The quiet Charter

Today marks thirty days since the last reported Charter case (Zierk, on 30th May.) I’m basing this on Austlii reporting, which covers the VSC, VCA and VCAT, but not the Magistrates’ or County Courts. That’s the whole month of June, the sixth month of the Charter’s full operation, without this major statute being so much as mentioned by the state’s top court and administrative law workhorse.

What does this mean? Here’s some possibilities:

First, it could just be a statistical blip (something that’s almost inevitable given the tiny sample size.) Last month, May, there were six cases that got a Charter mention, compared to one in April, so this month might have some evening up. On the other hand, I can’t see next month being big, with the winter recess and all. And surely everyone was expecting the numbers to grow as the year progressed?

Second, it could be a welcome development: a decline in pointless passing mentions of the Charter that do little more than pay symbolic lip service to a statute that has a number of non-symbolic and highly complex provisions.

Third, it could be a worrying development, pointing to a gap in confidence or access to the Charter amongst litigants. There are a number of potential culprits: (a) the stupid transitional provision, Charter s. 49(2) (though its effect should be declining as time passes.) (b) the notice provision, Charter s. 35 (which Bongiorno J reckons imposes a mandatory delay as a penalty for raising the Charter, but which I don’t think requires that at all) (c) s78B of the Judiciary Act 1903 (Cth), which – in combination with some dubious constitutional arguments being put by the Attorney-General and some dubious refusals by the courts to apply its expedition provisions – will impose mandatory delays and costs as a penalty for raising the Charter; (d) the Charter’s numerous drafting problems, which might have scared off litigants who don’t want to hire a QC to nut out all the weirdness; (e) the Charter’s many gaps and loopholes, which might have narrowed its potential operation to too few cases.

Despite mulling this over, I really have no idea what is going on. For all I know, there have been heaps of Charter cases but in the lower courts or settled before any judgment is reached. And there may be a stack in the pipeline.

But, from my Austlii-based perspective, there did seem to me to me a fair number of openings for Charter arguments in the last month. Here are some from just the past week from the Supreme Court: Continue reading

The Charter vs Jack Bauer

The TV series 24 – whose shtick is its real time format, where every second on your TV equates to a second of plot development – was originally pitched with a plot about a couple on their wedding day. But it was quickly switched to a terrorism drama, which it has maintained for six seasons now. Terrorism is a natural for the real time format, because of the recurrence of ticking bombs, inevitably with red LED countdowns, or their equivalents: ticking viruses, ticking nerve gas, ticking nukes, ticking deaths of all varieties.

And all that ticking has given the show its signature moral dilemma: what do you do when the one person who knows where the bomb (or equivalent) is won’t tell you? For Jack Bauer, the series protagonist, there’s no dilemma at all. He just tortures them with whatever’s handy: drugs, an electric cord, even a towel. The series writers know where they stand, because Bauer’s approach usually (though not always) saves more lives than its costs.

But, in real life, there’s a legal issue. In 1999, the Supreme Court of Israel was asked to rule on the legality of torture in a hypothetical ticking bomb situation, in a case on whether the state security service could apply low level torture methods (akin to those approved by Bush) on suspected terrorists:

In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information?

The Supreme Court ruled that the criminal law defence of necessity could not provide any advance authority for torture, because the nature of the defence was an improvised response to an emergency. However, the Court did not resolve two further questions:

We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect.

In the last couple of years, Germany’s courts have had to deal with both of these questions in an extraordinary non-terrorism case. And, this Monday, the European Court of Human Rights will have to resolve the second one.

In 2002, 11-year-old Jakob von Metzler disappeared shortly after getting off his school bus. An hour later, a ransom letter was sent to the boy’s family – his father was a senior bank executive – demanding 1 million Euro. The money was dropped off at a tram station and the police observed a law student, Magnus Gäfgen, the brother of a friend of Jakob’s, picking it up. Gäfgen, who later said that he wanted to impress his wealthy girlfriend and lead a life of luxury that matched his planned status as a lawyer, banked part of the money. He was arrested at Frankfurt airport trying to leave the country. At his interrogation in Frankfurt’s central police station, the law student accused others of perpetrating the kidnapping and claimed that the boy was alive, citing several hiding places none of which yielded Jakob. Cue the ticking clock.

Concerned that the boy was starving or exposed to the elements somewhere, the Vice President of the Frankfurt police, Wolfgang Daschner, signed an official note ordering a subordinate to inflict pain on Gäfgen (without causing ‘injuries’) under medical supervision. Within ten minutes of being confronted with this threat (which Gäfgen claimed included the prospect of being raped by fellow detainees) and without any inflicting of actual pain, Gäfgen confessed that he had killed Jakob and directed the police to the lake where the body had been dumped and other evidence tied Gäfgen to the kidnapping. Gäfgen later confessed to the murder and kidnapping to the police and  before a court. These events created an extreme dilemma for the German courts. What were they to do now with Gäfgen and Daschner? Continue reading

The Charter vs professional discipline

My thanks again to Gabrielle McKinnon at ACTHRA for keeping tabs on tabloids and spotting yet another front page Charter article by the Herald Sun. (It’s interesting – not to mention inconvenient – to me that the Age doesn’t have the same level of interest in the Charter’s use in legal proceedings.) Here’s the news:

A SUBURBAN GP charged with raping a female patient claims authorities who tried to stop him from practising as a doctor breached his human rights. Dr Ahmed Mohamed Sabet has taken Supreme Court action using Victoria’s new Human Rights Charter to fight the Medical Practitioners Board’s interim decision to stop him treating patients. Barrister Jeremy Ruskin, QC, told the court yesterday that Dr Sabet was innocent until proven guilty of the rape charges, but the board had ignored this by suspending his registration in April. “The (board) is bound to uphold the presumption of innocence every time it deals with a criminal charge,” Mr Ruskin said.

The court has heard Dr Sabet’s legal challenge is a test case of the charter that will determine the power of several medical, sporting and professional tribunals to discipline a person charged with a crime. Dr Sabet, who works at Duff St Medical Clinic in Cranbourne West and at a laser hair removal clinic in Princes St, Kew, is allowed to continue practising while his case is before the court. He is not allowed to see female patients. Mr Ruskin told Justice Elizabeth Hollingworth that his client faced three charges of rape and five of indecent assault arising from a consultation with a woman known only as YZ in October 2007. Another woman, known as AB, had made a complaint of sexual assault by Dr Sabet arising out of a consultation in July 2006. That case was already under investigation by the board.

Mr Ruskin took the court on a Cook’s tour of human rights charters around the world and said in most jurisdictions the presumption of innocence was binding on tribunals. He said that in its decision to suspend Dr Sabet’s registration, the board found the circumstances of the examinations of of AB and YZ were disturbingly similar. “They have assumed guilt and that is our complaint,” he said. Tim Ginnane, SC, for the board, told the judge that protection of the public was a very important part of its functions. “The board’s function is protective rather than punitive,” Mr Ginnane said.

AS the Hun righty points out, this case appears to raise a very big question about the role of disciplinary tribunals under the Charter, where those tribunals are concerned with conduct that could be the subject of criminal charges. More broadly, it raises the vexed question of parallel criminal and non-criminal proceedings.

The key provisions at issue are these:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

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.

Some threshold issues. First, it seems clear enough that the Medical Practitioners Board is a public authority for the purposes of the Charter, as it is established by a statute (s. 65 of the now-repealed Medical Practice Act 1994, continued by s. 117 of the Health Professions Regulation Act 2005) and I don’t think it’s much of a stretch to regard its various functions, notably its function of investigating and sanctioning misconduct by doctors, as public functions according to the test in Charter s. 4(2). So, the Board is obliged to act compatibly with all rights, including Charter s. 25(1), unless it has a defence.

Second, there is an issue about the scope of Charter s. 25(1). The heading of s. 25 is ‘rights in criminal proceedings’ and a Medical Practitioners Board hearing isn’t a criminal proceeding. This issue (in a different context) was the subject of correspondence between the Attorney-General and the Scrutiny of Acts and Regulations Committee (whom I advise), after SARC raised the question of whether a new power to stop people working with children (WWC) on the basis of (dropped) criminal charges in ‘exceptional circumstances’ was contrary to Charter s. 25(1):

The Committee reported that the Statement of Compatibility did not address the compatibility of the new ‘exceptional circumstances’ discretion in light of Charter s25(1), which gives “a person charged with a criminal offence.. . the right to be presumed innocent until proved guilty according to law.” The Committee noted that “the European Court of Human Rights has held that an equivalent provision under the European Convention on Human Rights and Fundamental Freedoms ‘may be infringed not only by a judge or court but also by other public authorities’ …”

Response: I note that the right to be presumed innocent is a right in criminal proceedings, and accordingly, protects a person in the context of a trial. It has also been held to be relevant to pre-trial matters such as bail, and post-trial matters such as sentencing. These are all, however, stages of the criminal process. The cases cited by the Committee involve statements made in the context of, or in close connection with, criminal proceedings. As noted above, the presumption of innocence does not apply outside of this context. Taking into account proceedings for certain crimes in assessing an application for a WWC does not engage the right, as it is a process which occurs outside of the criminal process.

Suffice it to say that I’m dubious about using the title of a section to read it down (especially when the section gives a fundamental right.) Rather, surely the ECtHR was right when it said:

[T]he Court reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory. That also applies to the right enshrined in Article 6 para. 2 (art. 6-2). 36. The Court considers that the presumption of innocence may be infringed not only by a judge or court but also by other public authorities.

The case involved a press conference held by a government minister stating matter-of-factly that a businessman had been involved in the murder of a French MP. The businessman had just been arrested but charges of murder were later dropped. The Court held that it was sufficient that the press conference referred to the pending charges to engage the right to be presumed innocent. In short, there can be no technical knock-out for a claim of a breach of Charter s. 25(1) just because a particular proceeding is or isn’t criminal. Rather, the issue is the substance of the right.

So, third, there’s the subtance of Charter s. 25(1). Continue reading

Uniform Tasman evidence law

The Evidence Bill 2008 was introduced into Parliament yesterday. This initiative was first announced in the 2004 Justice Statement, the same document where the Charter consultation was announced. A press release from Hulls yesterday trumpeted the savings for business in the modernisation of Victoria’s largely common-law based law of evidence, as well as some particular amendments to the rules of hearsay and witnesses. This focus on some very narrow features of the bill reflects the lack of any significant support from any significant of the Victorian community for its raison d’etre, which is the replacement of the common law of evidence with more accessible statutory rules. The Victorian Bill, like the Uniform Evidence Legislation movement it follows, is really the brainchild of law reform bodies.

A particular driver in Victoria, as Hulls’s press release notes, is  consistency with other jurisdictions:

Mr Hulls said the new Act would also improve the ability of Victorian courts to conduct cases efficiently and in a way that was consistent with practices in other state courts and the Federal Court. “Uniform national evidence laws are important because they provide consistent rules across all courts,” Mr Hulls said.

In fact, Victoria is presently surrounded by UEL jurisdictions: Tasmania to the south, NSW to the North and the Commonwealth in federal courts (but not federal matters heard in state courts.) On the other hand, South Australia to the west, as well as Queensland, Western Australia and the Northern Territory remain common law jurisdictions. Win some, lose some and, anyway, Victoria jumping ships may prompt the remainder to follow.

But, as I’ve argued elsewhere, Victoria’s evidence law will, in some respects, not be completely uniform with other UEL jurisdictions. Whereas Victoria’s common law is (largely) unaffected by the Charter, all provisions of the new bill will be subject to the 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.

The result is that some provisions of the new bill may have a different meaning here than in NSW, even where the NSW meaning has long been settled and Victoria’s provision is identical. The actual differences may not emerge for some time, as they will depend on courts’ calls about the rights compatibility of the accepted meanings and, where a right is limited, whether or not a compatible meaning is available given a provision’s wording and purpose. There’s even the prospect that a Victorian UEL provision will be the subject of a declaration of inconsistent interpretation, effectively a condemnation of several other jurisdictions’ provisions too. Any resulting dialogue will need to be mediated by SCAG.

The other human rights statute jurisdiction – the ACT – is a UEL jurisdiction too, but it doesn’t have this problem because its UEL legislation is actually contained in a Commonwealth statute (though there’s some talk of the statute being ‘repatriated’ to the ACT.) Rather, the jurisdiction Victorians may need to look to to understand the effect of the Charter on their UEL is outside of Australia. Continue reading

The right to release

The more I look into the law on parole and human rights, the clearer it becomes to me (until more than the current sentence from Hulls on this topic goes on the public record) that the concern of the parole boards about having the Charter applied to them is with these bits of Charter s. 21:

21(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

21(7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must- (a) make a decision without delay; and (b) order the release of the person if it finds that the detention is unlawful.

Now, just reading these provisions on their own without reference to ECHR caselaw, these two provisions are about the start and continuation of deprivation of liberty. The requirements aren’t exactly mind-bending: deprivation of liberty must occur through lawful procedures and there must be a (court) procedure to test that the detention continues to be lawful.

These provisions make most sense when you consider the usual criminal process context of arrest: cops need a law to arrest someone and must swiftly bring a person before a court to test to lawfulness of that arrest. However, they can also apply in other contexts. Indeed, the ECHR equivalent to Charter s. 21(3) actually contains an exhaustive list of when someone can be deprived of liberty:

5.1 …No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Now, as Article 5.1.a makes clear, one such situation is after a person has been convicted. Although neither Article 5.1 or Charter s. 21 uses the term, this is the sentence phase, when someone may be given a sentence of imprisonment and will be detained pursuant to that.

I would have thought, then, that the sole effect of Charter s. 21 on people serving a sentence of imprisonment is to require that the original sentence be done ‘in accordance with procedures, established by law’ and that prisoners have a right to ask a court to rule on whether their detention, at any moment, is in accordance with that original sentence. This would be satisfied by Victorian sentencing law and the right to habeas corpus (in Victoria known, less gloriously, as Order 57 of the civil procedure rules) (as well as other Victorian provisions allowing someone to challenge their sentence.)

But that’s where ECHR law on Article 5.4 mixes things up. Continue reading

The price of powerful parole boards

Yesterday’s decision by Justice Harper to grant leave to Robin Fletcher (referred to in the newspapers as the paedophile witch) for an early review of his extended supervision order demonstrates that increasing the power of parole boards is a tricky thing. In Secretary, Department of Justice v Fletcher [2008] VSC 217, the provision that Harper J had to apply was this one from the SSOMA Act:

21(3) The offender, with the leave of the court, may apply to the court at any time for it to undertake a review of an extended supervision order made by it.

The Department argued that the test for whether leave should be granted should be the same one that the Court of Appeal uses to determine whether to grant leave to appeal against a sentence. That’s a surprising analogy for the Department to draw, given that Attorney-General’s view, put to Parliament in the Statement of Compatibility to the recent bill extending the monitoring scheme that ESOs are neither punishment nor penalties. In any event, Harper J rejected it:

It is not an analogy that attracts me. A person who is made subject to an extended supervision order is no longer a prisoner under sentence. A person in Mr Fletcher’s position should in my opinion be given leave to apply for a review of such an order if the court is satisfied that new facts or circumstances, justifying such a review, have arisen since the order was made.

It is a little disappointing that the Charter’s interpretation mandate wasn’t referred to in reaching this conclusion.While I don’t think that parole decisions trigger the Charter s. 21 protections for deprivation of liberty, it’s pretty clear that an ESO does. The English cases on the ECHR equivalent to Charter s. 21(7), described last post, arguably could suggest that defendants should have a ready chance to challenge ESOs in a court to test the continuing need for the order, something that would surely have favoured Harper J’s approach.

Anyway, what is interesting is Harper J’s reasons for granting Flectcher a review. He didn’t seem to be moved by alleged factual changes of circumstance about Fletcher’s condition or the expertise that led to the original ESO. Rather, it was legal changes that interested him, notably the amendment to the SSOMA in 2006 (itself the result of a challenge by Flectcher) to permit the Adult Parole Board to order that Fletcher live within the permiter of his former prison:

I regard the giving to Mr Fletcher of a direction, unlawful when made, that he reside within Ararat Prison, as a new fact and circumstance. Had it been known, when the original hearing before Gillard J took place in May 2006, that this direction was proposed, his Honour’s attitude to the Secretary’s application would have been different. So much can be said with confidence, because his Honour subsequently held that the direction was unlawful. And, for the reasons to which I have already referred, Mr Fletcher’s attitude would also have been different.

I acknowledge that the giving of the direction was a new fact or circumstance partly because it was, when given, beyond power; since then, Parliament has amended the legislation, so that what was once unlawful is now within power. To that extent, the “new” fact or circumstance has been removed.

In my opinion, however, the point – that the direction to reside on land within the perimeter of Ararat Prison was a fact or circumstance which might have affected the outcome of the Secretary’s application before Gillard J – remains good. Any judge, it seems to me, would be bound – when considering whether he or she was satisfied to the “high degree of probability” required by s.11(1) of the Act – by the reasoning of the High Court in Briginshaw v Briginshaw….

Now, there’s two ways this has a wider significance than Fletcher’s case. Continue reading

The Charter vs parole boards

I’m weeks late on a very big Victorian development. (Proves I’m not keeping tabs on the Public Accounts and Estimates Committee, the Herald Sun or ACTHRA!) As I blogged about six months ago, three public authorities who would otherwise be bound by the Charter’s conduct mandate have been exempted from it by regulation, due to expire at the end of this year. The state’s three parole boards, we were told, needed time to ensure that their operations would comply with the conduct mandate, despite it having been enacted almost eighteen months before it commenced. Now it seems that thirty months (and maybe forever) will not be enough.

Here’s what Attorney-General Rob Hulls said in evidence earlier this month before the PAEC:

Mr BARBER — The adult parole board, Youth Residential Board and Youth Parole Board have all be exempted from the human rights charter by regulation and the human rights commission said that they were unaware of the rationale for that and that such provisions were extremely significant. I believe your response was that this was done for a period of one year in order to allow for a review of the impact of the charter on those bodies’ work and also to consider the resources that they would require to comply. Can you let us know what those resources are, the progress of the review and whether it will still be for only one year

Mr HULLS — It is a good question. I actually met with the heads of the Youth Parole Board and adult parole board only last week about this very matter, because they are seeking an extension of the exemption. They have put their case to me in relation to that and I have not made a decision yet about whether to go down that path or not. They have suggested that natural justice is not afforded to people seeking parole and they have to make decisions, often very quickly, in the interests of the broader community. They are aware that no right under the charter is absolute, but they are indeed seeking a further period of exemption.

This is the first time that the parole boards’ concerns (and the government’s response) have appeared on the record. Unfortunately, these are slim pickings and they leave me worried about the quality of legal analysis that’s occurring behind the scenes.

Section 69(2) of the Corrections Act 1986 says that the Adult Parole Board ‘is not bound by the rules of natural justice’ and the parole boards appear to be worried that Charter s. 38(1) will nevertheless impose just such a requirement. They are presumably also worried that Charter s. 38(2) won’t let them off a hook, as the Corrections Act doesn’t tell the Board not to follow the rules of natural justice and instead just leaves procedure up to them. Hulls’s reference to how ‘no right under the charter is absolute’ is a reference to Charter s. 7(2), I guess, but my (admittedly controversial) view is that Charter s. 7(2) doesn’t restrict the requirements of the conduct mandate (though it may prevent a declaration of inconsistent interpretation about s. 69(2)).

So, I’m with the argument so far. But what Charter rights are the parole boards concerned about? Continue reading