This, the second year of the Charter, is also the second year of the Castan Centre’s Charter of Rights Mooting Competition. Like almost everyone, they drop the ‘and Responsibilities’. And perhaps for good reason. Whereas last year, Monash beat Victoria, this year both the finalists were from my law school. I’ve no connection to the competition myself – the point person at MLS is John Tobin – and unfortunately I had to miss this year’s final, due to another engagement. Nor have I had any contact with the mooters, though I know that one of them sometimes reads this blog. (Indeed, my mooting experience at law school was pretty negative. My team lost all its moots at the Jessup Moot and I’m still smarting about one judge who praised one of my opponent’s argument that the defendant country had automatically given the ICJ merits jurisdiction simply by turning up as a ‘very original’ argument. There. Now, surely, I’ve finally gotten over that one! Sigh. Still not…)
Anyway, the Castan Centre competition is clearly a terrific idea, with the capacity not just to educate the mooters themselves, but maybe even the judges about the Charter. But, because this is Charterblog, I’ve got some concerns too. I only just realised that the mooting problems (from last year and this year) have been posted online. Last year’s problems look terrific, each requiring competitors to discuss ‘issues relating to the Charter’ about the following scenarios:
- A Sikh prisoner who had his turban, correspondence and cell searched by guards
- Student protesters who clash with Victoria police while protesting an immigration detention centre
- A privately run nursing home facing conversion into a backpackers’ resort.
These questions strike me as raising a great mix of issues about the rights in Part Two and the operative provisions in Parts One and Three of the Charter. The final, in particular, expressly involved a real statute, presumably raising all sorts of interesting issues about the interpretation and conduct mandates.
However, the style has changed for this year’s competition. The three problems are much longer and more convoluted, mixing some realistic situations (notably the final problem, which inititally resembles real life events in the US where children were seized from a polygamist compound) with some pretty bizarre scenarios (Finn twin sisters – Fwisters? – protesting against teaching methods; a vegetarian caught up in the quarantining of a country town stricken with a cow-based disease.) This is a matter of taste, of course, but I don’t much like silly scenarios. Indeed, it’s not really clear to me why you wouldn’t just set real cases: a creepy doctor trying to avoid being disbarred?; a defence company seeking an EEO exemption?. How about a broadcaster trying to show a controversial docudrama?
But that isn’t my main concern. Rather, it’s the particular issues that the competitors were asked to address. Here’s the instruction in the preliminary rounds:
The lower court held that there were no breaches of Charter rights and Heli and Liisa are appealing that decision.
And that’s a bit ambiguous. What is a ‘breach’ of a Charter right? On what basis did the lower court find ‘no breach’?
Alas, things became clearer in the semis:
The lower court found that the Charter had been appropriately raised, yet found no actual breaches of Charter rights. Peter has appealed that decision. As such, mooters do not need to argue whether or not the Charter could have even been legitimately raised in the lower court and should focus their arguments on whether or not there have been any Charter rights breached.
And crystal clear in the finals:
The court at first instance found that the Charter had been appropriately raised in relation to the cause of action (and thus mooters do not need to address this issue in the moot), however it found no breaches of the Charter and she is appealing that decision. Additionally, mooters are to assume that the arrest warrant and custody order to remove the children were properly proscribed by law. Students are reminded that this is a human rights mooting competition and therefore should focus their arguments on the substantive human rights violations and not the legality of the actions taken by police and prison guards (other than their impact on human rights).
Alas, it seems clear that the competition has changed so that competitors are to focus exclusively on Part 2 of the Charter and the abstract question of whether rights have been ‘breached’. What this seems to deliberately exclude is anyone addressing the operative provisions.
Needless to say, I think that is a bad move, akin to turning the competition into an international human rights mooting contest, rather than anything much to do with the Charter. It recalls the bad old early days of 2008 (as opposed to the bad new recent days) when Bongiorno J was bailing people without paying any attention to the significantly confined legal effect of the Charter. It mimics the non-academic approach of Faris and Bargaric‘s Charter book, in contrast to the deep technical approach of Evans and Evans. And it emphasises case law over statutes, one of my (and many others’) major concerns about legal education. Most importantly, I think it’s a major missed educational opportunity. I hope it’s a one-off.