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.

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