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. Clause 18 of the bill deals with the potential for families to be disrupted when someone is compelled to testify in a family member’s criminal trial. A witness who has seen something that incriminates the defendant must either commit perjury, commit contempt or say something that may wreck their relationship with the defendant. Clause 18’s remedy is as follows:

18(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required– (a) to give evidence; or (b) to give evidence of a communication between the person and the defendant– 10 as a witness for the prosecution.

(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that– (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the  relationship between the person and the defendant, if the person gives the evidence; and (b) the nature and extent of that harm outweighs the desirability of having the evidence given.

A great clause, but it’s confined to the defendant’s immediate family, rather than the wider notion of ‘families’ given protection under Charter s. 17(1) and, especially, the rights of Aboriginals to maintain their kinship ties under Charter s. 19(2)(c). The SoC claims that clause 18(2) is protective enough and that it would be wrong to extend it, but it’s hard to shake the feeling that, if clause 18(2) had been drafted with the Charter in mind, then it would have been broader.

A second example is clause 138, which governs the vexed question of the admissibility of illegally or improperly obtained evidence, a major human rights issue world-wide. Of interest is clause 138(3), which requires courts exercising their discretion on whether such evidence will be admitted to consider a number of factors, including this one:

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights

Now, why would Victoria recognise breaches of the ICCPR, rather than the Charter (which, while based on the ICCPR, formulates a number of rights differently and includes rights that don’t appear in the ICCPR, such as the right against non-consensual medical treatment and the right to property?) It’s a clear case of the goal of uniformity trumping the goals of the Charter. And, if that’s the point, then it’s silly, as, because of the operation of the conduct mandate, Victorian courts will be making some quite different decisions about what counts as illegality or impropriety for the purposes of clause 138(1), so the gaol of uniformity won’t be met anyway. Who really benefits from this textual approach to uniformity, other than the hapless folks who have to write annotations to Australia’s various UELs?

Now, you might argue that, while it’s clear that the bill’s development was untouched by the Charter, it’s passage through parliament and its application by the courts will still be subject to the Charter’s guidance. But I have doubts on both points.

The Bill’s Statement of Compatibility, while lengthy and considered, was quite brief on the central compatibility question raised by the Bill’s provisions: will the rules of evidence it contains be compatible with Victorian litigants’ right to a fair hearing of civil and criminal matters? This is no idle question, as some of the new rules let in evidence that the common law would previously have excluded on reliability grounds (such as lots of hearsay evidence) and the rules also (like the old common law) may keep out evidence that is relevant to a defendant’s innocence. But here’s what the SoC said:

[W]hat amounts to a ‘fair’ hearing takes account of all relevant interests including those of the accused, the victim, witnesses and society. For example, it may be in the interests of the accused to know the name of a police informant. However, the right to a fair hearing is not breached by the privilege in respect of public interest immunity in clause 130, which enables that information to be withheld from the accused where those interests are outweighed by the public interest in preserving secrecy or confidentiality. The balancing of rights required by the charter has essentially been undertaken by both the Australian Law Reform Commission and the Victorian Law Reform Commission on whose reports this bill is based. In addition, in most cases the courts are given a broad discretion, which will ensure that the provisions are applied to ensure a fair hearing in the individual circumstances of the case. Further, clause 11 of the bill expressly preserves the powers of a court with respect to abuse of process.

Now, I well understand what a difficult – and perhaps pointless – task it would have been to separately addressed the fairness of each of the provisions of the bill. But it does seem overly simplistic to present the issue as a package one to parliament (as individual rules of evidence can be examined on their own merits) and quite dubious to present the law reform process as a rights-balancing one, especially as it predated the Charter. Moreover, while the ‘abuse of process’ ground is preserved by clause 11, its content will be affected by the Bill, if passed, because the High Court has held that courts cannot declare a trial to be an abuse of process simply because of the correct operation of rules laid down by parliament.

As well, as I’ve argued elsewhere, I think the purpose of uniformity, set out in clause 1, may take most of the teeth out of Charter s. 32(1), which is limited to new interpretations that are consistent with the ‘purpose’ of a statutory provision. And, while declarations of inconsistent interpretation are available, their impact will surely be blunted by the harmonisation process, which would require all UEL jurisdictions (including ones that lack and are hostile to rights Charters) to agree on a new legislative response. In short, I think Victoria’s new trial rule book has been and will continue to be unaffected by the Charter’s operative provisions, including the Charter right to a fair hearing.

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