Lynch’s bodgy evidence

It isn’t only the anti-Charter mob who are gilding the lily. While I hate to bite the hand that feeds me, I have to comment on one aspect of HRLRC Director Phil Lynch’s otherwise sensible review of the first 18 months of the Charter:

It is almost two years since the Victorian Charter of Human Rights and Responsibilities received royal assent, 18 months since it entered into force, and 6 months since it became fully enforceable. While this makes it a little too early to evaluate whether the Charter is achieving its lofty aim of a ‘democratic and inclusive society that respects the rule of law, human dignity, equality and freedom’, it is sufficient to make some significant evidence-based observations…

Second, the courts have demonstrated that they are very adept at identifying which cases are meritorious and raise human rights concerns, and which are not. Channel 9’s attempt to rely on the ‘right to freedom of expression’ in its appeal against the suppression of ‘Underbelly’ was quickly dismissed. So too was Carl William’s attempt to obtain a stay of his criminal prosecution on the basis that his ‘lawyer of choice’, Peter Faris, was not available on the dates fixed by the court. Faris’ fees gave way to the importance of the efficient and expeditious administration of justice. On the other hand, the Charter – in particular the right to freedom from arbitrary detention – did play a very important role in a case which confirmed the fundamental principle that an innocent person should not be held in custody awaiting trial for a period longer even than he or she would serve if guilty of the offence…

Now, now. I know not everyone (well, as near as I can tell, no-one!) agrees with me on the merits of the Court of Appeal’s decision in General Television Corporation v DPP [2008] VSCA 49, but the Court never got to decide any Charter issues in that case. Rather, Channel Nine had to withdraw its Charter arguments after being told that pursuing them would force a delay that would render the appeal moot. Hardly a high point in the Charter’s operation or our courts’ discerning approch to human rights claims! (Yes, the Court did indicate its views about the merits of Nine’s Charter arguments; but are outright dismissals of a particular right by Victoria’s top court without proper arguments from counsel or analysis in the judgment really something to laud?)

And, likewise, while R v Williams [2007] VSC 2 remains one of the standout analyses of the Charter to date, King J never got to the merits of Williams’s Charter claims either. Instead, the gangster missed out due to Charter s. 4(1)(j) (because adjournment decisions are ‘judicial’) and Charter s. 49(2) (because Williams’s charges pre-dated the Charter), hardly the most stirling provisions of our new human rights law. And I’m a little alarmed to hear that Lynch thinks that this Charter right:

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-

(d)…to defend himself or herself… through legal assistance chosen by him or her…

ought to come second to ‘the efficient and expeditious administration of justice’ or should be refused simply because the defendant or his lawyer aren’t very popular.

Finally, as near as I can tell, DPP v Gray [2008] VSC 4 was founded on Charter s. 25(2)(c), not Charter s. 21(5). But, more importantly, it’s an unfortunate instance of a poor, almost non-existent, analysis of the Charter. And, if we’re going to name Carl Williams when we’re lauding the courts’ rejection of Charter claims, then why not give us a bit of background about Kelly Gray, the Charter’s first beneficiary?

Now, none of these things are anything in the league of Allan’s, Carr’s and Albrechtsen’s dodgy claims about other countries’ rights cases. Reasonable minds can differ on these things. But I think that this paragraph of Lynch’s review is more about spin than evidence. Doubtless, some spin is needed to counter some of the crap that the Oz’s anti-Charter squad of been peddling, but they aren’t the only audience that matters. Personally, I don’t think that there’s much to crow about in terms of Charter litigation to date and, while that’s understandable to an extent, it’s a potential problem that needs to be acknowledged. Otherwise, there’ll be little reason for the courts to lift their game and it’ll also be harder to make the case for necessary reforms down the track.

That being said, I am very much looking forward to the outcomes of these initiatives:

Our Centre is looking at the Charter’s application to the invasive strip-searching of female prisoners and their visitors, with a significant majority of women in prison having themselves been victims of sexual assault. We are also considering the ways in which the Charter can be used to challenge untherapeutic practices of restraint and seclusion of people with mental illness, and to ensure that people are afforded natural justice and due process before they are treated and detained against their will. Aged care and disability services will also come under Charter scrutiny and be positively impacted.

Here’s hoping that these arguments will be given more of a hearing than Williams and Nine got and more analysis than Gray benefitted from.

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