Conference Q&A

One of the best things about human rights laws is the conferences. While I (and everyone I know) doesn’t much like conferences themselves – the locations are another matter – because the papers tend to be narrow, poorly presented and disconnected from one another, human rights conferences tend to produce interesting, connected and (better) presented papers. Friday’s annual Protecting Human Rights Conference was no exception. As the final speaker for the event, I was a bit too distracted to listen carefully to every speech, so I’m looking forward to the papers appearing online (apparently at the end of this week.) Prof. Johannes Chan’s paper, in particular, looks to be a superb and much needed summary of HK human rights cases.

But what did keep me alert was the Q&A’s, where new and interesting things often emerge. Here’s my summary and takes on some of those:

Charter s. 35: Carolyn Evans, in her summary of this-year-in-the-Charter, called for the repeal of Charter s. 35, the Charter’s provision requiring notice to the A-G and VEOHRC of Charter issues in the higher courts, arguing that it hampered making Charter arguments. Pamela Tate and another questioner queried her on that call, citing her comment that the MHRB decisions to date involved not-especially-helpful legal arguments and the supposed inconsistency there. Tate revealed that Charter s. 35 was requested by the courts, who wanted better legal arguments on the Charter. She also suggested that Charter s.35 notices don’t cause delays, citing the weekend turnaround on Sabet’s request for a stay of the HPRB’s decision to suspend him. Evans, in response, mooted making Charter s. 35 transitional but ultimately opted for immediate abolition, referring to the potential for Charter s. 35 to yield government-backed, rather than neutral, legal analysis.

I say: too bloody right. No-one should put the Charter in a corner. Or, to put it more fully (including some of what I said in my own talk):

  • The problems of Charter s. 35 in practice can’t be measured by what happens after notices are issued, but rather by the potential for litigants to choose not to issue notices (and therefore make arguments) at all. Sabet, who initiated a Charter-specific claim in the Supreme Court, is hardly a case in point; rather, the relevant concern is a lawyer who thinks up a Charter claim just before or in a trial and is deterred by the threat of a costs order due to the Supreme Court’s appalling Practice Note No. 3 of 2008. More generally, even a short procedural requirement prevents the Charter from being brought up instinctively, regularly and urgently. Why should it be any harder to raise the Charter than any other statute?
  • The supposed necessity of legal advice from the A-G & VEOHRC is an insult, not only to other lawyers, but also to the County and Supreme Courts. Why would the State’s most senior judges have so much difficulty coming to terms with a forty-nine section statute that’s been around for over two years now and is the subject of a couple of excellent texts, including an annotation? And what’s the case for treating the Charter differently to other legislation (remembering that the Charter is the weakest statute in Victoria?) The fact that the judiciary asked for Charter s. 35 strikes me as another worrying sign that Victoria’s courts are no enthusiasts for the Charter, and in particular its ubiquitous use in our courtrooms. It makes me wonder: did they ask for Charter s. 4(1)(j) too?
  • It’s also worth noting that Evans’s comments about the need for legal advice related to proceedings in the MHRB, not the SC or the CC which are where Charter s. 35 applies.
  • The risk of the supposedly helpful legal advice really being the government line in disguise, alluded to by Evans, is all too real. A number of speakers pointed out the lack of funding for VEOHRC to make submissions. Instead, as I argued in my paper, the interventions have all been from the A-G and are all against rights claims. See below.

Charter s. 32: I think it was Hillary Charlesworth who noted that, in the ACT’s Raytheon decision, the ACT tribunal held that Ghaidan was not good law under the ACTHRA’s Charter s. 32-like interpretation mandate. Pamela Tate argued that the intention was that Ghaidan would be good law here, aside from the ‘purpose’ gloss on the mandate (which is there to keep back the UK’s excesses.) I’ve posted my views on the difference between the UKHRA’s ‘read and given effect’ language and the Charter’s ‘interpreted’ language here. Apparently, that difference is the work of a finicky parliamentary drafter, who thinks that using ‘Victorian’ language is more important than matching important overseas provisions. Good one, meddler. Personally, I don’t see how the ‘purpose’ provision prevents excesses like the dreaded UK rape shield law; it does, however, make it harder to make rights-compatible readings of many criminal law provisions, as I argue here.

Charter ss. 8(2) & 8(3): Deborah Morrison complained that the Charter’s equality rights are narrower than the EOA’s, and therefore can’t always be used to attack the EOA’s exemptions. Tate pointed out that Charter s. 8(3) lacks the rights-penumbra constraint that bedevils European law, but Morrison complained that the match was still too vague. I have my doubts about whether or not ‘equal protection’ is as broad as the EOA and can’t really see why the drafters couldn’t just have put in a ‘right to equality’ if their purpose was to break free of European law. I also advocate repealing the definition of discrimination too.

The A-G’s interventions: During my speech, I argued that all four of the A-G’s published interventions have been ‘opposed to rights claims’; that the A-G submitted that neither the right to liberty nor the right to a fair hearing are engaged in mental health matters and took a neutral stance on the question of whether the mentally ill can waive their right against medical treatment without full, free and informed consent; and that the A-G urged reading Charter s. 25 as limited to criminal proceedings. Victorian special counsel for human rights, Johanna Davidson, spoke to correct my ‘mischaracterisations’: the A-G doesn’t take sides, but just presents amicus-like advice; the A-G submitted that liberty was engaged in mental health hearings, but only when the patient was detained; the submission that MHRB hearings aren’t within the scope of Charter s. 24 was made only briefly and tentatively; and that the A-G backed the application of the presumption of innocence outside of courtrooms in relation to public statements.

My take (mostly said in reply):
  • The A-G’s supposedly middle ground positions aren’t especially generous! While it’s a relief that the A-G thinks that detaining a mentally unwell person limits their liberty, why on earth doesn’t the A-G think that forcing a needle into their arm does the same. (Yes, I know that Charter s. 10(c) covers some of that, but it doesn’t cover all such needling, e.g. taking a DNA sample is neither treatment nor examination.) Likewise, given that the presumption of innocence is as much about a reasoning process as it is about a stated outcome, why limit it to public statements?
  • More generally, the A-G’s legal advice seems to contradict what I’d see as a straightforward principle of interpreting a rights statute that is both hedged by a reasonable limits provision and doesn’t disturb parliamentary sovereignty: read the rights broadly. The only reason I can see for the A-G to consistently make such arguments (including repeated narrow readings of the Charter’s transitional effect) is because the A-G doesn’t want successful rights claims, at least in the cases he intervenes in. Sadly, the A-G’s miserly arguments not only achieve that end, but have potentially dramatic flow-on effects on the much vaunted behind-the-scenes dialogue, not to mention setting some lousy precedents in the Charter’s bellweather year.
  • I don’t doubt that the A-G’s lawyers see themselves as neutral, but that’s really for others to judge by assessing the pattern of arguments they are making. From where I stand, the A-G’s arguments look a lot like standard government arguments that aim to mitigate the impact of a statute on government interests. It’s fair enough, of course, for the government to make such arguments, but it certainly undermines the case for Charter s. 35. If the A-G wants to keep his claim to neutrality (or whatever), then a good start would be to expose all of his legal arguments to public scrutiny, by posting them online. Has Hulls considered starting a blog on the Charter?

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