The rights of slave-owners

In its last gasp, the Gleeson Court today gave a wide reading to a law aimed at furthering this right:

11(1) A person must not be held in slavery or servitude.
(2) A person must not be made to perform forced or compulsory labour.

Although The Queen v Tang [2008] HCA 39 was about events in Victoria, this was no Charter case but rather the application of federal criminal law. The court gave a broad reading to this definition:

270.1 For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.

The Court unanimously held that the ‘condition’ of slavery doesn’t require any de jure ownership of a person (which is impossible in Australia, and indeed most places), but rather de facto ownership. In particular, it was capable of covering the sitution in this case, where Thai prostitutes had their freedom of movement severely restricted by a combination of social isolation, fear of deportation, continual surveillance and an onerous debt to be paid off by prostitution. A similar reading would presumably be made of ‘slavery’ in Charter s. 11(1) (although the other terms of Charter s. 11 would presumably have filled any shortfall in that term.)

But the real interest of the case isn’t the definition of ‘slavery’ or ‘slave’, but rather the definition of a slave-‘owner’. Under Commonwealth law, that depends on this criminal offence:

270.3 (1) A person who, whether within or outside Australia, intentionally: (a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership… is guilty of an offence.
Penalty: Imprisonment for 25 years.

Wei Tang, the owner of a Fitzroy brothel, Club 417, was found by a jury to have either possessed or used five prostitutes, in the case of four by virtue of her ownership of a share of the debt each was considered to owe to the smugglers who brought them to Australia, and in the case of the fifth by her use of her as a worker at her brothel (although her debt was owned by others.)

So, Tang did things that brought her within the definition of a slave-owner. But did she have the mind of a slave owner? The jury weren’t sure, asking two questions of the trial judge:

Does the defendant have to have known what the definition of a slave is ‘to intentionally possess a slave’ as stated in the indictment?

This has an easy answer: no. Criminal responsibility isn’t a matter of how the law is going to characterise partiular facts, but rather knowing what those facts are. The jury’s second question was:

To intentionally possess a slave is it necessary for the accused to have knowledge that her actions amount to slavery? or Is it sufficient that the accused only have knowledge of the conditions she has imposed (ie slavery has not entered her mind) and the law has decided those conditions amount to slavery.

This question is different to the last one, because it’s about Tang’s conduct, rather than about things external to Tang (like the characteristics of the prostitutes in her brothel.) Nevertheless, you might think that it has the same answer as the last one – that Tang doesn’t have to know how the law would characterise her actions, just what her actions are – and you’d be right. But the jury’s question touched on a tricky issue about criminal responsibility: that our responsibility for our conduct is not just a matter of awareness of facts, but of intention. (And, can I just say, boy this is a sharp jury!)

The Criminal Code defines intention as follows:

5.2(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

The Victorian Court of Appeal held that Tang’s conviction couldn’t stand, because the jury were only told to assess Tang’s awareness of facts, but not what she meant by her actions. The Court of Appeal said that the jury should have been told:

[T]he Crown must prove that in exercising the relevant power over a particular complainant (that is, possessing or using the complainant) the accused was treating that complainant as though she was property, as if she owned her, as if she could do with her whatever she chose to do. You must be satisfied that the accused was intentionally exercising a power that an owner would have over property and was doing so with the knowledge or in the belief that the complainant was no more than mere property.

If it is reasonably possible that the accused acted to possess or to use the complainant with the knowledge or in the belief that she was exercising her rights and entitlements as her employer or contractor and not in the belief that the complainant had no rights or free will, but was property, a thing, over whom she could exercise power as though she owned her then, however exploitative and unfair you may think her treatment of the complainant was, it would not constitute the offences of intentionally possessing or using a slave.

Clearly, this direction would have involved, not only Tang’s sensory perceptions of what she was doing, but her attitude towards it. Was she thinking like a slave-owner?

In today’s judgment, the High Court re-instated Tang’s conviction, rejected the Court of Appeal’s argument and effectively ruled that anyone who knew that a person was a slave could be a slave-owner, by virtue only of their actions, and not their attitudes. Continue reading

Charter s. 35 in practice

I’ve just noticed that, ten days ago, the Supreme Court issued a practice note on the operation of Charter s. 35:

35(1) A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if- (a) in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) in any case, a question is referred to the Supreme Court under section 33.

The note is exclusively concerned with timing issues, which Charter s. 35 is silent on. The note notes:

Neither the Charter nor the Regulations set out specific requirements as to when notice is to be given or when the Attorney-General and the Commission are to indicate whether they intend to intervene in a proceeding. The Court is concerned to ensure that, where required, parties comply with section 35 at the earliest opportunity to avoid delays and the wastage of costs which could occur as a result of late compliance. The Court’s expectations of practitioners in this regard are set out below.

Actually, Charter s. 35 doesn’t set out any consequences of late or non-compliance at all and it seems to me that some consideration should be given to the possibility that there are no consequences. While I imagine there’s a strong argument that the purpose of Charter s. 35 is to facilitate the intervention powers in Charter ss. 34 and 41 given respectively to the A-G and VEOHRC, isn’t there a strong counter-argument that creating barriers to the ad hoc raising of the Charter’s interpretative and conduct mandates as a routine matter in litigation is at odds with the human rights culture the Charter is supposed to foster? (My fears here are heightened by unfortunate examples where Charter s. 35 has resulted in the dropping of otherwise quite plausible Charter arguments.) Drawing an analogy between Charter s. 35 and s. 78B of the Judiciary Act (which requires notice to every A-G in the continent on constitutional matters) isn’t apt: the Constitution’s subject-matter is much narrower than the Charter and its legal effect (including invalidity of legislation) is much broader. (Alas, the Court of Appeal has no qualms about using s. 78B to block Charter arguments, even in urgent matters.) For what it’s worth, the note observe that:

Whether service of a notice in close proximity to a hearing or trial necessitates an adjournment will be a matter for the Judge or Master hearing the proceeding.

On the question of timing, the note lays down the following ‘expectations of practitioners’, with non-compliance to ‘be taken into account, where relevant, in relation to the question of costs’:

First, the note notes that the A-G and VEOHRC say that their ‘expected response time’ is 14 days. There’s no further commentary, so the implication is that the Court either backs that estimate or feels that it has to defer to it. I’m no practitioner, so I can’t judge whether or not a fortnight is a reasonable response time and whether or not litigants can reasonably be expected to pick up and formulate their Charter arguments that distance from a trial.

Second, the note also requires that the court and other parties be given the notice at the same time, even though that requirement isn’t in Charter s. 35. This is to ‘ensure that it and other parties to proceedings are informed in a timely fashion of Charter issues arising in a proceeding’. It’s not clear to me why a special rule is needed beyond the usual ones that allow parties to be informed of each others’ arguments. (My bleary memories of civil procedure touch on the word ‘pleadings’.) And why is the Court so keen to know in advance whether or not there’s a Charter issue looming? Aren’t all the judges on top of the statute by now?

But there’s more: Continue reading

Britain learns from Victoria

Victoria’s Charter clearly owes more to Britain’s Human Rights Act than any other (domestic) rights document. So, it’s interesting that Britain is looking to Victoria in its examination of whether it should introduce a new British Bill of Rights. The UK Joint Committee on Human Rights recently issued a report on its preferred model, which included the following references to Victoria:

  • The report cited Victoria (alongside other Australian jurisdictions) as a rebuttal of the claim that a bill of rights can only emerge following a crisis (like the American or French Revolutions, or Apartheid.) The Australian statutes are actually no evidence of this, as the rights they protect (like the UK’s own Human Rights Act) are almost exclusively drawn from international treaties that were developed in the aftermath of World War Two. Canada, also cited by the Report, is a better example (although it did come in the midst of the Quebec seccessionist crisis.)
  • The report endorsed Victoria’s approach of placing ‘the legislature central to the process of human rights protection’. The JCHR’s skeleton draft bill indeed copies Charter s. 28’s requirement that the government issue a detailed statement of compatibility stating how a bill is compatible with human rights (which it noted was inspired by the JCHR’s own experience.) Its version of Charter s. 28 is enhanced by a requirement for a human rights ‘impact statement’ and the extension of the requirement to statutory instruments and orders in council. On the other hand, the draft bill contains no provision equivalent to Charter s. 30 requiring a JCHR report on each bill, presumably reflecting its own decision not to provide a comprehensive scrutiny function.
  • The report endorsed Victoria’s requirement in Chater s. 37 that the government make a formal response to Parliament in the event of a declaration of incompatibility. However, its draft expands on the requirement, setting a three month deadline for an initial response, a six month deadline for a remedial response, a requirement for a parliamentary motion in response to both statements and a power for a court to judge the remedial action. Needless to say, the JCHR draft doesn’t use Victoria’s dreadful ‘declaration of inconsistent interpretation’ terminology.
  • The report adopted Victoria’s requirement of statutory reviews, replacing the four-year and eight-year reviews by the Attorney-General mandated by Charter ss. 44 and 45 with a single five-year review performed by an ‘independent panel’.
  • The report wholeheartedly endorsed the consultative process that led to the adoption of Victoria’s Charter, ‘in particular its focus on public engagement’.

All up, a very positive verdict on the Charter. That being said, the JCHR folks seem to follow the ‘if you don’t have anything nice to say, don’t say it’ approach, at least as regards comparative lessons of the negative variety. Notably, the JCHR wholly rejected the government’s proposal for a British Bill of Rights and Duties: (BORAD!) Continue reading

Comparative leaking

The ACT’s Charter (the much-better-named Human Rights Act 2004) got a passing mention in R v Tjanara Goreng-Goreng [2008] ACTSC 74. I usually don’t cover ACT cases (as ACTHRA does all that) but this one is on basically the same criminal offence as a Charter-related case, DPP v Zierk (blogged on here.)  Zierk involved a Victoria Police officer who leaked non-secret police manuals on speeding to an ex-officer, whereas the ACT case involved a federal public servant accused of telling the subject of a complaint about the details of the complaint (in a chain of events that contributed to the NT intervention.) So, unlike the Victoria Police disclosure offence, the ACT case involved a federal offence:

70(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

Interestingly, though, both offences follow the same form, which is a common form across Australia that (apparently) originated in Victoria in the mid-nineteenth century. And both cases involved an assessment of documents thought to define the duty of non-disclosure. What is especially interesting (and something I was unaware of) is that there was an earlier federal court judgment in 2003 on the compatibility of the regs defining the duty of non-disclosure for federal public servants with the Constitution’s freedom of political communication.

So, there are now three cases, from three different Australian courts, on a common rights issue: the extent to which a public servant’s freedom of expression (in the form of leaking) can be limited by laws promoting the state’s interest in the confidentiality of its administrative workings. Here are three quotes from each of the three cases:

Irrespective of whether there was a duty not to disclose, the respondent was not authorised to release the information… [A]ll organisations, must keep some material confidential. That confidentiality will not always, and perhaps rarely, be overridden by the unauthorised person’s ‘right to freedom of expression’.

[W]hatever may have been acceptable in the past… the State’s interests do not override as of course any other legitimate interest of the public servant with which they conflict… However, it equally has been well recognised that such other legitimate interests… similarly do not override the State’s interest in regulating its officers and employees.

If one accepts, as I do,… that government as an employer has a legitimate interest in preventing disclosures that would or might interfere with their effective operations, the question is not that one starts with a preference for disclosure, but rather how does one determine the limits.

The order here is (what I judge) as the most restrictive view on freedom of expression to the least restrictive. The last two are pretty close, while the first one – with its  view that freedom of expression ‘perhaps rarely’ overrides confidentiality – clearly strikes the relevant balance squarely in favour of confidentiality and against freedom of expression.

So, it’s sad, isn’t it, that the most restrictive quote is Warren CJ’s dictra in Zierk of the Charter’s role in such cases, while the less restrictive quotes concern non-HRA/Charter cases, including one that preceded both statutes?  Continue reading

The Charter vs. Charter s. 48

For obvious reasons, Charter s. 48 – the Charter’s savings provision for abortion and child destruction laws – is very much on my mind. Beyond bland quoting of published views, I won’t be commenting here on exactly how Charter s. 48 interacts with the Abortion Law Refom Bill 2008.

But there’s one Victorian law about abortion that the Bill leaves untouched. It’s this one:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

So, here’s a puzzle: does the Charter apply to Charter s. 48? In particular, could someone seek a declaration of inconsistent interpretation about Charter s. 48?

The phrase ‘law applicable to abortion or child destruction’ appears to cover Charter s. 48 itself. That would seem to imply that the Charter (including Charter s. 36, the declaration section) doesn’t affect Charter s. 48. But the problem is that the phrase ‘in this Charter’ surely also covers Charter s. 48, which is obviously in the Charter. That means that, by the terms of Charter s. 48, Charter s. 48 is ‘saved’ from… Charter s.48. And that means that the exemption of effects of the Charter (whatever they are) from abortion laws doesn’t extend to Charter s. 48. And that means that the Charter (including Charter s. 36) do affect Charter s. 48. But so does Charter s. 48. Which means that the Charter doesn’t affect Charter s. 48. Which means that Charter s. 48 doesn’t affect Charter s. 48. Which means that the Charter does affect Charter s. 48….

And so on. In short, Charter s. 48 basically has the following form: “This Act doesn’t apply to this section.” The dreaded self-referential law! Indeed, it’s a self-contradicting law. That’s the worst sort!! Perhaps my  double degree in theoretical maths and law will be useful at last. If only I remembered any of the maths! What is the set of all sets that don’t include themselves? (I always got that one wrong in the exam!) And where’s my copy of Gödel Escher Bach?

Um, maybe it’s best if Charter s. 48 isn‘t a law applicable to abortion or child destruction’. For example, I guess you could argue that Charter s. 48 is really a law applicable to laws applicable to abortion or child destruction, which isn’t the same thing as a law applicable to abortion, etc. So, Charter s. 48 wouldn’t be self-referential anymore. That’d be a relief! Or would it? Continue reading

Un-Chartered abortion

Yesterday was a landmark day in Australian abortion law, with a government bill going before Parliament for the decriminalisation of abortion. However, it is also a landmark in Charter practice, as this is the first bill since 1/1/7 that goes to parliament without a statement of compatibility. The reason is this provision:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

In the Charter’s Second Reading Speech, Attorney-General Hulls said:

The right to life is a key civil and political right and is protected by the bill. As the provision is not intended to affect abortion laws, a clause is included to put beyond doubt that nothing in the charter affects the law in relation to abortion or the related offence of child destruction. The government is mindful of the range of strong community views on this issue and has never intended the charter, which is aimed at enshrining the generally accepted core civil and political rights, to be used as a vehicle to attempt to change the law in relation to abortion.

In her Second Reading Speech for the Abortion Law Reform Bill 2008, Minister Morand said:

In accordance with section 48 of the Charter of Human Rights and Responsibilities, a statement of compatibility for the Abortion Law Reform Bill 2008 is not required. The effect of section 48 is that none of the provisions of the charter affect the bill. This includes the requirement under section 28 of the charter to prepare and table a compatibility statement, and the obligation under section 32 of the charter to interpret statutory provisions compatibly with human rights under the charter.

A private member’s bill decriminalising abortion tabled last year included a statement of compatibility, which said:

This bill does not raise any human rights issues. The charter protects and promotes the human rights of ‘persons’, or ‘human beings’, regarded under Victorian law as existing from the time a child is born alive and exists separate from, and independent, of their mother. The charter does not disturb this well-established legal position and expressly provides that the provisions of the charter do not affect the law applicable to unlawful abortion the subject of the bill (section 48 of the charter).

For my earlier post critiquing the drafting of Charter s. 48, see here.

Rights dialogue on regulations

The Charter follows the much vaunted dialogue model when it comes to statutes, including mechanisms for pre-enactment dialogue, such as statements of compatibility and SARC reports. A unique feature of the Charter is that this dialogue also extends to regulations, by virtue of one of the Charter’s consequential amendments to the Subordinate Legislation Act 1994. The two mechanisms for this dialogue are Human Rights Certificates:

12A(1) The responsible Minister must ensure that a human rights certificate is prepared in respect of a proposed statutory rule, unless the proposed statutory rule is exempted under subsection (3).

and a new head of review for SARC in its regulation review function:

21(1) The Scrutiny Committee may report to each House of the Parliament if the Scrutiny Committee considers that any statutory rule laid before Parliament-… (ha) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities…

Alas, this dialogue lacks the transparency of the parliamentary dialogue. Human Rights Certificates (like the many other statements and certificates produced in respect of regulations) aren’t published at large (although the various documents may be circulated as part of consultations on regulations.) And SARC has not issued any reports under s. 21(1)(ha) (or, indeed, at all.)

However, one public document was tabled in Parliament this week: SARC’s Annual Review of its reporting function on regulations for 2007 (the first year of the Charter’s operation.) It contains 13 pages on the Charter-related aspects of SARC’s regulation work including six examples covering  five occassions in 2007 when SARC correpsonded with the relevant Minister about a Charter issue: Continue reading