The Thirty-Eight Steps

I’m not done yet with Sabet v Medical Practitioners Board of Victoria [2008] VSC 346, arguably the most significant Charter judgment to date (and the most flawed). In this post, I look at the overall approach Hollingworth J adopted to analysing a Charter s. 38(1) claim:

I accept the Solicitor-General’s suggestion that in analysing whether there has been a breach of a human right under the Charter it is useful to ask the following three questions:

(a) Has a Charter right been engaged? (the engagement question)
(b) If so, did the public authority impose any limitation on the right? (the limitation question)
(c) Was any such limitation reasonable and justified within the circumstances set out in s 7(2)? (the justification question)

In my previous posts, I said that, while Hollingworth completely blew the first question, she nevertheless correctly (if overly tersely) answered the second question. But was that the right question to ask? I don’t think so. Moreover, Pamela Tate’s list omitted some important questions too.

Here are the questions Hollingworth should have asked (in this or any other case involving a decision made under a Victorian statutory provision):

  1. Did the decision or its consequences engage a Charter right? (the engagement question)
  2. If so, did the public authority’s decision either (a) limit a Charter right? (b) fail to do something required by a Charter right? (c) involve a failure to give proper consideration to a Charter right? (the compatibility question)
  3. If so, was making a different decision or giving proper consideration to that Charter right reasonable in light of the governing statutory provision? (the statutory defence question)
  4. If not, is the statutory provision a demonstrably justified and reasonable limit on Charter rights? (the reasonable limits question)
  5. If not, is there an alternative interpretation (consistent with the provision’s purpose) that would make it reasonable to make a different decision or give consideration? (the interpretation question)

Sabet deserved an answer to each of these questions, but instead he only got answers (of sorts) to Tate’s three questions. What did they leave out?

Starting with Tate’s, second  ‘limitation’ question: ‘ did the public authority impose any limitation on the [Charter] right?’ This is supposed to be a paraphrase of the conduct mandate:

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.

But her question doesn’t follow the language of Charter s 38(1). Rather, the only Charter sections that speak of ‘limiting’ a Charter right are Charter ss. 5 and 7, and the latter is the supposed topic of the last of the three questions in Tate’s approach. As Hollingworth correctly said, it’s a bad idea to combine the second and third questions, so it’s a pity that she adopted Tate’s approach, which does just that.

The key problem is that Tate’s ‘limitation’ language completely ignores the positive obligations imposed by Charter s. 38(1).  Charter s. 3 gives ‘act’ – a word that only appears in the Charter in the conduct mandate and sections that refer to it – an expanded definition:

act includes a failure to act and a proposal to act

Moreover, the second half of the conduct mandate specifies that a particular failure will always be unlawful: a failure ‘to give proper consideration’ to a human right when making a decision. The problem with failures to act or consider isn’t that they limit anyone’s rights, but rather that they fail to take positive steps required to respect someone’s rights.

I happen to think that the positive obligations imposed by the conduct mandate (via the double negative of making it unlawful to fail to act) are especially significant when it comes to criminal process rights. See this post for my argument that Charter s. 24, the right to a fair hearing, not only bars particular unfair practices but also creates an obligation to take steps that increase the fairness of particular hearings.  The right to be presumed innocent works similarly. The three ways of limiting Charter s. 25(1) that I identified last post  not only delineate some impermissible conduct that public authorities mustn’t do; they are also all questions of degree and, therefore, the conduct mandate may well impose some further obligations. Taking them one at a time:

(1) pronouncing guilt: Charter s25(1) means that public authorities must avoid stating that a charged person is guilty. However, as I pointed out last post, the statements that they are allowed to make because they fall short of pronouncing guilt (such as the Medical Board’s suspension of Sabet due to the risk that he’ll harm further patients, or the European examples of people suspended because their status as charged makes it difficult for them to perform a particular function, like advising a court) will often stilll be ambiguous. That is, they’ll often be liable to misinterpretation by members of the public as declarations of guilt. In my view, Charter s. 38(1) carries an obligation on public authorities who make such statements to do what they can to clarify them so as to avoid such a misunderstanding.

The Medical Board arguably should add a rider to its declaration that Sabet is suspended that notes that the suspension was made at an early stage of proceedings before the Board in relation to a complaint and that it is subject to confirmation or possible removal at later hearings.  My formulation here doesn’t actually mention the charges against Sabet, as doing so would worsen the risk of misunderstanding of the Board’s function, no matter what the rider said. (It may be a different matter if the fact of the charges were widely known.) But, as I said last post, I also think that the Board should examine its general webpage to make sure that the information it provides about its investigative process and suspension power makes it clear that the Board has no role whatsoever in determining the correctness of any charges against a doctor. The present website, which is primarily aimed at complainants, rather than interested members of the public, doesn’t seem to contain any such explanation.

(2) presuming guilt: Charter s25(1), in my view, forbids public authorities from inferring guilt from the mere fact that someone is the subject of a criminal process. As I argued last post, Hollingworth was correct to hold that the Board didn’t reason in this way when it suspended Sabet. In particular, it only referred to the charges in its background analysis and noted that they weren’t resolved. That doesn;t mean, though, that the Board shouldn’t lift its game in future matters. In my view, the Board, if it mentions charges at all (or if its reasons discuss any part of a criminal proceeding against a doctor) should expressly state that the fact of the charges is not itself relevant to its determination. The purpose of this is to focus the Board’s mind on what’s relevant and to minimise the risk that a presumption of guilt (in the form of inferences from the fact of criminal process) will creep into the Board’s factual reasoning.

(3) preferring guilt: As I observed last post, Sabet’s key Charter argument was that the Board failed to have a ‘starting premise’ of innocence. That shouldn’t be understood as an irrebutable premise (as Hollingworth assumed), but rather a commitment throughout the entire process for the Board to keep an open mind about the risk that the charges against Sabet are wrong, a crucial lesson from the history of miscarriages of justice. While my reading of the Board’s reasons is that its fact-finding was appropriately narrow and cautious, it would again have been preferable for the Board to have made an observation about the dangers of error in its reasons, again just to ensure that the Board’s members were seized of this concern, i.e. “in considering this matter, we have kept firmly in mind the possibility that the criminal charges against Dr Sabet may not be established.”

None of the above arguments cast any doubt on the determination the Board actually made against Sabet. Rather, my criticism here is that Hollingworth, writing the first major judgment on the presumption of innocence as it applies to public authorities, gave a misleadingly narrow impression of the requirements of the presumption. Public authorities who read Sabet may well think that the take-home message is: just don’t say that a defendant is guilty. That, I think, reduces a major criminal process right into a mere formality.

But there’s more: Charter s. 38(1) also imposes a positive obligation on all decision-makers to give ‘proper consideration’ to all human rights, including Sabet’s right to be presumed innocent. Early in her judgment, Hollingworth said that Sabet’s lawyers raised the ‘proper consideration’ issue; indeed, it may well have been the main basis of his claim. Aside from raising the Charter, Sabet also attempted to get regular judicial review of the Board’s decision to suspend him. This was a pretty hopeless claim. Indeed, Sabet may only have pursued it in order to firm up his Charter claim against the unfortunate view that Charter s. 39 bars Charter claims unless they are accompanied by actual non-Charter claims.

Interestingly, though, one of Sabet’s judicial review complaints was that the Board failed to consider a ‘relevant consideration’: the presumption of innocence. Hollingworth gave short shrift to that:

Dr Sabet has not demonstrated that the Board failed to have any regard to the presumption of innocence. The mere fact that the Board decided to suspend him does not establish that it had no regard to the presumption of innocence (any more than the fact that the conviction of an accused person does not demonstrate that the criminal court had no regard to the presumption). In so far as this is an attack on the weight given to the presumption, or the merits of the decision, it must fail for the reasons previously given.

The ‘reasons previously given’ were Hollginworth’s dismissal of Sabet’s attempt to rely upon the controversial asserted adminstrative review ground of ‘disproporitionality’:

[T]he cases relied upon by Dr Sabet and discussed above do not support the conclusion that disproportionality provides an independent ground of judicial review in Australia. Nor is it clear from Dr Sabet’s submissions precisely what the scope or limits of such a ground of review are said to be. It is not sufficient for Dr Sabet simply to say that there is no contrary authority. If such a ground of review is now to form part of the law of Australia, that is a decision which ought be made by an appellate court, not by a judge at first instance.

That’s just the sort of judicial boldness that a decade of Gleesonism produces. No wonder the Victorian Supreme Court has such a low rate of reversal by the High Court! And they’re proud of it too, more’s the pity. But Hollingworth never turned her mind to whether or not the ‘proper consideration’ requirement of Charter s. 38(1) may include an element of proportionality or, as Evans & Pound put it ‘a qualitative criterion against which to judge the decisions of public authorities’. If so, then Hollingworth can – and should – consider proportionality without a permission slip from further up the hierachy.

Moreover, Sabet’s particular complaint in this case provides a fairly compelling case for proportionality analysis, as the Board had more options than suspending Sabet. Sabet’s  action wasn’t against the fact that the Board took interim measures against him. Indeed, he didn’t challenge the initial measures the Board took against him prior to the charges being laid (which required him to agree not to treat females without a chaperone and to refrain from all gynecological exams.) Rather, his case was against the particular measure the Board took after the charged emerged.. At the second hearing, Sabet offered to cease treating female patients at all, apart from cosmetic treatment of the face and neck (Sabet worked at a ‘laser clinic’) and children (accompanied by chaperones in both cases.) But the Board suspended him instead.

The Board was acting under the following provisions of the Health Professions Registration Act:

40(1) A responsible board may, at any time, suspend the registration of a health practitioner if the responsible board is of the opinion that it is necessary to do so because there is a serious risk that the health and safety of the public will be endangered because the responsible board believes, on reasonable grounds, that… (c) the health practitioner has, or may have, engaged in unprofessional conduct or professional misconduct.

(5) In place of suspending the registration of a health practitioner… under this section, the responsible board may seek and accept an agreement in writing from the health practitioner to alter the way in which he or she practises as a health practitioner… to alter the way in which he or she undertakes clinical training.

Hollingworth held, correctly, that the word ‘necessary’ in s40(1) encompasses situations where suspension isn’t the only possible option, but is one of a set of necessary options, the others being encompassed by s40(5). So, clearly, Sabet’s complaint was about the discretion the Board exercised (or failed to exercise) under s40(5). Therefore, Hollingworth should have considered whether, in making that particular decision, the Board gave proper consideration to Sabet’s presumption of innocence.

Alas, Hollingworth held that s40(5) wasn’t at issue at all in Sabet’s Charter s. 25(1) claim:

It is critical to identify precisely what the Board is said to have done which limited the operation of the presumption. The court must consider whether the presumption of innocence was interfered with, not whether Dr Sabet’s capacity to practice medicine was interfered with. This is a critical distinction, which often seems to be blurred in Dr Sabet’s submissions. The mere fact that the Board decided to suspend Dr Sabet, or made adverse comments about him, does not of itself establish that it did not have due regard to the presumption.

Hollingworth herself is blurring the limitation issue (whether the Board acted incompatibly with the presumption of innocence) and the proper consideration issue (whether the Board gave ‘due regard’ to the presumption. The latter is tested, not by what the Board did do, but rather what it did not do.

The only part of Hollingworth’s Charter judgment that considered that point at all was when she purported to address the third of Tate’s questions (in the event that she was wrong in answering the second one.) But, instead of actually considering it, she instead held that the Board’s choice between suspending or imposing conditions on Sabet couldn’t infringe the Charter s. 7(2) test.

It should be noted that although many of the international cases to which I was taken apply general notions of proportionality at this stage of their analysis, the Charter requires a Victorian court to have regard to the specific factors mentioned in s 7(2), not to any such general concepts.

This is wrong. Charter s. 7(2) requires a consideration of ‘all relevant factors, including‘ the ones listed. Moreover, she completely ignores the fact that Charter s. 7(2) is deliberately framed in the same terms as the reasonable limits clauses of Canada, New Zealand and South Africa, so it’s just daft to assert that the terms of Charter s. 7(2) are somehow separate from international approaches. Again, she simply fails to give proper consideration to comparative human rights law, despite that being one of the Charter’s raisons d’etre.

Worse still, she then decided to read down the most important of the Charter s. 7(2) factors:

Dr Sabet focussed on s 7(2)(e). He argues that a restraining agreement under s 40(5) of the HPRA was a less restrictive means reasonably available, and therefore the decision should not have been made to suspend him. This submission misunderstands the meaning of s 7(2)(e). It must be remembered that it is the limitation on the human right which is relevant in section 7(2). A restraining agreement under s 40(5) of the HPRA may be a “less restrictive means” of limiting Dr Sabet’s capacity to practice medicine, but it is not a “less restrictive means reasonably available to achieve the purpose that the limitation [on the presumption of innocence] seeks to achieve.”

What the…? The ‘purpose’ of s40 of the HPRA isn’t to limit Sabet’s presumption of innocence; it’s to protect the public. So, it’s entirely relevant to ask whether there is a ‘less restrictive means reasonable available’ to protect the public and, in particular, whether restricting Sabet to laser patients and/or kids is sufficient.

What Hollingworth intended to say, I guess, is that the word ‘restrictive’ in Charter s. 7(2)(e) should be read as ‘restrictive on human rights’. That fits with Canada’s Oakes test, which requires that a limiting law ‘should impair “as little as possible” the right of freedom in question.’ Maybe Hollingworth should read some Canadian cases some time! But Canada of course has a ‘proportionality’ test too that looks at the effects of the limiting measure.

But Hollingworth’s distinction between limiting Sabet’s practice and limiting his right to be presumed innocent strikes me as totally spurious when the Board’s decision is about whether or not Sabet’s possible misconduct means that it’s safe for him to practice. Moreover, it completley ignores the separate requirement to give ‘proper consideration’ to Sabet’s right to be presumed innnocent. The Board’s decision to suspend was essentially one of risk assessment: is there a real danger that Sabet, even if he agrees not to treat most female patients (and to do nothing below the neck on adults) , will still assault one of his patients (or give them poor treatment)?

On Sabet’s side was the fact that there was no evidence that he’d breached his earlier conditions, agreed before the charges emerged. (Indeed, he passed a compliance audit shorly before being suspended.) Against him was the fact that the subject-matter of those charges arose while he was aware he was being investigated for a similar earlier (uncharged) complaint. That would, indeed, be a big concern about risks to later patients even under a monitoring regime. But only if the complaint was true (or sufficiently true). It’s in considering that latter issue that proper consideration to Sabet’s right to be presumed innocent of those charges is crucial. If the charges are wrong, then suspending Sabet would add to any injustice he faced from the charges. The Board can, of course, decide that the risk that the charges are right merits suspension. But, in doing so, it needs to bear the alternative risk firmly in mind. The fact that the Board’s reasons do not mention that risk is, surely, of some concern.

Part of the problem here is that Tate’s suggested analysis required Hollingworth to consider Charter s. 7(2). As I’ve argued repeatedly in this blog, I don’t think Charter s. 7(2) ought to be a part of a Charter s. 38(1) analysis (at least not directly.) Questions of the reasonableness of limits on rights are part of the human rights dialogue between lawmakers and the courts (and possibly others with a scrutiny responsibility for human rights; they aren’t for public authorities, who will presumably always regard their own conduct as reasonable. Indeed, Charter s. 7(2) is especially inapt as a test for whether a public authority’s failure to act is reasonable; it’s a test on limits on rights, but failures don’t (necesarily) limit any righs. Hollingworth’s overly narrow conception of Charter s. 7(2)(e) is probably a consequence of asking the wrong question.

Instead, the relevant question to consider once a berach of Charter s. 38(1) is established is whether any of the defences to Charter s. 38(1) apply. Sadly, Hollingworth didn’t consider those. Rather, she dismissed them in a ridiculous footnote that said:

There are two provisos to s 38, but neither applies in this case.

So, now she can’t even count! Here are the provisos to Charter s. 38(1):

38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision. Example Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

(3) This section does not apply to an act or decision of a private nature.

(4) Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

She must have failed to count Charter s. 38(2), which obviously applies in this case (and any case where the public authority’s decision was made under a statutory provision.) The (very) relevant question posed by Charter s. 38(2) is whether the terms of s40 of the HPRA meant that the Board could not reasonably have taken any option other than suspension and could not reasonbly have given proper consideration to Sabet’s presumption of innocence. As a commentator to my earlier post about how Charter s. 38(2), not Charter s. 7(2), is the relevant defence to the conduct mandate astutely pointed out, the advantage of Charter s. 38(2) is that it directs attention to the terms of the relevant law. Importantly, where that law is a Victorian statute – as is the case here – it also naturally draws attention to Charter s. 32(1): the interprettion manadte.  And, it’s within the analysis of Charter s. 32(1) that Charter s. 7(2) may come into play.

Hollingworth, after adopting Tate’s suggested questions, revised the questions to fit Sabet’s claim:

Applied to the facts of this case, those questions may be re-framed in the following terms:

(a) Was the Board required to have regard to the presumption of innocence at the April hearing?
(b) If so, did the Board impose any limitation on the presumption of innocence, in deciding to exercise its suspension power under s 40(1)?
(c) Was any such limitation reasonable and justified under s 7(2)
?

But, actually, Sabet’s claim merited answers to the following questions:

  1. Did Sabet have the right to be presumed innocent at the April hearing?
  2. If so, did the Board’s decision to suspend Sabet’s licence to practise (a) limit Sabet’s right to be presumed innocent of the rape and indecent assault charges? ; (b) involve a failure to do something required to preserve Sabet’s right to be presumed innocent? (c) involve a failure to give proper consideration to Sabet’s right to be presumed innocent?
  3. If so, would accepting Sabet’s proposal or giving proper consideration to his right  to be presumed innocent have been in light of s40 of the HPRA?
  4. If not, is s40 of the HPRA a reasonable limit (under Charter s. 7(2)) on Sabet’s right to be presumed innocent?
  5. If not, is there an alternative interpretation (consistent with s40’s purpose) that would make it reasonable for the Board to accept Sabet’s proposal or give proper consideration to his right to be presumed innocent?

Yes, I know this is more complex than Tate’s three questions. But the Charter’s a complex statute and I think it’ll be much better in the long run if judges consider all the relevant issues when Charter s. 38(1) is raised.

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