Lost in transition

On October 3rd, Carolyn Evans spoke at the annual ‘Protecting Human Rights’ conference about the Charter litigation to date and pointed out Victorian judges’ and tribunal members’ troubling inability to get a simple date right when reading Charter s. 49(2), a matter that this blog has given a lot of attention. The day before, the Charter’s appalling transitional provision was being debated in the Supreme Court, in a hearing enhanced by the Attorney-General’s intervention. And, just one week later, another misreading for Evans’s list, in Devine & Legg v VCAT [2008] VSC 410.

Readers of this blog will know Charter s. 49(2) by heart:

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

And here’s what Justice David Beach had to say about the application of the Charter:

The Charter has no direct application in this case. The VCAT proceeding was commenced and concluded prior to the operative commencement date of Division 3 of Part 3 of the Charter. This proposition is not contested by the plaintiffs. The plaintiffs now rely on the decisions of Tomasevic v Travaglini and DPP v TY (No.3) as authority for the propositions that the rights in the Charter “apply in substance” prior to the Charter’s commencement date by “operation of international law on Victorian law directly”. Whilst the Attorney General contends that this is an over-simplification of the principles expressed by Bell J in Tomasevic, the Attorney General accepts that the body of international covenants from which the relevant rights in the Charter are drawn may be used as an interpretive aid and, in appropriate cases, as a relevant consideration in the exercise of judicial powers and discretions. Further, there is no issue between the parties that the common law has long recognised a right to a fair trial.

This is, for what it’s worth, a new wrinkle in the sad history of misreadings of Charter s. 49(2): instead of simply wrongly assuming that Part 2 commenced the same time as Divisions 3 and 4 of Part 3, Beach just replaces the words ‘Part 2′ with “Division 3 of Part 3’. The result is the same: the reach of the Charter’s appalling transitional provision for proceedings is extended by a year. It’s true that, unfortunately, Devine & Legg (or, more precisely, Victoria Legal Aid) apparently joined in the error. But why on earth didn’t Beach listen to the Attorney-General, who intervened as of right in the proceedings under Charter s. 35 just so the Supreme Court wouldn’t be misled by bad lawyering?

Now, some people will say that Beach J still got the right result. After all, didn’t the VCAT proceedings over racial vilification commence in 2005? Well, they did, but that wasn’t the matter before Beach. Devine & Legg weren’t seeking judicial review of Coghlan’s finding in July 2007 that their website breached s8 of the Racial and Religious Tolerance Act. Rather, they were seeking judicial review of Harbison’s ruling in November 2007 that found that they had committed contempt of VCAT and had to go to prison for nine months. The contempt proceeding commenced sometime between July and October 2007, well outside the scope of Charter s. 49(2). Perhaps there’s an argument that the contempt proceeding should be treated as part of the original vilification proceeding, as the parties and even the file number were the same. But there are some important counter-arguments: the contempt proceedings were criminal, not civil; were (and had to be) presided over by a different (judicial) member of VCAT; and commenced after the previous proceedings had concluded.

The VCAT file number is hardly indicative of much. The very first sentence of Harbison’s judgment  says:

This is an application by Applicants in this proceeding who were Complainants in a proceeding before this Tribunal for relief under the Racial and Religious Tolerance Act which was referred to this Tribunal from the Equal Opportunity Commission in around May of 2005 and which was later formulated in Particulars of Complaint which were filed on 30 September 2005.

And costs were ordered in the ‘contempt proceeding‘. Moreover, in other VCAT contempt proceedings, new file numbers were issued for every subsequent contempt. If there’s any point to the words ‘and concluded’ in Charter s. 49(2), it’s surely to indicate that further matters that take place after a proceeding has concluded are outside of its scope. Indeed, the UK courts held that their transitional provision, which applied the UKHRA to certain past proceedings, did not cover subsequent appeals.  As a matter of policy, what sense does it make to exclude the Charter from contempt proceedings (which can happen any time in the future), just because the original proceedings commenced before 1/1/7? (But that assumes that there’s any sense to Charter s. 49(2), and especially it’s application to criminal proceedings.) At the very least, the meaning of the word ‘proceedings’ should have been discussed in detail by Beach. His error in reading the easy bit of the section denied Devine and Legg a ruling on the hard part. Exactly the same thing happened in earlier proceedings, including Ragg, another of Bell J’s implied rights judgments that Beach – and presumably the lawyers before him – failed to mention.

Apologists for illiterate and innumerate judges may also argue that Beach was really relying on the miserly and dubious argument that the Charter’s commencement date provision somehow contains its own transitional provision for proceedings that commenced before 1/1/8, the commencement of the Charter’s interpretation and obligations regime. But Beach didn’t cite Charter s. 2. Instead, he cited Charter s. 49(2) and, curiously, Charter s. 6, the Charter’s application provision (which doesn’t mention dates at all.) Now, it is true that neither the interpretation nor conduct mandate had commenced in November 2007, when Harbison made her ruling sending Devine and Legg to prison. And Charter s. 49(3), curiously not mentioned by Beach, makes it clear that the conduct mandate can never apply retrospectively. Moreover, even if it had – or Harbison had made her decision this year – it still wouldn’t have applied, as Harbison was not a public authority. (If one thing is clear about Charter s. 4(1)(j), it’s that it exempts contempt findings by VCAT members, as there’s no way they’re made in an adminstrative capacity. Indeed, they have to be made by a judicial officer.)

But Beach’s error denied Devine and Legg the benefit of two unresolved arguments that may give the Charter some operation in the shadow year of 2007. First, there’s an argument that, as I understand things, is presently being considered by Bell himself in the main Charter mental health case, that the interpretation mandate applies retrospectively, in the sense that anyone doing interpreting after 1/1/8 must reinterpret all statutory provisions compatibly with human rights, even when the statute in question is being applied to matters that occurred before 1/1/8. Here’s my post making that very argument. (It’s possible, I admit, that that argument works better in a statutory appeal or review proceeding, rather than judicial review as in this case.) Why does this argument merit a full discussion before Bell, but no analysis before Beach? Again, it baffles me that Beach failed to listen to the Attorney-General, who surely would have alerted him to the relevance of the proceedings before Bell.

Second, and perhaps more persuasively in this case (and regardless of the Charter s. 2 argument, which only applies to Part 3), there’s the s6(2)(b) argument, which has significant existing support (albeit obiter), in King J’s judgment in R v Williams [2007] VSC 2, which remains the sole non-trivial good judgment to date on the Charter. That this issue seems to be a live one before Beach is suggested by Beach’s citation of both Charter s. 6 and of Williams itself. Now, for those who are new to the biggest single unresolved issue about the Charter, this argument is based on a curiosity of the Charter’s stupid application provision:

6(2) This Charter applies to- (a) the Parliament, to the extent that the Parliament has functions under Divisions 1 and 2 of Part 3; and (b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3; and (c) public authorities, to the extent that they have functions under Division 4 of Part 3.

What’s weird about this provision is the reference to Part 2 in sub-section (b). Part 2 contains the human rights, whereas Part 3 contains the operative provisions, which are supposed to contain the exclusive legal effect of the Charter. So, the reference to Part 2 could mean that some of that Part is self-applying, at least to courts and tribunals. This is important, particularly as a means of overcoming both the later commencement of the key divisions of Part 3 and the unfortunate exemption of courts and tribunals acting in their non-administrative capacities from the Charter’s obligations mandate.

Now, as it happens, I don’t think much of the Charter s. 6(2)(b) argument. But it has a lot of support, both from academics and in a significant precedent from this year in the Mental Health Review Tribunal. It seems to me that this case is the perfect test for this issue. Not only is this one a case that faces both of the difficulties that Charter s. 6(2)(b) may overcome, but the argument of Devine and Legg – that they were denied a fair hearing before Harbison – also squarely raises the argument even on its most conservative reading, one that limits it to just the rights that apply to courts and tribunals. Moreover, as VCAT’s contempt power is purely statutory, it doesn’t seem to raise any of the supposed constitutional objections (involving the uniform common law) that may have applied in a case involving the Supreme Court’s common law contempt powers. So, the short of it is that Beach’s misreading of Charter s. 49(2) denied Devine & Legg an entirely relevant Charter argument. They should appeal.

On the subject of appeals, Beach’s ruling may also mislead Devine & Legg into thinking that they cannot mount a Charter challenge to the VCAT provision that bars them from making an out-of-time appeal against their out-of-presence sentence, discussed last post. Even if they lose on the Charter s. 32 and Charter s. 6(2)(b) points, they could still seek a declaration of inconsistent interpretation about Charter s. 36, which may, at least, get Parliament to retrospectively repeal the bar on out-of-time appeals, thus allowing them to question whether Harbison’s nine-month sentence was correct in their cases. Again, Charter s. 49(2), properly – or even carefully  – read is no bar to that.

This case ought to be a wake-up call to the people who think that Carolyn Evans’s (and my) criticisms of the application of the Charter to dates in courts are just academic pedantry. The misreading of Charter s. 49(2) is the most common event in the Charter to date. While I’m sure no-one on the bench reads this blog, I’m a little surprised that no-one read my article on this very topic in the July Law Institute Journal, and that this constant problem hasn’t become common currency amongst those lawyers with an interest in the Charter. Most of all, I’m surprised that the Victorian judiciary has so much problem reading a statute. It is a matter that should be urgently addressed in both judicial and legal professional education, and (as many current law schools argue) in regular legal education (with its traditional focus on cases, not statutes.)

And, as I’ve indicated repeatedly, this case also shows the inadequacy of the argument that Charter s. 35, the notice provision for the A-G and VEOHRC, is necessary because of the need to ensure that the Supreme and County Courts are properly advised on the law. The A-G did intervene in this case. Indeed, he stayed on even after the Charter argument was dismissed (despite the expiration of the intervention right), because it was important for Devine and Legg’s arguments to have a ‘contradictor’. (That a contradictor was necessary when Devine and Legg’s argument was that there was no contradictor in their contempt proceedings is an absurdity that ought to be sung about by Alanis Morisette.) And, yet, Beach J somehow resolved the Charter issue without any reference either to the correct words of Charter s. 49(2) nor two key issues about the Charter’s application to 2007 matters that are presently the subject of court precedents or debates. Given that, what’s the point of giving notice to the A-G?

As for VEOHRC, the Commission, of course, didn’t intervene. As a number of speakers pointed out at the conference, VEOHRC cannot afford to. But there’s a bigger problem in this case. VEOHRC was itself involved in the original proceeding against Devine & Legg and, indeed, was required by statute to assist Ordo Templi Orientalis in formulating the complaint against them. It is, moreover, a key stakeholder in the Racial and Religious Tolerance Act. Given that, there’s no capacity whatsoever for VEOHRC to provide arguments in support of Devine & Legg’s Charter claim.

In short, it is now crystal clear that, despite Charter s. 35, people who raise arguable Charter claims are wrongly being denied a look-in by Victoria’s courts. Human rights lobby groups should swallow their instinctive defence of the Charter (and, perhaps, their distaste of people like Devine and Legg) and ensure that justice is done in this, and future, cases.

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