The (Charter of) Rights Mooting Competition

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.

2 thoughts on “The (Charter of) Rights Mooting Competition

  1. I was on the runners up team this year in the Charter moot (thought it was great fun and a fantastic experience). I now know a whole heap more about the Charter and can better understand what all its all about – on a side note, it also made me wonder what the drafters were thinking at times.  
    There were some issues with the problems. In the first round it wasn’t clear what the empowering law was so we went on a bit of a search for that (one of our team members even called the Department of Education), and as you noted we had to read a bit into the problem to make it work as an appeal. I think a big issue was cause of action – it’s this issue that Erica “fixed” in the semi-problem
    The organisers recognised the problems so tried to make things clearer in the next round, however the next problem still didn’t have specify an empowering law and after quite a long search we couldn’t find one. So we ended up making up what felt like a bit of a stretched argument that if the police had failed to act, and thereby limiting the Appellant’s rights, they would have been violating the right to life of other Victorians therefore the Charter compelled them to act, and therefore their action, being compelled by statute, was not challengeable due s 38(2). This problem actually really made us think about how the Charter works, but I don’t know if the judges bought our argument – though we got through to the next round. 
    Again as you noted, in the final they made it crystal clear that they were really interested in the breaching of rights not operative provisions – which had become more clear as the moot progressed. 
    This approach was a bit simpler in many ways, I don’t think it really tested our legal knowledge or abilities as much as wrangling with s38 or s32 would have. It was more a question of legal research and creating good analogies between existing cases elsewhere. Interestingly, we found that the Pound and Evans book more helpful, or at least user friendly, when dealing with the problems – they laid out each section and relevant law. Whereas, Evans and Evans was more useful when trying to grapple with how the Charter actually works as a whole. 
    I think that despite the problem itself we did manage to think through the some of the rest of the Charter (except the interpretation provisions), though this wasn’t required and I don’t know how much it helped us to actually win any moots. In the grand final our main problem was working out how to defend polygamy as not harming children, a rather narrow focus compared to say working out how/if the Charter relates a police officer acting without an empowering law. 
    In regards to mooting horror stories, the best I have is hearing of a friend’s moot partner wanting to join a party to an arbitration… 

  2. Pingback: Gans on the Charter Moot | James5

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