Reporting season

Yesterday’s press was full of weird complaints about an avalanche of 300 annual reports, which supposedly should have been spread out over weeks to faciliate media reporting. I don’t get this: they’re annual reports (in this case, all for the last financial year) so of course they come out more or less the same time. Anyway, why can’t the media just maintain its interest for longer than a one-day news cycle? There are two bigger issues for me: First, why do they stay confidential until tabled in Parliament? All this tabling is just a pointles formality, isn’t it? Why not report directly to the public? And, second, why doesn’t tabling translate directly into accessibility? Why doesn’t parliament post these directly on its webite (e.g. While the media supposedly got their hardcopies from a little table in a hallway in Parliament, everyone else will have to twiddle their thumbs until each individual authority posts theirs on their website.

The Charter interest in these reports are that they are virtually all reports by public authorities, so there should be details of their Charter compliance. Here’s a few reports that that (in some cases, reportedly) have some interesting Charter tidbits:

  • Community Visitors Annual Report 2007-2008: The Age reports that this report alleges a mass breach of the Charter rights of some disabled people to freedom of movement and to liberty, by virtue of their continued detention in psychiatric facilities simply because more suitable voluntary facilities are not available. The report specifically considers Charter s. 7(2) and argues, bodly but convincingly, that lack of resources cannot be a reasonable limit in such circumstances. A neat example of the socio-ecomonic implications of civil and political rights. Alas, at present, the report isn’t on the Office of Public Advocacy’s website.
  • Adult Parole Board Annual Report 2007-2008: The Herald Sun reports that the Justice Simon Whelan, the Board’s Chair – what happened to Murray Kellam? – believes that there are ‘compelling reasons for a continuation of its exemption from compliance with the Charter of Human Rights and Responsibilities’. I look forward to reading the first every public account of those compelling reasons, once the Report appears at the Board’s website. Next week, I’m told.
  • Judicial College of Victoria Annual Report 2007-2008: I was expecting this report to be full of information about the JCV’s massive Charter judicial education programme, which has been such a success so far. Alas, there’s only a mention of the Judicial Officers Informaiton Network’s ‘human rights practice page’, which ‘continues to grown as the jurisprduence in this area starts to develop’. I wonder if it gets the date right for Charter s. 49(2)?
  • Office of Public Prosecutions Annual Report 2007-2008: This report, available here, contains a special coloured page on human rights. It outlines the non-application of the Charter in the Underbelly case and also the Court of Appeal’s appalling dicta dismissing the Canadian Supreme Court’s view on suppression orders in a throwaway line. (Elsewhere Rapke signals that he wants few suppression orders in future, dismissing the recent rise as a consequence of the gangland murder trials.)

More interesting is a report of a unpublished bail matter:

The applicant Mr B was charged with conspiracy to traffic a commercial quantity of drugs and was required to show exceptional circumstances in order to be granted bail. During the final submissions, the defence raised the issue of delay, stating that the rial was likely to be delayed for two years. As a result, the Charter of Human Rights and Responsibilities and the recent judgment of Bongiorno J in the application of Kelly Michael Gray [2008] VSC 4 were discussed. The DPP submitted that the application should be distinguished on the basis that whilst Bongiorno J accepted that Gray may well have remained in custody for a period in excess of his probable sentence, Mr B was likely to be sentenced to a term of imprisonment well in excess of any potential period of remand. The Magistrate ruled that whilst Mr B had demonstrated exceptional circumstances and that the likely delay would be inordinate, the risks of his re-offending and/or fleeing were unacceptable and could not be alleviated by strict conditions. Accordingly, bail was refused.

A pity these decisions aren’t published, hey?

  • VEOHRC’s Annual Report 2007-2008: This report was online yesterday arvo. Good show, VEOHRC! It reveals:
  • confirmation that the Commission only intervened in one matter in the Charter’s first six months, the Mirik case, thus casting some doubt on the necessity for Charter s. 35 notices, at least in matters where the state of Victoria is a party (and hence the notice is only for the Commission’s benefit.)
  • inquiries about the Chater doubled this financial year compared to last one (which straddled the Charter’s commencment date), from 49 to 95 inquiries. But who knows what they were about?
  • the Commission handed out six $5000 grants (from 64 applications) to promote awareness of the Charter. The lucky winners: a mental health seminar, a Charter ESL curriculum, short drama shows for kids (where can I see those? And do they cover Charter s. 38(2)?), young person’ creative responses to the Charter through film, music and design (ditto), a DVD for the disabled and some FRED-focused community service announcements on radio. (“Attention. As of 1/1/7, all listeners have freedom, respect, equality and dignity. Unless you are involved in a proceeding that commenced before 1/1/7.”)
  • Most interesting of all, there’s an account of this below-the-radar Charter involvement in an EOA exemption matter: Continue reading

In the pipeline

A VGSO seminar today on ‘The Charter’s first six months’ (of full operation) actually spent more time on its second six months. The panel consisted of Vic S-G Pamela Tate, special counsel for HR Joanna Davidson and head of the DoJ’s HR Unit, Catherine Dixon. The session opened with the news that Dixon will be shifting to VGSO on December 10th. (Isn’t that Human Rights Day?)

In the main session, Tate described Sabet and Dixon outlined the HR Unit’s work, but it was Davidson’s comments (both opening and in response to questions) that were the most interesting, particularly in describing the following Charter litigation that falls below Austlii’s and the newspapers’ (and therefore my) radar:

  • At some point, the Magistrates Court has heard and rejected an application for a stay of a proceeding based on the Charter’s right to a trial without unreasonable delay. A pity that this one isn’t on the record.
  • Also, it seems, the Magistrates Court has reverted back to ‘applying the Bail Act‘ after a brief period of following Bongiorno J’s pronouncement in Gray v DPP. Bongiorno’s comments paid too little attention to the Charter to be a stayer, but it’s a bit disturbing that the Magistrates Court can just decide to ignore a Supreme Court precedent. Again, a pity these things aren’t on the record.
  • The VCAT hearing reviewing the Mental Health Review Board’s major Charter decision is set down for a week in November. I seem to recall Davidson saying at the Melbourne Law School conference that there was an earlier hearing on the transitional issues. So, does that mean that the transition issues were rejected, sidestepped or postponed?
  • VCAT also has another Charter case concerning the interpretation of the Freedom of Information Act‘s public interest exception in light of the Charter’s right to freedom of expression (including the right to seek and impart information.) The A-G, intervening, will argue that the right to seek information only covers willing imparters. In this case, the imparter, Victoria Police, a public authority, isn’t willing. The case will be heard in December.
  • The Charter is also apparently being raised by Trevor Flugge (pictured), another notorious Australian adding his name to the select list of early Charter claimaints. Flugge, ex-director of the Australian Wheat Board, is the subject of an action by ASIC for breaches of directorial duties in relation to the Boards dealings with ex-Iraqi president, Saddam Hussein. The action commenced just before Christmas last year, much like BAE’s EOA exemption application that somehow managed to avoid the Charter. But ASIC hardly needs to worry about the Charter.  The proceedings against Flugge are brought under federal law pursued by federal agencies. The only apparent Charter link is that the proceedings are in Victoria’s Supreme Court, but it is only bound by the Charter in its administrative capacities. I’d hold on to that gun, Trevor.

So, some interesting cases on the way, but alas no judgments likely this year. Unsurprisingly, the panel was unfailingly upbeat about the Charter’s implemtation by Victoria’s courts and tribunals, with Tate lauding the gratifying experience of airing human rights issues in Sabet and noting the positive comments HRLRC director Phil Lynch made about the courts’ non-application of the Charter in his own ‘first six months’ report card.

Questions from the audience almost entirely came from Victoria Police and VCAT employees. Davidson calmed the former with some hair-raising stories of non-torture cases from New Zealand, while Tate re-assured the latter that all the confusion about Charter s. 4(1)(j) will be resolved by sufficient contemplation of the High Court’s illuminating separation of powers jurisprudence.

SARC on dust, death and dodgy fish

The Scrutiny of Acts and Regulations Committee’s 13th Alert Digest for the year (considering a record number of bills, at least in recent years) highlights three Charter issues:

  • Asbestos Diseases Compensation Bill: SARC queries whether the new procedures designed to take account of the lengthy latency and fatal result of asbestos diseases should be extended to cover non-asbestos diseases with similar charcateristics, pursuant to the Charter right to equal and effective protection against (impairment) discrimination.
  • Coroners BIll: SARC expresses its concern that the Bill will amend the Charter’s definition of ‘court’ to cover the newly created Coroners Court, thus bringing the new body within the Charter’s partial exemption for courts and tribunals from the conduct mandate (despite the new body having no role in either developing the common law or resolving private disputes.) SARC will ask the Attorney-General what the (exempt) non-administrative capacities of the Coroners Court would be and whether there are any ‘exceptional circumstances’ (a la the override provision) that justify a permanent narrowing of the Charter’s protection for human rights.
  • Primary Industries Legislation Amendment BIll: SARC commends an excellent statement of compatibility, but also has (what, for it, are) strong words about one provision, which significantly extends an existing offence of selling or possessing an illegally taken fish to cover selling or possessing a fish that has ever been illegally ‘dealt with’ under any Australian law. ‘Dealt with’ includes just about anything anyone ever does with the fish, including transporting and possessing it.  SARC has two concerns: First, that the existing offence includes a reverse onus on the issue of whether the defendant knew or ought to have known of the illegality. This is especially concerning, because the offence applies to consumers, not just commercial operators, and it carries a potential six month sentence. Second, the headings of both the existing provision and the amendment only refer to sale, not possession, so people who plan to possess a fish will have to read the text of the provision to know that they risk prison unless they can prove that they didn’t know about any illegal dealings. The strong words:

The Committee therefore considers that clause 68 may be incompatible with the Charter.

 SARC referred the issue of compatibility with Charter s. 25(1) to parliament and will write to the Miister about the headings (and the otherwise excellent statement of compatibility.)

A question of reputation

Black Inc Books, mysteriously undeterred by my negative-reviews-only policy, and the fact that I only review Charter books, has sent me a free copy of A Question of Power by Michelle Schwarz on the allegations that Geoff Clark raped several women in the early 1970s. I’ve followed this story with some interest since the allegations were publicised in 2001. Moreover, I was in Warrnambool recently speaking on the Charter at a Deakin Law School conference and was curious to know why such a scenic and well-located town isn’t better regarded as a holiday destination in Victoria. The Warrnambool tourist agency won’t be a big fan of this book, with its hair-raising claims of rape gangs roaming the streets in the 1970s and racists sipping lattes in the cafes in the 2000s.

But I’m a big fan and will definitely look up Schwarz’s other book, on the death of David Hookes. While the ‘true crime’ genre should be a natural for my interests, I’m no fan of blood-soaked yarns about nasty criminals, screeds against institutionalised racism or a cheap shot dig at the justice system. So, A Question of Power is my kinda crime reporting book, featuring detailed interviews with all parties and careful analysis of transcripts, including letting the subjects and, especially, the transcripts do most of the talking.

Writing about rape allegations is a very tricky thing for rights-oriented folks. Our instinctive reaction in favour of criminal defendants runs hard up against our knowledge of the sexism and nastiness of the criminal justice response to rape. Trying to stay true to both instincts is hard. I did my thesis on the presumption of innocence in rape trials in an attempt to walk the tightrope, and more recently tried to find commonalities in the legal wrongs done to each side in DNA cases. Schwarz, a former lawyer, doesn’t leap for the objectivity of legal analysis and policy arguments. Instead, she delves into the significant credibility issues on both sides. Her account of Carol Stingel’s tale shows clearly how compelling Stingel’s case is. Equally her examination of not just the federal and country town politics involved in Clark’s case but also the politics within Framlingham (home of Clark and a rival family including his other main accuser) is revelatory. She doesn’t reveal her conclusions (though it’s clear that she doubts Jo McGuiness’s tale) but I’d like to think that all the parties she interviewed (which is all of them apart from politicians), and especially Clark and Stingel, would think that her account was fair. That’s no mean feat!

Schwarz’s major opinions are reserved for Andrew Rule, author of ‘Power and Rape’, the newspaper article that aired the revelations, basically ending Clark’s career. I was very unhappy with Rule’s article when it came out, but my views have softened on airing accounts of crimes outside the judicial process. Schwarz’s argument focusses, not on the airing of the allegations, but on the lack of balance in Rule’s article. Most notably, she argues that it omits all of the bitter Framlingham politics that surrounded McGuiness’s claims. Unfortunately, the Walkley-award-winning article doesn’t seem to be available on the net, so I can’t check her account, but if it’s true then the article isn’t an account, but rather an attack. The Charter has something to say about such attacks:

13 A person has the right-… (b) not to have his or her reputation unlawfully attacked.

Of course, Rule isn’t bound by the Charter, although his article might (might!) run into trouble under the ALRC’s privacy proposal. According to Schwarz, Rule was initially happy to talk with her, but cut off contact once she revealed that her book wouldn’t have the same tone as his article. If that’s true, then Rule is a tool.

But what about the other sort of rule that is implicated in this story?: the Victorian laws that facilitated Stingel’s successful civil claim against Clark, which added the state’s imprimatur to the allegations aired by Rule. Continue reading

Hinch’s challenge

A prediction of mine (and kinda-sorta another) came true today. The Age reveals:

Broadcaster Derryn Hinch plans to launch a Supreme Court challenge against five charges of breaching suppression orders by naming two pedophiles. Hinch’s barrister Peter Faris, QC, told a Melbourne court today his client would challenge the validity of the suppression orders made in the Supreme Court. Mr Faris said Hinch would claim the law under which he had been charged was in breach of Victoria’s charter of human rights and responsibilities. Hinch would also claim it had removed his right of freedom of speech, the freedom of the press and to the system for open courts.

Hinch was charged after he named the sex offenders at a public rally in June and named them in an article on his website. Police later charged Hinch with having published or cause to be published material which identified an offender in contravention of suppression orders made in 2007 and this year. Mr Faris described as “somewhat farcical” that the Department of Justice would now have to apply to the County Court to have the suppression orders varied so the case against Hinch can proceed. Prosecutor Lisa Mendicino told Melbourne Magistrates Court that the Director of Public Prosecutions was not a party to the making of the suppression orders and therefore could not vary them. Hinch said outside court he believed that what he had done was “morally right” and that the court would decide whether he was legally right or wrong. Magistrate Sarah Dawes adjourned the charges until November 20 to allow Hinch’s lawyers to be supplied with the police brief.

And here’s the Hun:

BROADCASTER Derryn Hinch says he was morally right to publicly name pedophiles despite facing criminal charges for it. Hinch today faced court for allegedly breaching court orders banning the names of convicted sex offenders being released to the public. His lawyer Peter Faris QC told Melbourne Magistrates’ Court his client would take his fight against the five charges to the Supreme Court. The charges allege breaches of County Court suppression orders protecting the identities of two pedophiles that have been released from prison. He is accused of publishing their names on his website and announcing their identities at a protest rally in June this year. Mr Faris told the court he would be launching a Supreme Court challenge to the validity of the orders his client is charged with breaching, saying they were not made in the public interest. He said the charges were a breach of the Human Rights Charter as they removed his client’s right to free speech and the openness of the courts. Hinch was supported in court by wife Chanel and crime victims’ advocate Noel McNamara. Outside court Hinch said he felt what he had done was morally right but it was now up to the courts to decide if it was right or wrong. Magistrate Sarah Dawes adjourned the case to November.

The relevant law that Hinch will challenge is this provision of Victoria’s Serious Sex Offenders Monitoring Act 2005:

42(1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order- (a) that any evidence given in the proceeding; or (b) that the content of any report or other document put before the court in the proceeding; or (c) that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified- must not be published except in the manner and to the extent (if any) specified in the order.

(2) An order under this section may be made on the application of a party or on the court’s own initiative.

(3) A person must not publish or cause to be published any material in contravention of an order under this section. Penalty: 500 penalty units in the case of a body corporate; 120 penalty units or imprisonment for 1 year or both in any other case.

Back on 1 June 2008, the Sunday Age described me as saying that a judge was likely to rule that provisions of the SSOMA are incompatible with the Charter. I didn’t exactly say that, but I certainly did think a challenge was on the cards:

Mr Gans said offenders were likely to challenge such an order under the charter and a judge was likely to agree that it posed a problem.

Alas, I was speaking of orders to confine sex offenders and challenges by said offenders – such a challenge may well be on-foot, not that there’s any publicity about it – rather than challenges by people who don’t like sex offenders and want to tell the world about whether or not such orders have been made (not to mention the identity of the offenders.)

However, two days later, when the story of Hinch’s naming of two offenders broke – and before he was even charged – I predicted that he might make a challenge too, on free speech grounds. Continue reading

The Charter and committals

Tony Mokbel, perhaps alone amongst the alleged gangsters from Victoria’s underbelly, will have at least some of his charges resolved in proceedings governed by the Charter, assuming the judges running his case get the date right in Charter s. 49(2):

[I]n February and March 2006, the plaintiff was tried in the Supreme Court on one count of importation into Australia of a prohibited import, namely cocaine, in November 2000, contrary to s 233B(1)(d) of the Customs Act 1901. After the conclusion of evidence, and during the Crown Prosecutor’s address, the accused absconded while still on bail….

Between 27 February 2007 and 20 June 2007, Victoria Police filed in the Magistrates’ Court a further 15 charges against the plaintiff. Those charges included two charges of murder and five charges of trafficking in a large commercial quantity of a drug of dependence. The plaintiff was arrested in Greece on 5 June 2007.

However, Mokbel’s attempt to head-off his coming criminal trials failed yesterday.  In Mokbel v DPP (Vic) & Ors [2008] VSC 433, Justice Stephen Kaye knocked back an application for a stay based on Mokbel’s extradition occurring while his action before the European Court of Human Rights resisting the extradition was unresolved.  Presumably, Mokbel’s Charter action would have been based on his lawyer Mirko Bagaric’s argument that pre-trial publicity means that he cannot have a fair trial.  The ruling didn’t discuss the Charter, but Kaye’s rulings carry mixed news for any furture reliance on the Charter’s fair hearing right.

Kaye’s main holding was that the remedy of a stay for abuse of process is not available for committals. One of the two lynch-pins of his decision is good news for criminal defendans wishing to raise the Charter:

It is useful to commence with the appropriate characterisation of committal proceedings. In Phelan v Allen, the Full Court held that a stipendiary magistrate, in a committal proceeding, exercises a ministerial, and not judicial function, and accordingly an order by him striking out the information and discharging the defendant might not be the subject of judicial review under s 155(1) of the Justices Act 1958. In Grassby v R, the High Court held that a magistrate does not have power to stay committal proceedings as an abuse of process. In reaching that conclusion, Dawson J (with whom Mason CJ and Brennan, Deane and Toohey JJ agreed) recognised that it had been “consistently held” that committal proceedings do not constitute a judicial inquiry, but “ … are conducted in the exercise of an executive or ministerial function”. As such, the role of a magistrate or justice in holding a committal is essentially inquisitorial and administrative. Finally, in Potter v Tural; Campbell v Bah, two defendants sought judicial review of the decision of the magistrate refusing leave to cross-examine certain witnesses in the course of criminal proceedings against them. On review, the primary judge quashed the decisions of the magistrate. That decision was reversed by the Court of Appeal. Batt JA (with whom Tadgell and Callaway JJA agreed) commenced his reasons by stating: “It is established by a long line of authority in Victoria that a magistrate’s order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari … or to appeal under statutory appeal procedures replacing certiorari.”

So, committals aren’t judicial, but are rather ‘ministerial’. Kaye distinguished UK committals on the ground that they determine whether or not charges will go ahead; Australian committals, by contrast, are neither here nor there: an Australian prosecutor can ignore both a positive ruling at a committal (by entering a nolle prosequi) or a negative one (by commencing anex officio indictment.) The point of Australian committals is a bit of a mystery, and they are mostly justified by the opportunity they give defendants for discovery of the case against them.

This issue is relevant to Charter matters, because of the dreaded Charter s. 4(1)(j) partial exemption for courts and tribunals from the conduct mandate:

4(1) For the purposes of this Charter, a public authority… does not include-… (j) a court or tribunal except when it is acting in an administrative capacity;…

Note Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

Doubtless, the combination of these rulings and the note to Charter s. 4(1)(j) will be taken to have basically settled the matter. And that’s basically a good thing, as the Charter s. 4(1)(j) is stupid anyway. But I think that there is still room for doubt. Continue reading

The Charter in the suburbs

VEOHRC’s Charter report card, ‘First Steps Forward‘, revealed that many local councils – compellingly regarded as at the coalface of the practical implentation of the Charter, given their service delivery role – were yet to even start crawling during the Charter’s first year:

  • The sector’s preparedness is particularly low in ensuring that the processes involved in developing local laws comply with the Charter and in raising awareness about the Charter within local communities.
  • The failure of 25 local councils to respond to the Commission’s survey suggests a lack of engagement with the Charter by some councils that will need to be addressed by councils, peak bodies and state government in 2008.
  • While recognising the difficulties faced by local councils in engaging fully with the Charter, the sector will need to take stronger action in 2008 to ensure the compatibility of local laws and policies with the Charter and to develop a culture of human rights in local government.

The City of Hobsons Bay didn’t feature on VEHORC’s list of exceptional councils that had taken strong Charter initiatives. However, the latest newletter from the HRLRC brings some good news about the Charter’s impact in the suburbs.

Planning issues involving proposed Islamic facilities are, alas, problematic in Australia. An application by the Quranic Society for rezoning and permission to build a large school in Cawdor attracted considerable media attention, in part because of the involvement of Fred Nile. Cambden Council’s May decision to reject the application, citing a slew of planning concerns, has passed this difficult issue on to NSW Planning and Environment Court. By contrast, an application for rezoning and approval to build a new mosque in Newport West’ Paisley Park has been less difficult. Apart from leafleting by the Australian Protectionist Party, the sailing has been smooth, with a positive report from an expert planning committee and a recent vote in its favour by the City of Hobsons Bay. Is the difference just in the merits of the two applications? Or is this a Sydney/Melbourne thing? Or has the Charter made a difference?

The Panel Report on the proposed Blenheim Road Mosque refers to the Charter prominently in its introduction:

We are conscious that the Charter of Human Rights and Responsibilities seeks to protect and promote certain human rights by placing obligations on all public authorities, including local councils, to act in a way that is compatible with human rights and to give proper consideration to relevant human rights when making decisions. Of particular relevance in this situation are the rights to freedom of religion including communal religious observance, and cultural rights….

We are also conscious that any limitations on the exercise of a human rights must be carefully considered and should be the least restrictive means available to achieve the intended purpose. Our consideration of both the Amendment and the Applicaiton recognises the human rights prooteced by the Chater of Human Rights and Responsibilities and takes into account the obligations placed on public authorities.

The Charter gets a further express mention in the discussion of the proposed rezoing of Paisley Park from Education to, in part, ‘Private sports grounds and ethnic community establishments’ (allowing the construction of a mosque) and, for the remainder, ‘Public Park and Recreation Zone’. In addressing the question of whether this rezoning is ‘strategically jusified’, the Panel introduces the discussion by stating:

[T]he Charter of Human Rights and Responsibilities establishes an obligation to ensure that people can practice their religious beliefs, including communal reigious observance.

This is a pretty strong statement of the effect of the Charter! It depends on the interaction of two Charter provisions:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including-… (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

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.

Remembering that ‘act’ is defined to include ‘failure to act’ and a ‘proposal to act’, there is a lot going for the Panel’s view that Councils are obliged to do what they can to allow local religious groups to worship (and teach) in a communal way. Presumably, that would extend to making planning decisions that faciliate buildings for that purpose, at least where existing buildings don’t serve local needs. That is the case here:

It is clear from submissions and inspections that the existing mosque serves an established religious community but is too small to meet their needs. Further, the converted warehouse and dwelling provide substandard facilities for worship. Some of the inadequacies include insufficient and impractical space, poor ablution arrangements, and the effective exclusion of women from worship at the mosque.

But what about the defences to the conduct mandate? Continue reading