SARC on two rights quandaries

Apart from its comments on the new Evidence Bill 2008, SARC’s latest report highlights two difficult rights questions posed by bills presently before the Victorian Parliament:

First, given the right to equal protection without discrimination (including on the ground of religious belief and practice), how can Victoria have public holidays over Easter and Christmas, which make it much easier for (Western) Christians to balance work/school and religious observance than other religions?

Second, how, compatibly with human rights, can Victoria solve the problem of litigants accused of violence against someone inflicting further trauma on that person (or intimidating them into dropping their story) by personally cross-examining them? Victoria, like other jurisdictions, has passed laws stopping rape defendants from personally cross-examining rape defendants, but, unlike other jurisdictions that instead provide for the judge or a court-appointed intermediary to do the questioning on behalf of an unrepresented accused, Victoria – on the advice of its law reform commission – instead requires defendants to get a lawyer or requires Legal Aid to provide one. The new Family Violence Protection Bill extends this scheme to respondents to applications for family violence intervention orders in relation to questioning of kids, relatives, alleged victims of violence, people with mental disabilities and anyone else who may be harmed. But there are two crucial details:

  • first, presumably because there are a lot of family violence intervention applications and many unrepresented respondents, the bill permits Legal Aid to charge for the lawyer they provide, payable whenever the respondent has means (and enforceable via a charge on their property)
  • second, in common with the scheme for rape defendants, the bill provides for defendants to be told that if they don’t get a lawyer (including, if necessary, agreeing to charges from Legal Aid), then, not only can’t they cross-examine, but they also can’t give evidence contradicting the witness! This seems to be a very strict version of the rule in Browne v Dunn (an evidence law rule aimed at ensuring that parties don’t spring factual arguments on eachother.)

The combined result: respondents to many family violence intervention orders will need to pay for the right to defend themselves! Yikes. There’s no doubting the importance of the goal of stopping respondents from harassing their accusers, but this is a classic Charter s. 7(2) issue: is the remedy proportional to this goal and are there any less extreme ways of achieving it?

Harmonisation vs the Charter

Last week’s SCAG meeting focused, as it nearly always does, on harmonisation of Australia’s (and NZ’s) legal systems. Let me sound some notes of disharmony. The harmonisation movement was previously a movement to ensure more uniformity in Australian law. Anyone who’s been an academic in an Australian university will have read the standard form undergraduate paper that describes umpteen different legal rules on a particular topic across Australia’s states and territories and then declares that this disunity is a bad thing and laws should be made uniform (sometimes with a brief pause to note that uniformity is a hard thing to achieve.) I’ve always felt that the goal of uniformity needed more cogent support than a sense of aesthetics or a law student’s frustration at having to do so much research. In my research on DNA profiling, I argued that the goal of uniform Australian laws on every aspect of DNA – motivated, it seems, by the dog-wagging tail of the folks in charge of doing the software for the national DNA database – was directly responsible for the adoption of incredibly substandard laws in most Australian states, laws that notably failed to adequately deal with some fundamental questions of how cross-border investigations should operate. The switch to harmonisation at least recognises that it’s intelligible and sensible interactions among jurisdictions, rather than cookie-cutter statutes in each of them, that is the goal.

Nevertheless, uniformity remains the easiest path to harmonisation. As I’ve detailed previously in this blog, the goal of uniformity can cut across the goals of the Charter. One technical problem is that a common scheme for achieving uniformity – the passage of head legislation in one jurisdiction, and ‘adopting’ legislation in others – can take the head legislation (assuming it isn’t Victorian) outside the scope of the Charter’s interpretation mandate. Or maybe not. In its rely to SARC’s query about whether or not South Australia’s natural gas laws, regs, rules and instruments – each given force of law in Victoria by Victoria’s National Gas (Victoria) Act 2008 – is covered by Charter s. 32, the Minister has simply replied:

As the National Gas (Victoria) Law, the National Gas (Victoria) Regulations, and the National Gas Rules are Victorian law, Charter 32 of the Victorian Charter of Human Rights and Responsibilities Act 2006 does apply.

Well, there’s no doubt that they are Victorian law, but I still think there’s a lot of doubt about whether or not they are ‘statutory provisions’, which is what Charter s. 32 applies to.

But the Evidence Bill 2008, currently before the Victorian Parliament, really highlights the problems that the goal of uniformity poses for the Charter’s operative provisions. The first clause of the new bill reads:

1 The purpose of this Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law.

The Commonwealth and NSW laws that the bill seeks to be uniform with were not only developed outside of Victoria, but long before the Charter was ever enacted. Indeed, even the more recent law reform inquiries that produced refinements of the UEL pre-dated the Charter. So, you really have to wonder whether the anticipated process of careful assessment of a proposed bill for compatibility with human rights did – or indeed could have – occurred.

Two examples of this problem are highlighted in SARC’s new report on the Bill. Continue reading

The French Court

It was worth electing Rudd after all! I’m smiling today about the appointment of Robert French as the next Chief Justice of Australia. Unless he leaves early, we’ll have nine years of the French Court, which will hopefully be enough to get us over ten years of the Gleeson Court. It’ll be the French Court who will decide some key lingering questions about the Charter, not to mention potentially hear some regular appeals from the Victorian Court of Appeal about its operation.

So, why am I pleased? Mainly, because of my lack of enthusiasm for two of the other judges who’ve been mooted for the job: the CJs of NSW and Victoria. For starters, I’d like some geographic diversity. After all,  would someone like Dyson Heydon have ever been appointed if it wasn’t for Howard’s Sydneyphilia? But it’s also about the incumbents themselves. I’ve never been all that impressed by Jim Spigelman, perhaps because I don’t much like his judgment writing style; I’m thinking two hundred paragraphs of quotes from very precedents, followed by: “For the above reasons, I allow/dismiss the appeal.” But it’s especially because of my shock at an incident back in 2001 when Bob Carr, incensed at the sentences being handed out in rape cases, demanded that Spigs come to talk to him about it… and Spigs went!

As for Marilyn Warren, she’s put her name to two lousy Charter judgments so far this year, both involving giving short shrift to freedom of expression (see here and here), and one involving some very dubious process too (see here.) While I hold onto the hope that these were abberations (or just specific to that particular right), for now, I’m quite relieved that Gillard’s rumoured push for her to be chief has not occurred. That being said, I’m a little torn on gender diversity grounds and certainly hope a woman will replace Kirby (albeit also alarmed at the prospect of three Susans on the court.) So, French is basically the devil I don’t know, as is his court (given its lack of criminal law jurisdiction.) But the Gleeson court (full of state judges and commercial federal judges) leaves me enthusiastic for someone from  a different background, given his association with native title law. 

But, more importantly from a Charter perspective, his published speeches have promising indications on his willingness to engage with Victoria’s new statute in a positive way: he’s clearly been following the new human rights statutes and the debate about them closely, especially in his native WA. While he meets James Allan’s test of not coming out in support of such statutes, I don’t think Professor Allan will be very pleased with his approach, for example relying on George Williams’s analysis of the pros and cons. More importantly, his speeches have touched on two of the big political and constitutional issues about Victoria’s Charter: Continue reading

That’s [potentially] incredible!

On a day when the Rudd government is due to announce a winding down of the Keating-Howard mandatory detention regime for asylum speakers, this curious section of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (UK) has just been read down:

8(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.

(2) This section applies to any behaviour by the claimant that the deciding authority thinks – (a) is designed or likely to conceal information, (b) is designed or likely to mislead, or (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.

The section goes on to require courts to require a variety of acts as fitting the requirements of sub-s(2), including failures to produce a passport, producing a valid passport, destroying a passport, destroying a ticket or not answering a question (all without reasonable excuse) or failing to make a claim for asylum at first reasonable opportunity. The Court observed that the section was brought in after the then Home Secretary, David Blunkett, stated his concern that potential asylum seekers were destroying their documents to prevent assessment of their real country of origin and to confound being deported.

The Court of Appeal in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 angsted about this section, which seemed to be telling courts how to find-facts, which they observed would be contrary to the ‘principle of legality’. I think that, assuming asylum claims are civil proceedings, a similar section in Victoria would be contrary to Charter s. 24(1):

24(1) A… party to a civil proceeding has the right to have the… proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The difficulty for the Court was how far it could go in re-interpreting the section under the interpretation mandate. The Court duly cited the current House of Lords precedent on interpretation, Ghaidan v Godin-Mendozza, which ruled that re-interpretation must not contradict a statute’s ‘fundamental features.’

Lord Justice Pill duly rejected an argument that ‘shall’ should be interpreted to mean ‘may’, but accepted alternative arguments that ‘damaging’ should be read as having the word ‘potentially’ in front of it or that the entire phrase should be re-read as ‘when assessing any damage to the complainant’s credibility’. Pill’s fellow lords went with the first option. I’m a bit baffled as to why the latter two readings are more acceptable than the first one and, indeed, what ‘fundamental features’ of the statute have been respected by this re-reading. In Victoria, where our interpretation mandate is not meant to follow the wilds of the UK’s version, a declaration of inconsistent interpretation (assuming the Charter s. 7(2) test isn’t satisfied) would seem to be the appopriate response to a provision like this.

The Charter vs DNA sampling

I spoke too soon last post (as I often do.) The Charter has gotten a mention in a County Court judgment that is public available. I’ve known for a while that the County Court does publish selected judgments online, but they nearly all seem to be cases concerning the Accident Compensation Act. Fascinating for all those who want to know the percentage impairment for the loss of a middle figure or whatever. However, a search on the word ‘Charter’ that I typed in just now popped out a criminal case  brought down in June: R v Long [2008] VCC 595, curiously filed under ‘L’. Not that the judgment proves illuminating of anything except Victorian judges’ continuing inability to read the statutes they’re asked to apply.

This matter was a follow-up to a 2007 crimnial trial. Michael Long faced nine charges relating to an incident with Jeanette Long (his wife? Or ex-wife?), including kidnapping and rape; however, he was only convicted of a single charge relating to slapping her in the face. The police wanted to retain a DNA sample taken in relation to the more serious charges, so they asked the trial judge, Susan Cohen, to make an order. And here’s where the Charter got a mention:

In the course of written submissions, an issue was raised on behalf of the respondent concerning the Charter of Human Rights. I had my preliminary views notified to both parties with a request for any further submissions on them, and no such submissions were forthcoming. I have not changed my preliminary views as then set out, except to note that although this matter bears a 2006 file number, the presentment was not in fact filed until July 2007. However, as that date, and indeed the whole of the trial, the jury verdict and the sentencing, occurred prior to the commencement of the Charter of Human Rights, the same reasoning applies and I am not satisfied that it has any application in this proceeding. The merits of the substantive argument can be left for another case.

Well, that’s pretty vague, but it seems obvious what’s going on. Judge Cohen is applying the dreaded Charter s. 49(2):

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

But, as readers of this blog – and anyone who bothers to read the Charter’s commencement clause – well knows, Part 2 commenced on 1/1/7. So, ‘the whole of the trial, the jury verdict and the sentencing occurred’ after the relevant commencement. Judge Cohen, like Bell J and VCAT Member Nihill before her, has got the date wrong, presumably misled by the Charter’s incorrect EM. That being said, again like Bell J, it looks like she may actually have gotten the right result, because, if R v Williams [2007] VSC 2 is correct, then the fact that Long was charged before 1/1/7 (as it seems he was) is enough to mean the Charter s. 49(2) applied. But that assumes that this DNA proceeding is part of the earlier one; no matter what date Cohen J was using, she should have considered that question.

Enough is enough, surely. This is now becoming quite a trend. Isn’t it about time an urgent all-points bulletin was sent to all judges pointing out the correct date in Charter s. 49(2)?

It’s a pity that Cohen J (mis-)applied Charter s. 49(2), because I would have liked to have known more about the Charter arguments in this case, which raise a potential conflict between Victoria’s DNA sampling regime and the Charter. Continue reading

Keeping up with the cases

I’ve done a little re-arranging and adding to the links on the right-hand side of this page. The main addition is the new section on ‘recent cases’, which is part of what I use to keep up with the latest human rights case law (aside from reading the newspapers.) All Victorian statutory interpreters arguably ought to be keeping up, thanks to Charter s. 32(2):

32(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.

Each of the links is a pre-programmed search of a publicly available database of caselaw that seems to work quite reasonably at picking out the latest cases from key jurisdictions that raise an issue under a human rights statutes. All of them only pick out cases from appeal courts (rather than first-instance and tribunal decisions), with the exception of the Vic Charter cases (where the pickings are so slim.)

Here are the details:

  • Can Charter cases: All Canadian Supreme Court, Federal Court of Canada and provincial Courts of Appeal cases that mention ‘The Charter’ and are archived on Canlii, in reverse chronological order.
  • ECtHR cases: A simple link to the ‘recent European cases’ page of Baillii. (No need to search, as they are all rights cases, of course.) The Court’s own HUDOC gives a fuller list, but it’s interface seems to have been coded some-time during World War II! I find it more useful these days to read ECHRblog.
  • HKBor cases: Two links for FAC (Final Appeal Court) and CA (Court of Appeal) cases from Hong Kong that mention “Bill of rights”, in reverse chronological order. I’m using the official Hong Kong courts site, rather than HKLii, as the latter’s ‘sort by date’ function doesn’t seem to work. The official site (like all official sites, it seems) is slow and clunky. And I’ve had to separate the two top courts because they can’t be search simultaneously without capturing the lower courts too. Nevertheless, I’ve already found this search useful in picking up some interesting criminal process cases from HK, on the non-curial effect of the presumption of innocence and the extent of the  privilege against self-incrimination. HK deserves particular attention in Australia, because of HK’s common law link;  its particular link to the Australian judiciary, via the occasional appearance of Anthony Mason and Michael McHugh as part-time judges on the FAC; and its somewhat Charter-like Bill of Rights Ordinance (complicated by the replication of some provisions in its post-1997 Basic Law.)
  • NZBoRA cases: Two links for the Court of Appeal and the new Supreme Court of New Zealand that mention “Bill of Rights”, in reverse chronological order, from NZLii. Don Mathias’s blog notes many of these cases, but not (typically) the non-criminal ones.
  • SABor cases: A combined search of Saflii of South Africa’s Supreme Court of Appeal and Constitutional Court for cases that mention “bill of rights”, in reverse chronological order.
  • UKHRA cases: This search shows every House of Lords, Privy Council and England & Wales Court of Appeal (crim and civ) cases that has ever mentioned the phrase “Human Rights Act” and has made it onto Bailii. Nice for keeping up with the latest but also for scrolling down memory lane to the earliest ever mentions of that statute, before it ever commenced. Maybe Victoria will have over 1000 cases at appellate level on the Charter in a decade or so. Maybe not.
  • UNHR Com cases: A link to recent cases from the official site (with its League-of-Nations-era web interface.)
  • Vic Charter cases: This link has been on the blog for months and it’s how I keep up with all the local excitement here at Chaterblog. The search is of every Austlii case (thus picking up non-Victorian passing mentions) at every level, for the phrase ‘Charter of Human Rights’. (I leave off the ‘and Responsibilities’, because just about everyone does, although it means that I sometimes capture immigration cases on some similarly named UN document.) Note that, unlike South Australia, Queensland and Western Australia, Victoria does not make judgments from its intermediate court – the County Court – publicly available, a reprehensible policy that probably hides a lot of fascinating insights into what is going on in a major court for Charter matters. I’m yet to learn of a single County Court case that has cited the Charter, but I find it hard to believe that there haven’t been any.

I have no link for the ACT, as the ACT cases on Austlii are always hopelessly out-of-date – what is it about the Territories? – and the otherwise useful government website doesn’t allow links that embody searches. (If you want to search for recent cases, just go to here or here and type in “Human Rights Act” into the ‘content’ box.) But there’s no need for me to keep track of ACTHRA cases, as Gabrielle McKinnon seems to find out about them 9/16ths of a second after they’re announced.

The right to orgy

I wasn’t really expecting this to become a sex, planning and mental health blog, but what can I do? Today’s long expected decision upholding Max Mosley’s claim for breach of confidence against the venerable News of the World is a key example of a statutory human rights law having a transformative role on ordinary law and, through it, ordinary life. It’s possible that, with this case, the UK tabloids will reel back some of their most intrusive reporting on British celebrities. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 is a perfect example for Bob Carr and James Allan to use to criticise the horror of rights-crazed activist judges. Off you go! [EDIT: And now Allan has. Naturally, his column downplays the judge’s finding that the NotW was wrong about the ‘Nazi’ claim, as such factual issues get in the way of Allan’s agenda of portraying all human rights cases as exclusively about values. .]

Mosley’s celebrity status is (or, more accurately, was) due to his Presidency of the FIA, which runs Formula One racing (including Melbourne’s own Grand Prix? Beats me.) This, it seems, was reason enough (if a reason was needed) for NotW to expose Mosley’s penchant for S&M, complete with pun-laden front-page and inside-the-fold spreads (“THE PITS!”), photos (“TEA-TIME: Mosley after orgy) and, on its website, video footage of a couple of recent get-togethers (albeit with the naughty bits sensitively obscured by chequered flags.) Unsurprisingly, Eady J found that this engaged Mosely’s right to privacy under the ECHR, which is similar to Victoria’s Charter s. 13(a):

13 A person has the right- (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with…

Eady found that sexual conduct in private is (or, in Mosley’s case, was) pretty damn private and that clandestine recordings are a pretty big interference. He rejected arguments that Mosley’s orgies weren’t so private, due to the involvement of multiple people, video cameras and money. He also noted that a NotW journalist’s subsequent threats to name other paid participants in the orgy unless they gave an interview was also a breach of their human rights (not to mention, most likely, the law on extortion.) The significance of this is that it brought Mosley’s claim within the modern human-rights-crazed British law of confidentiality, which now protects confidentiality even when there’s no pre-existing relationship between the claimant and the defendant. (It should be noted, though, that Eady also found that Mosley’s claim was also within old-style confidentiality law, due to his contract with the rogue hooker – woman E – who spilt the beans to NotW for £25,000.)

That wasn’t the end of the matter, of course, as NotW could rely on a human right of its (or, more precisely, its readers’) own, the ECHR equivalent to Charter s. 15(2):

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 kinds…

The balancing of privacy and expression came down to whether there was a public interest in Mosley’s private practices. Eady quickly dispatched of NotW’s claims that Mosley’s parties needed to be outed for their criminality, depravity and adultery. (Mosley’s wife was the only one with a particular interest in the latter.) But NotW had another angle, both in its papers and in court: that Mosley’s parties were, NotW alleged, Nazi-themed. This fact gained some significance in Mosley’s case because, according to NotW, his family had Nazi links: indeed his parents were married at Goebbels’s place with Hitler as a guest of honour.

Alas, for NotW, Woman E didn’t testify at the hearing, so the paper had to rely on the video. Eady’s approach was to studiously compare the video (of an alleged concentration camp scenario) to actual life in a concentration camp. The role-playing failed to match-up, what with the ‘judicial scenario’ (Mosley was apparently in a concentration camp for crimes, rather than ethnicity); the English names for various players; and even the horizontally striped uniforms (whereas the real camps used less flattering vertical stripes.) There was, of course, the small matter that various conversations occurred in German (albeit with sexual, rather than genocidal, content) and that one of the women yelled out that she was ‘an Aryan blonde’ (although that followed another woman’s claim that “Brunettes rule!”, which doesn’t entirely capture the full philosophy of Mein Kampf.) But, as Eady sensibly pointed out, if Mosley had wanted a Nazi theme, then there were plenty of places in Britain where he could get actual Nazi costumes (as all royal followers well know.) The result: he got a tidy damages pay-out and NotW were also up for Mosley’s yooge legal fees. (NotW avoided exemplary damages, though, because Eady accepted that they really did think Mosely was a Nazi.)

So, does that mean that Victorian celebrity S&Mers can now orgy with peace of mind? Alas, no, due to the technical human rights issue of ‘horizontal effect’. Continue reading