A not so fine line

Sigh. Now, here’s a bold call:

New sex offender laws run counter to rights charter

Melissa Fyfe June 1, 2008

PARLIAMENT has passed a law dealing with sex offenders that is likely to be inconsistent with the Charter of Human Rights and Responsibilities, according to a legal expert.

Wow. Who would make such a courageous claim?:

Melbourne Law School Associate Professor Jeremy Gans, who advises a parliamentary committee on the new human rights charter, told The Sunday Age that a judge was likely to find the law, passed last week, inconsistent with the charter. It would be the first such law to fall outside the new charter.

Did I say that? Alas, no. The article quotes me accurately further down:

Mr Gans said offenders were likely to challenge such an order under the charter and a judge was likely to agree that it posed a problem. The key concern was the issue of double punishment and that the law is retrospective. Victorians, under the charter, have a right not to be punished twice. The State Government took the view that extra monitoring was not punishment, but a court in New Zealand, where a human rights charter also exists, held that monitoring regimes were indeed punishment, Mr Gans said.

That’s a big difference. Like the difference between saying someone is likely to be charged with a crime and saying they are likely to be convicted.

For the record, I think a challenge is likely because the Charter argument is open to be made (what with the New Zealand decision) and, unlike many laws, this one isn’t just going to sit on the books unused. It’s going to be applied to some people who will have every interest in attacking it every way they can.

But will the challenge succeed? That’s impossible to know, because it depends on one very technical question (is monitoring a punishment?) and one very difficult judgment call (is any such punishment a reasonable limit on the Charter rights against double jeopardy and retrospectively?)

The article, to its credit, makes it clear that, either way, the law still stands:

Under the charter, a judge can make a “declaration of inconsistent interpretation”. Attorney-General Rob Hulls would then have to respond within six months. He does not have to change the law. However, parliaments often respond by changing the law, Mr Gans said. Mr Hulls said: “The charter promotes dialogue between Parliament and the courts. It is a collaborative model. No right in the charter is absolute. And even if a challenge to any right was successful, ultimate power under the charter remains with the Parliament.”

That’s not a dialogue I want to join. No declarations of inconsistent interpretation from me!

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