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?

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