights in Victorian evidence law decisions, due to Charter s. 39(1)’s focus on unlawfulness. Interestingly, Weinberg J is now on Victoria’s Court of Appeal and presumably will be able to decide this question himself.

Today’s Federal Court appeal, McNeill v The Queen [2008] FCAFC 80, followed Weinberg J’s approach but gave relatively short-shrift to it, endorsing Weinberg J’s view that the Australian Federal Police – particularly when the continued an interview after McNeill tried and failed to contact his lawyer and consented to go on – gave  him all the rights due to him. They did, however, find that Weinberg J came close to breaching McNeill’s rights under Norfolk Island law, specifically two more old rules that the Islanders failed to repal when they hurriedly updated their evidence and procedure rules in the wake of Patton’s death: the right to give an unsworn statement and a complete bar on judicial commentary on a decision not to give sworn evidence (identical to Victoria‘s.) McNeill gave what is almost certainly the last ever dock statement in an Australian courtroom and Weinberg J came ‘close to the line’ by pointing out to the jury at some length that it was nothing like a sworn statement. We’ll see, when McNeill seeks special leave in the High Court, whether the current judges treat this aspect of the right to silence as seriously as they have in past cases.

But all that rights talk is just an excuse for me to highlight the really interesting part of the appeal: a ruling that a statement by me was inadmissible. At his appeal, McNeill sought to adduce some new evidence of his innocence:

The further evidence relevant to this topic is contained in an affidavit of Mr Geoffrey James Atkinson sworn on 3 December 2007. Mr Atkinson is a solicitor and a member of the firm of solicitors acting for the appellant. He annexes to his affidavit an electronic message to the appellant’s counsel from one Dr Jeremy Gans and photocopies of pages from a book entitled Norfolk: Island of Secrets published by Mr Tim Latham in 2005. Copies of three pages of the book are annexed to the affidavit.

Cool!

Art or crime?

Today’s morning papers cover two controversies about art. The pictures say it all:

Queensland painter Van Thunh Rudd (pictured, centre), who has a history of poitically provocative art and clashes with authority, has had his subtle depiction of Ronald McDonald burning a monk with an Olympic torch  barred from an exhibition being run by Melbourne City Council. The MCC claims that the work doesn’t fit the ‘Ho Chi Minh City’ theme and breaches trademark law, whereas Rudd claims that the figure on the left depicts a famous 1963 self-immolation in that very city, a human rights protest that contrasts with globalism, represented by Mr McDonald and his torch. Instead, he alleges, the refusal is censorship by the MCC’s pro-Chinese mayor. If Rudd is right, then Charter implications are obvious, as the MCC is a public authority (Charter s. 4(1)(e)) and cannot act incompatibly with Rudd’s right to freedom of speech unless a law makes it reasonable for it to do so (Charter s. 38). Is there a law that makes it reasonable for a public authority to reject an otherwise eligible artwork from an exhibit on political grounds?

Meanwhile, up in Sydney, Melbourne photographer Bill Henson, has had his exhibition of photos of landscapes, architecture and naked kids closed down by the NSW police, egged on by talkback radio and child abuse campaigners. The police are concerned that the nude photos – of 12 and 13 year-olds – may be child pornography, which has the following definition in NSW:

“child pornography” means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

Henson and his supporters claim the photos are art (and taken with the consent of children and parents.) However, Van Thunh Rudd’s uncle, Kevin Rudd, has joined a line of politicians falling over themselves to declare that the photos are ‘absolutely revolting’, don’t let ‘kids be kids’ and have no artistic merit. The first two opinions seem to be difectly relevant to the definition of child pornography, wheras the last would foreclose the third of the three relevant defences in NSW to disseminating child pornography:

(a) that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child pornography, or

(b) that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC), or

(c) that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose…

The middle defence may not help much either, as the National Classification Code says that an RC publication includes:

[p]ublications that… describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not);

The Publications Guidelines add that ‘sexualised descriptions and depictions of nudity involving minors under 18 generally warrant ‘RC’ classification’. ‘Sexualised nudity’ is defined to include ‘Includes poses, props, text and backgrounds that are sexually suggestive.’ Yikes. The NSW offence carries a penalty of ten years in prison. But at least Henson has the defence of artistic purpose, there.

Henson’s real problems are in his home state of Victoria. According to today’s paper, he took the photos in his Melbourne studio. Given Victoria’s laws, any defence he raises based on artistic merit may depend on the support of the Charter.

Underbelly hilarity

While Evan Goussis’s jury mulls over its verdict, I’ve just started watching Underbelly Uncut, which was sent to me complete with its idiotic, extra-legal and over-the-top sticker:

NOT FOR SALE, DISTRIBUTION OR EXHIBITION IN VICTORIA

Not to mention the special uncut tagline:

INCLUDES SCENES THEY COULDN’T SCREEN ON TV

No kidding.

The funniest bit is the piracy warning that screens at the start. I bet I’m not the only person who burst out laughing at that one. The stern message warns viewers that pirates are burning the careers of Australian writers, complete with images of fire. A pity that warning wasn’t included in Justice King’s copy. As the DVD cover reminds us: “Never before has one series cause so much controversy.’ How will Channel 9 advertise the TV series in Victoria, if it ever shows? “See Underbelly the way it was supposed to be seen: with ads.”

So much for the colour, drama humorous dialogue. Onto the salacious behaviour…

And now I’ve watched the first three episodes, which happen to be the exact three that were in issue in Channel Nine’s appeal to the Court of Appeal of Victoria. Gosh they’re good. Poor old Tracey Seymour. And where is Tom now?

So, why weren’t we allowed to watch the first three episodes again?:

The right to religious dentistry

Those folks at VCAT sure get some… interesting cases. Dental Practice Board of Victoria v Gardner (Occupational and Business Regulation) [2008] VCAT 908 is the first ever case to be decided by VCAT under the (kinda) new Health Professions Registration Act 2005. It involves Highton dentist Paul Gardner:

In 2006 Dr Gardner came to the attention of the Board following a complaint by a patient. In brief, the conduct complained of was an inappropriate and unsolicited advice made to the patient suggesting that he could assist her condition of paranoid schizophrenia. He suggested to her that she was possessed by evil spirits, suggested she should attend his church for spiritual healing, and suggested once this had occurred she could discontinue the medication prescribed for her.

Dr Gardner explained to the Board that the complaint concerned the use of his religious beliefs in his dentistry:

One of the reasons my practice is building at such a rate is that we successfully deal with the spirit of fear that oppresses so many patients (2 Timothy 1:7). This spirit of fear is the cause of behaviours such as needle phobia, non-attendance leading to a mutilated dentition, gagging, anxiety, crying and vomiting. I say a simple command prayer and the behaviour ceases and does not return. The patient leaves feeling different and knowing that they have been touched by Jesus Christ. Please note that this is offered, never forced, and rarely rejected, and that I have been quietly serving my patients in this manner for 2 ½ years.

Alas, this letter didn’t settle the issue. Indeed, the Dental Practice Board ordered Dr Gardner to attend counselling about the dangers of ‘dual relationships’, applying its own Code of Practice on Professional Boundaries, which contains some surprisingly mild guidelines encouraging dentists to think twice about entering into various non-dental relationships with dental clients:

In situations such as these, it is reasonable to think that a person’s professional judgement could be clouded if, for instance, treatment did not go well or if the personal relationship was in some way altered.

Think of the teeth! Dr Gardner didn’t respond well to the counselling suggestion, initially demanding a counsellor who shared his religious beliefs, then issuing ‘unrelated’ demands and, finally, seeking $175,000 compensation from the Board with $7,000 accruing for each additional week. The Board responded by inviting VCAT to determine that this non-compliance with the Board’s order was misconduct.

Dr Gardner relied upon the Charter, especially Charter ss. 14(2) and 15(2):

Dr Gardner claimed that the Boards determination breached the Charter of Human Rights and Responsibilities. It was difficult to follow the way in which the Charter was said to apply in this case. We asked Mr Peter Olney to explain this to us on Dr Gardner’s behalf. It appeared that he relied on the rights to freedom of expression and freedom of religion protected by the Charter. He said that the fact that the Respondent had been required to undergo counselling limited his right to speak with patients about other matters in his surgery. In our view the Charter argument is misconceived. The Charter was not operative at the time of the Panel’s determination.

Even if the Charter did apply, we record our view that the Professional Boundaries document issued by the Board does not appear to contravene any of the terms of the Charter. None of the rights enshrined in the Charter are absolute. Each right must be assessed in context. No dentist has an unfettered right to say what he likes to a patient or to express his religious views to a patient without restriction. The Respondent is obliged to attend for counselling as a condition of the determination that has been made. The requirement imposed by the Board is consistent with the Code of Practice C008 or the Professional Boundaries document. It is not in our view a breach of the Charter. It simply reflects the reasonable limit demonstrably justified by the need for the Board to carry out its statutory role of protection of the public.

The argument is in any event premature, as there have been no restrictions placed on the Respondent during counselling which need to be analysed in accordance with the provisions of the Charter.

Once again, I’m unimpressed.

The Charter vs landlords

The always excellent bulletin of the Human Rights Law Resources Centre is now out, in its June edition. The Bulletin has many Charter-related pieces, including:

• an analysis of the Statement of Compatibility of the Public Health and Wellbeing Bill 2008, with a particular focus on the compelled examination and control of people who may have infectious diseases. (I blogged about SARC’s call for submissions in relation to that bill here; unfortunately, the newsletter didn’t mention that…)
• casenotes on Victoria’s Unberbelly case (blogged about too many times here) and comparative notes on decisions concerning remandees, non-oral hearings, the House of Lords case on inquiries into the Iraq war (blogged about here), evictions, the right to privacy of JK Rowling’s toddler (cool!) and the second ACTHRA case of the year (on adoption.)

But, most interestingly, there was a lengthy discussion of an otherwise unpublicised use of the Charter in a Victorian eviction case. It concerned the following provision:

263(1) A landlord may give a tenant a notice to vacate rented premises without specifying a reason for the giving of the notice.

Acting for a tenant – a pregnant single mother to two young children – who received such a grim notice from a community housing landlord, PILCH made two arguments to the effect that evictions into homelessness are now forbidden in Victoria:

• applying Charter s32(1) – and, I think, Charter s. 13(a)‘s right not to have your ‘home’ arbitrarily interfered with – they argued that the entire clause should have the following words added: ‘if reasonable to do so in the circumstances and if to do so is compatible with the Charter.’
• applying Charter s38(1), the argument is that the landlord – a registered rental housing agency under the Housing Act 1983 – is a ‘functional’ public authority (presumably under Charter s4(1)(c)) and, therefore must consider the rights of the tenant and her kids (presumably under Charter ss. 13(a) and 17(2).)

Neither of these arguments is particularly appealing.

Legal dreamland

The HCA transcript in the successful special leave application in the sleeping judge case is now online, giving us a taste of the arguments to come in this landmark case on the fundamental requirements of justice. It’s not looking terrific.

To start with, the judges mainly wanted to know about the significance of the note one of the defendants wrote to his sentencing judge – the same judge who, of course, snoozed during portions of his cross-examination – which Justice Grove thought ‘plainly acknowledges guilt’. Defence counsel Brett Walker conceded that that reading is open and the judges mused about the possibility that the note could be entered into evidence at any re-trial. Walker thought it could, unless it was excluded based on discretionary considerations. But he argued that the note made this case a great ‘vehicle’ to test the unresolved question of whether and when appeal courts will ever allow a new trial even though the defendant is obviously guilty.

Are these folks all totally nuts? Here’s the note in question:

I would like to take this opportunity to thank you for what was a very fair trial, one wherein I accept the decision made by my peers and I am today at your mercy, asking for some leniency in my sentencing.

I have spent the last 19 months in custody, this has totally changed my perspective on life in many ways. Up until about a year prior to my incarceration I had a problem with drugs. Only now that I am clean can I acknowledge the severe impact it was having not only on myself but my family and those around me. It obviously clouded my judgment. In custody I have been given the opportunity to work with alcohol and other drug counsellors and have had regular, clean urine tests whilst in custody.

My time in custody has also given me the chance to re assess my environment and my role in society. I feel I have a great deal to contribute to society and those around me and much to look forward to in the future.

Above all your Honour this experience has taught me the most important lesson in my life, that which is accepting God as our creator and Jesus Christ as our saviour. The 8th of March 2004 marks the day I was born again and it has changed every aspect of my life. Words cannot describe my feelings and how thankful I am to the Lord for blessing me as one of his children. I have undertaken studies in pastoral theology with the Christian Training Program and it has become my destiny to follow the path of a good Christian.

I sincerely hope you have taken into account the above when deciding my sentence. I once again thank you and the institution you represent for allowing me very (sic) opportunity to defend myself in a fair and just trial. In no way do I hold a grudge against any of the authorities involved, since they have given me the chance to become a new man.

I apologise to the Court, Police and the Community for having to expend their resources on me when I never should have allowed that to happen. I thank you for your consideration.

What sort of crazy system do we have where anybody – let alone senior judges and barristers who are supposedly experienced and case-hardened – takes this sort of thing with anything other than a grain of salt? What convicted defendant awaiting sentence – or planning ahead for the parole hearings – doesn’t turn into a born-again Christian? And become a ‘new man’?

I’m not saying that I think the defendant is innocent. Or guilty. What I am saying is that this note could not possibly cast a light on that either way, because it’s exactly what you’d expect a person awaiting drug offence sentencing to write, guilty or innocent. The twenty-five year maximum penalty really invites this sort of thing. Indeed, the defendant claimed at his appeal that the note was written on legal advice. Oops. The rationale for admitting evidence of admissions is that there’s no reason why someone would falsely confess to a crime. The hell there isn’t. Not when someone faces a significantly longer sentence if they don’t. Note that the defendant didn’t actually confess, but simply admitted to drug use – not exactly the same as importing parcels of E – and wasting everyone’s time. A curious omission, hey? It’s what someone would write when they want to extract the maximum sentence benefit for contrition while not quite confessing.  Alas, he became a new man a third time when the sleepy judge argument became available.

Wendy Abraham again proved a model litigant by claiming that the letter not only acknowledged the defendant’s guilt but also that the trial was fair. Gleeson quickly stamped that out as ridiculous, which of course it is. And he was quick to shoot down Abraham’s suggestion that the ‘confession’ could be used against both defendants in a future trial. She then argued that the defendants made a tactical decision not to complain about the snoring because Dodd was otherwise a good judge. Christ. I’m surprised she didn’t blame the defendant for deliberately boring the judge to sleep with his interminable bugged telephone banter and his endless cross-examination.

But then she really travelled to la-la land, with the High Court as willing fellow travellers.

The Charter and bus fraud

Bus fraud? Swain v Department of Infrastructure (General) [2008] VCAT 848 is another recent VCAT decision where the Charter was raised, again vaguely. Swain is – or at least was – a reformed criminal who, after some unspecified ‘very serious’ offences, spent twenty-five happy years straight and, indeed, married and a licensed security company employee. Alas, things went downhill when his firm started going broke and he tried to scam an insurance money out of some cash. Now he just wants to drive a bus.

Alas, standing in the way of thatmodest goal is the Transport Act 1983:

169(3) The Director must not issue or renew a driver accreditation if the Director is aware that the applicant has been found guilty of a category 2 offence unless the Director is satisfied that the applicant has demonstrated that the issue or renewal of accreditation is appropriate having regard to the public care objective.

Attempted fraud is a cateogry 2 offence. And what are these public care objectives?:

164(1) The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services-

(a) be provided- (i) with safety; and (ii) with comfort, amenity and convenience- to persons using the services and to other persons, particularly children and other vulnerable persons; and

(b) be carried out in a manner that is not fraudulent or dishonest.

Note Other vulnerable persons include elderly and disabled persons.

As the Minister explained in 2006 when these changes were introduced, the purpose was to keep bus passengers – who may be just a handful shivering in the back of a rogue driver’s bus – safe. The Minister wrote to Swain that: “………I am not satisfied that the issue of the accreditation is appropriate having regard to the public care objective, particularly of providing the service in a manner that is not fraudulent of dishonest.” Maybe Swain will try to defraud his insurers again while his passengers sit there terrified!

Anyway, Swain tried to rely on the Charter:

Refusal of driver accreditation should not be motivated by disapproval of Mr Swain’s past misconduct or a desire to punish him again for offences for which he has already been punished. The need to avoid any double punishment is emphasised by section 26 of the Charter of Human Rights and Responsibilities Act 2006, [the Charter Act] which is of relevance to the decision-making by the Tribunal by reason of section 32 (interpretation of legislation) and sections 38 and 4 (decision making by public authorities and tribunals acting in an administrative capacity) of the Charter.

Not exactly precise. What does Charter s. 26 emphasise? What word needs to be re-interpreted?

VCAT Senior Member Noreen Magay stated: “I consider that counsel might have misconstrued the effect in this case of sections 38 and 4 having regard to the definitions set out in section 4 of the Charter Act…” Well maybe counsel has, but I’m not convinced Magay has construed those sections properly either. Why isn’t the Director of Public Transport a public authority under Charter s. 4(1)(a) or (b)? And there’s an argument (in Pound & Evans) that VCAT, when it’s doing merits review of the Director’s decision, picks up not only the Director’s powers, but also the Director’s duties, under s. 51 of the VCAT Act. You’d think that this point would need to be worked out quick smart. The better argument might have been that, because the Director’s decision was made (late) last year, Charter s. 49(3) precluded the application of the conduct mandate to it and therefore its review.

Anyway, the rest of Magay’s judgment was fine:

The Charter and mental health

MH6 v Mental Health Review Board (General) [2008] VCAT 846 is a sad case about a man who was thrown off his horse back in 1982 and suffered a brain injury. Detioration and imprisonment for indecent assault ensued and he ended up committed to Mary Guthrie House. Despite the warm and fuzzy name, this is a high secure detention facility for adults with brain disorders. While the average stay is 6-12 months, MH6 has been there since 2002. He now wants out.

Standing in his way is the Mental Health Act 1986, which provides for continued involuntary treatment:

36 (1) This section applies on an appeal or review for a patient who is detained in an approved mental health service under an involuntary treatment order.

(2) If the Board considers that the criteria in section 8(1) do not apply to the patient, the Board must order that the patient be discharged from the involuntary treatment order.

(3) If the Board is satisfied that the criteria in section 8(1) apply to the patient, the Board must confirm the involuntary treatment order.

MH6 disputed the application of one of the s8(1) criteria:

(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.

His counsel tried to rely on the Charter:

Mr Hancock in his written submission contended that in making any determination under s 8(1)(e), I must consider this provision of the Mental Health Act in light of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (The Charter). Without drawing to my attention in what way, and where relevant, which particular parts of the protected rights claimed were engaged, Counsel simply submitted that the following sections of the Charter were relevant :

10 Protection from torture and cruel, inhuman or degrading treatment

12 Freedom of movement

21 Right to liberty and security of person

22 Humane treatment when deprived of liberty.

His submissions in support of his contentions as to the application of those sections of the Charter were one and the same as those set out at the commencement of my consideration of the application of s 8(1)(e). Mr Hancock did not elaborate further on how the sections of the Charter applied.

Those do seem to be the relevant rights, especially given that Charter s. 10(c) contains a right against non-consensual medical treatment.

Tainted property, tainted statute

Another non-use of the Charter today! Here’s the thrilling paragraph from DPP v Ali & Anor [2008] VSC 167:

Initially the respondent called in aid s.26 of the Charter of Human Rights Act 2007. After notice was served under s.35 of that Act upon the Attorney-General and the Equal Opportunities Commission, the Attorney-General intervened and filed submissions. After discussions between the parties’ representatives, the Court was advised on the return hearing date on 17 March 2008 that the respondents no longer sought to rely upon arguments based upon the Charter.

So, once again, the Charter’s requirement that the Attorney-General be notified about any questions of law arising under the Charter has had the result that the defendant withdrew the argument. Alas, we aren’t told why. It might be because the respondent’s arguments were daft and the Attorney-General’s submissions made that obvious. In that case, I guess justice has been served. Or it might be because the Attorney-General threw around a bunch of big, scary, expensive and dubious arguments about the Constitution, thus scaring the defendant away. If that’s the case, then this is a very bad thing, as this case could have been assisted by a bit of Charter-style lovin’. The frustrating thing is that the reasons don’t tell us what happened. The Charter is being settled away out of the public eye. That can’t be a good thing.

It’s a real pity that the Charter wasn’t ultimately involved in this case, because the case involved what I regard as the Charter’s raison d’etre: harsh legislation that’s hilariously badly drafted.

The right to pretend child porn

The US Supreme Court today rejected the latest challenge to that country’s latest child porn law, 7-2. 7-2?!! What on earth are the human rights arguments in favour of child porn? The answer, of course, is the right to freedom of expression:

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kind…

Actually, there are few arguments – in the States at least – against obscene pornography, child or otherwise.  Such ‘speech’ is considered presumptively valueless and is only protected in narrow circumstances: high literary merit, war documentaries and the like. But not all porn is obscene. It all depends on where the camera is pointing. Nevertheless, even in the non-obscene category of pornography, everyone agrees that pictures or film of actual children in actual sexual situations is (or can be made) verbotten, on the rationale that such children have, by definition, been dealt with sexually – a hideous wrong and major criminal offence – and knowingly possessing such images (outside narrow special circumstances, like law enforcement or making a documentary) is a form of participation in that abuse.

But there’s a further more difficult category, which happens to be included in Victoria’s definition of child porn. Here’s what it’s illegal to produce, procure or possess in Victoria:

child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context

The problem category for free speech is a photo or film or computer image that isn’t obscene and doesn’t show actual children, but looks like it shows actual children in sexual situations. (A  ‘child’ for this purpose is a minor, i.e. up to 18 years old. There are some defences for young people who take pictures of themselves or let other young people take pictures of them.)

You may well say: yeeeech. But lots of TV shows and movies depict under 18 year-olds in sexual situations. They do so using adult actors who look young. Or trick camera work. Some computer games do the same virtually. But, unfortunately, those not-so-fine folks who trade in child porn also sometimes use pretend child porn, either because they are trying to evade anti-porn laws, or because they are trying to defraud others, or because they find it stimulating. Once again, yeeeeech. As well, law enforcement people use pretend child porn to try to entrap people who are after real child porn.

Even though no children are actually harmed – or even involved – there are certainly some arguments against pretend child porn.  It may cause people to target actual kids. It may traumatise people who see it. As well, people caught with real child porn may find it easy to raise a reasonable doubt about whether or not it is actual child porn. Maybe the ‘kids’ were actually adults? Or maybe it was all clever photo-stopping? Such arguments are presumably behind Victoria’s ban. But the top courts of the US and Canada have both held that such laws infringe freedom of speech. Not, mind you, because they are great fans of the genre. But rather because they are worried that the boundaries of non-obscene pretend child porn cross into lots of less reprehensible works, like ‘artistic’ pictures of naked kids or every fifth episode of Home and Away or every freaking episode of Law and Order: SUV.

Now, Victoria’s child porn possession offence has three defences that are intended to cover these sorts of things:

70(2) It is a defence to a prosecution for an offence against subsection (1) to prove-

(a) in the case of- (i) a film; or (ii) a photograph contained in a publication; or (iii) a computer game- that at the time of the alleged offence the film, publication or computer game was classified other than RC or X or X 18+ or would, if classified, be classified other than RC or X or X 18+; or

(b) that the film, photograph, publication or computer game possesses artistic merit or is for a genuine medical, legal, scientific or educational purpose;

(c) that the defendant believed on reasonable grounds that the minor was aged 18 years or older…

But these sorts of defences aren’t enough for North American free speech ideals. The first one is limited to formal publications, while the North American courts think amateurs – or, in Canada, just private doodlers – should be equally protected. Also, it depends on decisions by a politcally appointed body. And, it’s not exactly easy to work out in advance how those decisions will go. It’s a bit tough making a major crime’s definition depend on something like that. The second defence lacks the formal classification scheme but still is lmiited to the respectable side of the publications world and the foibles of distinguishing merit from lack of merit. Home and Away? The deficiencies in the first two defences are the reason why the third defence isn’t good enough in North America either.

So, it’s clear that Victoria’s law on possessing pretend child porn would be unconstitutional in North America. But here? There’s no question of the law’s validity, but could it be the subject of re-interpretation or a declaration of inconsistent interpretation?