Dodging a dodgy argument (dodgily)

In Allen v Secretary to the Department of Justice & Anor [2008] VSC 28, (the first Supreme Court Charter case in two months!), Hansen J was confronted by this typical example of a crazy buckshoot by an unrepresented, non-legally educated litigant:

Ground 2 complained that between 13 September 2007 and 1 November 2007 the Office of Corrections breached a duty of care and impugned Mr Allen’s right to privacy and not to incriminate himself by, without lawful excuse, procuring the release of the Dorevitch medical file, and denying him due process of law. It is then stated in ground 3 that the actions of the Office of Corrections and their “body” the Adult Parole Board offended the Westminster system, 800 years of the English Common Law and the Victorian system of due process under s 70 of the Drugs, Poisons and Controlled Substances Act 1981, the Sentencing Act 1991, the Corrections Act 1986 and the Victorian Charter of Human Rights and Responsibilities. In the further grounds it is complained that the Office of Corrections through their Adult Parole Board circumvented due process of law in that they made an allegation against Mr Allen (of drug use), cancelled his parole and imprisoned him without charge, trial or sentence under law. In these circumstances Mr Allen complains that his arrest and detention in prison is unlawful. Mr Allen further complains that despite having drawn his unlawful treatment to the attention of the Attorney-General, the Attorney-General had not done his duty to correct the abuse of due process of law, and had abused his duty of care to Mr Allen under the Charter of Human Rights and Responsibilities.

The plaintiff, the incongruously-named Peter Allen, is clearly not a happy customer of Victoria’s criminal justice system. Serving a sentence (or sentences) for an unnamed crime (or crimes) since 1985, Allen (after unsuccessfully challenging his imprisonment via habeus corpus), was paroled in March 2007. Alas:

Following his release on parole, Mr Allen reported directly to his supervising community corrections officer at Frankston. The Board monitored the parole and as part of this process wrote to Mr Allen on 3 April, 2 May, 8 August and 25 October 2007. As part of his parole supervision Mr Allen submitted to three urine tests conducted by Dorevitch Pathology, the results of the first two of which were reported to the Frankston office on 20 August and 16 October respectively. The August test recorded a positive reading for benzodiazepines, and the October test for amphetamine and methylamphetamine. Following these tests the Frankston office submitted a Breach Report to the Board which requested a further urine test which was collected from Mr Allen on 29 October 2007. That test, which was reported on 1 November 2007, recorded a positive reading for amphetamine. On 1 November 2007 the Board cancelled Mr Allen’s parole and pursuant to s 77(6) of the Act issued a warrant for his apprehension and return to prison. Mr Allen was duly arrested on 2 November 2007 and returned to prison where he remains serving his outstanding sentence.

Hence, his grumpiness about the divulgence of his test results. Of the three Charter rights he mentions, the rights to privacy and against self-incrimination can presumably be rejected on the grounds that the testing was both lawful and non-arbitary and (except, it seems, for police officers) the right against self-incrimination is usually regarded as not extending to drug testing. But it is not so easy to dismiss the remaining Charter right:

10 A person must not be-… (c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

You could, of course, run a Charter s. 7(2) response. But Hansen J instead relied on the Charter’s operative provisions:

The third point is that pursuant to s 4(1)(k) of the Charter of Human Rights and Responsibilities the Board has been declared not to be a public authority for the purposes of the Charter; see the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007. Furthermore, the Charter of Human Rights and Responsibilities does not impose on the Attorney-General a duty of care to Mr Allen. Nor in my view does the Attorney-General owe a duty to Mr Allen as contended in the grounds.

Hansen is certainly right about the Parole Board. I’m sure they’ll use this case as another justification for why they need a permanent exemption from the Charter.

But the Attorney-General, himself a public authority, hasn’t (to date) exempted himself from the Charter’s conduct mandate and I’m dubious about Hansen J’s argument in respect of him. The conduct mandate says:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

And, interestingly, the Charter’s definition section defines ‘act’ as including ‘a failure to act and a proposal to act.’ So, on my reading, the Charter may well impose a duty on all public authorities to act where doing otherwise would be incompatible with someone’s Charter rights. (And, perhaps, that aspect of Charter s. 38(1) would be enforceable by mandamus?) The better response would have been to rely on Charter s. 38(2), if only people would actually read it, to argue that, given the laws that empower the parole board, it would not have been reasonable for the Attorney-General to act to try to stop the board from imposing and operating a drug-testing programme on Peter Allen, or Charter s. 49(3).

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