Hulls’s Charter report card

Rob Hulls, acting premier, deputy premier, A-G and founding father, came to speak at Melbourne Law School today. Alas, the students were not hanging from the rafters as they do for Kirbs. And more’s the pity because, much to my surprise, Hulls is a gifted speaker and, moreover, had plenty of interesting things to say. That may well not be news to people who know him, but I’ve never heard him speak before outside of head-kickin’ soundbites on the news. And, call me jaded (really!), but I’m used to politicians just blabbing out a bunch of mundane political-feed-good-speak, scribbled out by some bored public servant the day before. Yes, I’m talking about you Rob McClelland. (I’m judging that by the media releases he sends me. Maybe you just have to be there.) For that matter, most of the things I read these days, purportedly written by Hulls, are some pretty turgid and defensive statements of compatibility.

So, it was great to hear him describe his journey from law school to acting premier, via Queensland. And it was frankly inspiring to hear his commitment to improving the justice system. It was the latter that brought me to his speech, hoping to hear some tidbits about Justice Statement 2: Electric Boogaloo. He mentioned some new lists for courts (mental health) and the unification of the court system. I thought at first that that meant shifting VCAT to the old magistrates’ court building (which it probably does), but it also apparently means having a single statute for all of the courts. (Big new statutes are defintely not music to my ears, although that one does sound like a great idea.) And lots and lots of ADR – appropriate dispute resolution. Aw.

Anyway, the Charter got a relatively brief mention as one of his achievements, with him emphasising how its main aim is to restrain the executive. (No mention of the parole boards!) And a student asked Hulls about the chances of economic and social rights being introduced after the 2011 review. Hulls’s answer: nope. Basically, it won’t happen unless there’s bipartisan support for the Charter, and we’re a long way from that. Indeed. (Strange that he didn’t mention the federal charter either, which surely is a factor).

But there was one last comment he made that I want to explore a touch. He noted that there are still ‘doomsayers’ who predict that the courts will become clogged with Charter litigation and that criminals will roam the streets. His response was to note, as a positive thing, that the Charter has not yet been raised successfully by any criminal defendants. Is that true? It depends on your definition:

  • There’s Kelly Gray from Echuca, who got bail from Bongiorno J back in January, on the basis of his Charter right to a guarantee of a trial without delay. I’m not sure why he doesn’t count: perhaps because he didn’t raise the Charter (Bongiorno did), perhaps because Bongiorno more or less ignored the whole of Part 3 to give him bail.
  • There’re at least two more Charter bailees, Qang Hung Pham and  Zlate Cvetanvoski, reported in the media in the Magistrates’ Court. Surely they count? Or is Hulls only talking about cases where Charter s. 35 notices were issued (i.e. Supreme and County Court cases?) For all I know, there’ve been hundreds of these cases.
  • And what about the brothers Mirik? It’s true that the court didn’t apply the Charter in their case, but that’s because, once the Miriks issued their Charter s. 35 notices and everyone intervened, Victoria Legal Aid blinked and gave them a (joint) counsel. It’s clear that, but for the Charter, they would have been on their own when it came to defending against a crimes compensation claim. Do you need a court order to count? Or is Hulls discounting them because, like Bell J, he thought the proceedings were civil?
  • Next, there’s TP: she avoided eviction for her ex-partner’s crimes. But this is a pretty slim case, as TP was no criminal herself (even though the Department of Housing was happy to treat her like one, instead of the victim of violence they later conceded her to be) and the proceeding was certainly civil. Still, VCAT member Nhill certainly thought that the Charter will mean that future evictions of criminals will be even harder. Good news for the doomsayers?
  • Finally, Hai Minh Nguyen and Andrew Duncan, drug offenders, got some sort of vague ruling in their favour from the County Court using the Charter, in their battle against the proceeds squad’s designs on their houses. The Supreme Court affirmed the ruling, without mentioning the Charter.

OK, so Hulls is fairly close to the mark in his claims that the Charter has not benefitted any criminals (give or take the odd baillee and asset-rich drug offender.) Of course, it’d be good to know what was going on the in the County and Magistrates’ Courts, where most criminal defendants hang out. Maybe that proposed unified court system will manage to have a unified website for publishing judgments too?

But isn’t it also worth asking whether the lack of happy defendants is evidence that the Charter is working. Hulls conceded that a number of defendants have tried and failed. Apart from (possibly) the above, who are fish the Charter rejects?:

  • Before the Charter even started, Carl Williams got an extra minute of fame by being the first unsuccesful human rights litigant in an Australian state! He was done in by Charter s. 49(2) – and, um, the fact that the Charter hadn’t even commenced when he sought to have it applied.
  • First in this bellweather year of full Charter commencement, there’s Nick Corcoris, who missed out on raising the Charter in a criminal discovery claim because of Charter s. 49(2) and Bell J’s inability to get a date right. (Bell gave Corcoris a win anyway by applying international law directly somehow.)
  • Second, there’s taxi driver Genco Gunesar, who failed in his attempt to use the Charter get charges in relation to some some passengers dropped, because of Charter s. 49(3) and Habersberger J’s amazing ability to actually read a statutory provision. (Gunesar would have failed because of Charter s. 39 anyway, I reckon.)
  • Third, there’s Melbourne’s (alleged) Terror Twelve (now the Terrible Seven), who couldn’t use the Charter because of Charter s. 49(2) and, especially, Bongiorno J’s view (since endorsed by the whole court) that Charter s. 35(1) basically makes it impossible to apply the Charter in urgent matters. That’ll show those nasty crims.
  • At a stretch, there’s prospective contempt defendant, General Television Corporation (aka Channel Nine), who couldn’t apply the Charter to head off an anti-contempt injuction, for oh so very many reasons including a constitutional ambush.
  • No stretch for Hugo Rich, who was a clear miss because of that ‘tough on crime’ Charter s. 49(2). Remember to get charged after 1/1/7 next time, Hugo. He won anyway on non-Charter grounds.
  • MH6, who committed some offences after suffering a brain injury, failed to use the Charter to get out of his involuntary confinement at Mary Guthrie house. This is another stretch, as MH6 is in the mental health system, not the criminal justice system. But for that, he’d be the first criminal to actually lose a Charter argument on its merits (i.e. Charter s. 7(2), not that the judgment was particularly compelling.) [EDIT: Interestingly, he didn’t even try to raise the Charter at a Supreme Court appeal, where he argued that VCAT followed an unfair procedure in getting him to testify before the doctors who wanted him confined. Surely, there’s some sort of Charter s. 24 point there! But I guess his lawyers had lost confidence in the Charter by then. Hooray.]
  • What about Peter Swain, insurance fraudster, who wanted to drive a bus? VCAT was unimpressed by his Charter argument on both procedural and substantive grounds. Another marginal case. He won anyway on non-Charter grounds.
  • Next, Khodi Ali, acquitted drug defendant, who tried to raise the Charter to defend a proceeds application on his house, but dropped it in a hurry once the Attorney-General and VEOHRC both rocked up and (presumably) frightened the bejesus out of him. He won anyway on non-Charter grounds.
  • After that, Kathleen Zierk, a police officer whose attempt to use the Charter to fight a charge of leaking public information was batted down by Warren CJ with a non-snappy one liner about how everything trumps freedom of speech. She won anyway on non-Charter grounds.
  • Michael Long, the first known County Court defendant who tried to raise the Charter to avoid being DNA databased, missed out because of Charter s. 49(2). But, he won anyway on non-Charter grounds.
  • And MM, another mentally-ill offender, failed on substance grounds in his Charter bid for get off his meds.
  • Peter Allen had a brief moment on the Charter stage with a crazy attack on his parole board. He couldn’t use the Charter because of Hulls’s own exemption of the parole board and Hansen J’s dodgy view that the Charter doesn’t impose duties on Hulls himself. So, Hulls is making his own luck a bit…
  • And, finally (for now), there’s Ahmed Sabet, a rape defendant who lost on the ‘merits’ (in one sense of the word, anyway) before the Supreme Court in his attempt to keep his licence to practise, after Hollingworth J read the presumption of innocence down to a tiny dot by reference to a comma in the EM (which actually turned out to be a bit of spilt coffee.)

So, that’s two dozen defendants (half of whom are the Terror Twelve) who tried and failed to use their Charter, largely due to its absurd transitional provisions – the doomsayers need to shift their prediction back a couple of years – and being scared off by the notice provision. Hooray for our human rights culture!

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