Taxi driver redux

Sophie Delaney and Vivienne Topp write in today’s Sunday Age on XFJ (the first mention of the case that I’m aware of in the broadsheet):

Not only is this a disturbing example of tabloid-driven law-making, and an undermining of the rule of law, it is also potentially discriminatory. People found not guilty due to mental illness offend because of their illness. An indiscriminate exclusion of such people from employment or participation in society is particularly questionable in the year when Victoria’s Charter of Human Rights and Responsibilities has become fully operational.

It is starting to look like the Charter will inevitably be drawn into this case, despite its near miss in the VCAT judgment.

There are currently three Charter angles:

First, there’s news of an action to overturn the suppression order on XFJ’s name by VCAT:

Ms Kosky’s comments came as the Herald Sun launched legal action to unmask the man, who stabbed his wife to death in a frenzy and whose identity is suppressed by a tribunal order.

It was pointed out to me that, if the Herald Sun was able to use the Charter to reveal XFJ’s identity, then my feared head-on crash may be more of a love-in. Indeed. But it isn’t an especially likely outcome. As the Herald Sun’s owner happens to be a corporation (Herald and Weekly Times), it has no rights. This seems to be the basis on which Channel Nine’s action to get Underbelly unsuppressed came a cropper. It shouldn’t have, of course, as the VCAT suppression order (like King J’s) affects the rights of Melbournians to ‘receive information’, part of their Charter freedom of expression. As well, at a stretch, the Hun can argue that those Melbournians’ right to movement might be harmed by not knowing XFJ’s identity (as some may be deterred from taking taxis.) Even more extreme, they could claim that their rights to security or life are at stake. But that’s a two-edged sword: XFJ’s rights against discrimination, privacy, security and (at a stretch) life (and maybe his family life) are protected by the order. 

Second, there’s Kosky’s promise to appeal against the VCAT judgment:

We will look at every avenue for appeal so I can actually fix that difficulty, so everyone can feel safe when they hop in a cab. That’s what I want to be able to guarantee,” she said.

Presumably, the government will argue that Macnamara misinterpreted the word ‘comfort’ in the Transport Act’s ‘public care objective’ as about upholstery rather than the personal foibles of Melbournian taxi drivers. It’s inevitable that XFJ will resist this argument using the Charter. Macnamara didn’t have to resolve that issue, but the Supreme Court will have to. Perhaps the government will respond with Charter arguments about Melbournians’ rights. But, more likely, the government will just fight XFJ’s Charter claims tooth-and-nail. Charter s. 35 notices will have to be issued, meaning that the Attorney-General and VEOHRC will be invited to the party. Both of course will be there to provide neutral assistance, so maybe the Attorney-General will back XFJ? Anyone want to bet on that one?

Third, there’s the coming legislation. Continue reading

The Charter in passing

After midday on 22nd February 2006, four or so months before the Charter was enacted, Peter Kokkios took a walk through Richmond’s public housing estate, not far from where I live. He was approached by a short skinny man and a tall fat one – that rules me out! – who asked him for a cigarette. When Kokkios said no, the next request was for his $1800(!) Tag Heuer watch, a request backed up by a syringe produced by the skinny guy. After taking a further $50 from Kokkios’s pocket, they ran off, with the taller one shouting ‘Come on Ant!’. Who was this ‘Ant’?

Mr Kokkios recalled that the skinny man had bloodshot and baggy eyes along with bad skin and bad breath. Mr Kokkis recalled that he was about 5 feet 10 inches tall and his hair, which was slicked or combed back, was black. He recalled that the skinny man looked European – Italian or Greek – was clean shaven, had brown eyes, a very long and skinny face and was approximately 20 to 25 years old. He recalled that he was wearing a red top and black ‘parachute’ tracksuit pants and a red T-shirt.

The next day, Kokkios identified Antonio Falcone from a photoboard. Falcone’s alibi wasn’t the best. He said that he went with his mum to the Commonwealth bank on nearby Bridge Road to get some money out, but left empty-handed when it turned out his account was in the red. A computer record showed that his discussion with the bank happened at 11.40AM. The disappointed pair went home. A couple of hours later, Falcone pawned some of Mrs Falcone’s jewelry. He denied having entered the housing estate that or wearing red or black clothing.

At Falcone’s trial for armed robbery, late last year, the deliberating jury had the following question for the trial judge:

If we find that we can place him at the scene, but believe he is not the man with the syringe, can we still find him guilty?

The jury’s question probably arose because of the account of Raglus, another possible eyewitness, who said he saw two men eyeing off a flash car near the housing estate close to midday. The witness also identified Falcone from a photoboard, but said that it was the other taller guy who was wearing red and black. After consulting both counsel, the trial judge responded:

If you find that the accused man wasn’t the one with the syringe, then you must have a reasonable doubt about the identification made by Mr Kokkios as identifying this accused man because he gives no description of Man No. 2 other than broader and bigger than Man No. 1. So if you were to reach this position then you must look at what’s left before you in the case and that’s the evidence of Scott Raglus and what you make of that, the evidence of Mr Trojan the man at the bank and what you make of that, the evidence of Mr Falcone and Detective Senior Constable Roberts and finally what the accused man had to say during his interview with the police. So that’s how I’m going to answer your question and I’ll otherwise ask you to return to the jury room and if there’s anything else that I can assist you with, please let me know

I’m not convinced that this is actually what the jury wanted to know. This account is directed to whether or not the evidence could support a finding that Falcone was the other man. But I suspect that what the jury really wanted to know was whether you could still be guilty of armed robbery even if you weren’t the one carrying the syringe. Because of the doctrine of ‘acting in concert’, the answer is, almost certainly, yes, as the trial judge had earlier directed them. Three days later, the jury convicted Falcone of armed robbery. In R v Falcone [2008] VSC 225, the Court of Appeal overturned Falcone’s conviction and ordered a new trial. The reason was that the Crown’s sole theory presented in the trial was that Falcone was the guy with the syringe. Australia’s common law doesn’t allow a new factual theory to be introduced without the defendant having a chance to respond. So, the trial judge should, instead, have answered ‘no’. 

This mundane, if somewhat depressing, procedural error yielded the following Charter remark from Vickery J, writing the judgment for the court:

The right to a fair trial is an essential safeguard of the liberty of the individual under the law. It finds expression in Article 14 of the International Covenant on Civil and Political Rights 1966 and is reinforced by s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

This is a ‘passing mention’. I complained about this practice back in February, during the (in hindsight) happy era when the Supreme Court’s jurisprudence was characterised by feel-good vagueness, rather than the misreadings and lousy analysis that soon rose to the fore. It is to be distinguished from both the outright sloppiness of approaches like Bongiorno’s and Lasry’s (amongst other reasons, because the Charter wasn’t applicable in Falcone’s case due to Charter s. 49(2)) and also the helpful approach of Neave and Warren (who mentioned the Charter to indicate what difference it may make in the future.) Rather, Vickery’s approach is similar to the dull jurisprudence of the ACT Supreme Court on its HRA, where the Charter is seen as, in some vague and unimportant way, restating the existing law. It’s worth recalling why this is a lousy practice. Continue reading

A near miss for the Charter

Victoria’s landmark human rights statute almost got run down by a taxi today:

TRANSPORT Minister Lynne Kosky says an insane killer’s appeal to drive a taxi was one of her first briefs as transport minister. The minister announced a change in legislation this morning, after the Herald Sun revealed a tribunal decision to grant the man taxi accreditation, despite pleas from Victoria’s Director of Public Transport to ban him from the roads. A furious Ms Kosky slammed a loophole that allowed the killer to drive a cab because his acquittal was based on an insanity plea. “If this man was found guilty he would not be allowed to drive a cab, whether he had been rehabilitated or not,” Ms Kosky told 3AW radio. “If he had been found guilty of manslaughter he wouldn’t be able to drive a cab whether he had been rehabilitated or not. “Because he was found not guilty by reason of mental insanity he’s actually allowed.

You’ve got to hand it to those Hun copy writers. ‘Insane killer’ is a masterpiece of accuracy without precision. 

This is, of course, the case I covered three days ago. It’s rare for me to be ahead of the Hun. But, fortunately, the events didn’t fit the scenario I painted a couple of weeks back:

[T]he Charter will only come under threat if it becomes a political football – in other words, if something jolts the public from its present mood of indifference and ignorance.

That’s because Macnamara didn’t apply the Charter (or at least said he didn’t), though he certainly said that what he decided was compatible with the Charter, at least leaving open the possibility that alternative approaches wouldn’t be.

VCAT and Macnamara were the subject of the usual diatribes from the Hun’s readers (some of whom weirdly blamed Hulls too) and some not especially veiled criticism from Minister Kosky:

“I don’t want to comment on VCAT how they’ve made this decision. But I’m really disappointed because the intent of the legislation is very clear. “It is about making sure that customers feel safe when they’re in a cab.” Ms Kosky said she had worked tirelessly to clean up the taxi industry and was incredibly upset a decision was taken that may have jeopardised passenegers. “It is about the perception of safety in our cabs,” she said. “Cab drivers are often alone with individuals in the cabs. “People who drive cabs have a special responsibility and I’ve got a responsibility to give that certainty to the public that they can feel safe every time they pop into a cab.”

That’s a specific criticism of Macnamara’s interpretation of the word ‘comfort’ in s164 of the Transport Act. He didn’t use the interpretation mandate to reach that interpretation, but only because he felt it wasn’t necessary. (His view – correct, in mine – is that ‘comfort’ actually referred to upholstery and the like. No smelly taxi drivers!)

Kosky’s hasty announcement of legislation reforming the ‘loophole’ in the Transport Act that allowed XFJ to fully escape the scheme for limiting the registration of offenders seems like exactly the sort of ‘tabloid-to-statute-book’ legislation that is commonplace in NSW. Fortunately, it seems that the legislation has been long in the planning and, for that matter, it makes perfect sense to close this particular loophole (which caught people found insane after 1997 but not before.) But that change won’t keep XFJ out of the taxi drivers’ seat. It seems obvious that Macnamara would have applied this provision if necessary, which allows all killers, even the super-scary non-insane ones, to clean up drunken passengers’ vomit with VCAT’s permission:

169N(1) A person- (a) whose application for the issue or renewal of a driver accreditation is refused on a ground set out in section 169(2)(b) or (c); or (b) whose driver accreditation is cancelled under section 169E- may apply to VCAT for an order that the Director issue, renew or reinstate the driver accreditation (as the case may be).

(2) On an application under subsection (1) VCAT may by order direct the Director to- (a) issue a driver accreditation to the applicant; or (b) renew the driver accreditation of the applicant; or (c) reinstate the driver accreditation of the applicant.

(3) VCAT must not make an order under subsection (2) to issue, renew or reinstate an accreditation unless- (a) VCAT is satisfied of the matters set out in section 169(1)(b); and (b) the applicant has demonstrated that the issue, renewal or reinstatement is appropriate having regard to the public care objective.

Will Kosky be repealing 169N too? And will she be redefining ‘comfort’ in s164 to expressly include the feelings of taxi passengers (including prejudices against ‘insane killers’)?

The really  interesting question is: what statutory reforms would have been on the agenda if Macnamara had relied on the Charter for his interpretation of ‘conduct’, or for his view that the decision needed to be made in XFJ’s failure and without regard to the unfortunate prejudices of Melbournians? Continue reading

The Supreme Court vs the Charter

Ever since Bongiorno J brought down his decision in Gray v DPP [2008] VSC 4, applying the Charter for the first time, I’ve been hanging out for the Supreme Court to consider the question again. Back then, I was deeply unimpressed with Bongiorno’s analysis. It appeared to ignore significant elements of the operative provisions of the Charter. In that respect, it was a sign of things to come. Not reading the Charter has been the hallmark of Charter cases this year.  To my surprise, the issue of bail did not speedily return to the Supreme Court or the Court of Appeal. Newspaper reports revealed that Gray was applied in two later cases in the magistrates court. And then, nothing (published.) More recently, the VGSO seminar and an annual report revealed, with no apparent embarassment, that the magistrates courts simply stopped applying Gray. If true, that’s a surprising approach to precedent and sends a dire message about the significance of Charter precedents, even flawed ones.

Today, over ten months after Gray, the case has, at last, returned to the Supreme Court. In one respect, that’s an exciting development: the first time that the Supreme Court has been asked to apply an earlier Charter judgment setting out rights and an operative response. (The only other Charter judgment that’s been cited in the Supreme Court is R v Williams [2007] VSC 2, but that’s just an authority for not applying the Charter.) Alas, in other respects, Re Dickson [2008] VSC 516, is an appalling development, responding to Bongirono’s non-analysis of the Charter with some opposing non-analysis. The Victorian judiciary’s complete inability to do the slightest justice to a short, important statute is stunning, depressing and the entrenched norm.

George Dickson is, it seems, an even less appealing Charter rights claimant than the Charter’s first ever beneficiary, Kelly Gray:

Mr Dickson is charged with 25 counts of armed robbery and 4 counts of attempted armed robbery alleged to have been committed between August and November 2006. The offences apparently all involve armed robberies or attempted armed robberies on 24 hour convenience stores. These are serious offences involving a disguised offender using a knife. The offences involved the removal of, in some cases, tens of dollars and in other cases several hundreds of dollars. Mr Dickson has prior convictions for armed robbery in Victoria and Queensland….

On 3 April 2008 the applicant was sentenced in the County Court of Victoria for obtaining property by deception to 180 days’ imprisonment. On 23 April 2008, the parole on which he had been released in relation to earlier offences was cancelled. He has remained in custody and, as I understand it, has been serving pre-existing sentences and breached parole for a significant portion of the time since then. I am told that even if he were granted bail in this Court, he would not necessarily be released unless he was granted parole. It is by no means clear that would occur either.

But he has a number of things in his favour. First, he was charged on 20th March 2007, bringing him within the Charter’s stupid transitional provision. Second, the relevant bail provision at issue is the same one as was at issue in Gray (another alleged armed robber):

4(4) Where the accused person is charged-… (c) with an… offence in the course of committing which the accused person… is alleged to have used or threatened to use a firearm, offensive weapon, or explosive… the court shall refuse bail unless the accused person shows cause why his detention in custody is not justified

Third, thanks to the Crown’s decision to lead extensive similar fact evidence at his trial (thus blowing out the expected length of the hearing to three months and requiring a rescheduling), he will spend a minimum of two years and three months in prison awaiting his trial. Indeed, he has already spent a year-and-a-half, engaging the second and third limbs of this interesting right:

21(5) A person who is arrested or detained on a criminal charge- (a) must be promptly brought before a court; and (b) has the right to be brought to trial without unreasonable delay; and (c) must be released if paragraph (a) or (b) is not complied with.

Justice Lex Lasry had this to say about the question of whether or not the ‘delay’ was ‘unreasonable’:

The phrase “unreasonable delay” is not otherwise defined and nor would one expect to be. It must be regarded as descriptive given the particular circumstances. The section also appears to imply that for a delay to be “unreasonable” it would have occurred for reasons not attributable to the fault of the applicant. It was submitted on behalf of the applicant in this case that a total delay of two years and three months is unreasonable. That would be a difficult proposition to reject.

Who knows why the section ‘appears to imply’ that the delay musn’t be attributable to the applicant? Does it say that somewhere? But, anyway, it’s accepted that, in this case, the delay is attributable to the Crown (in belatedly seeking to adduce reams of similar fact evidence) and, perhaps, the County Court, which is notoriously suffering considerable delays. Anyway, Lasry’s finding that 21(5)(b) is satisfied is unequivocal. So, that means that Dickson has the right ‘to be released’. Right?

But, suddenly, Lasry decides to stop reading the Charter and instead goes about the task of distinguish Gray. Not, mind you, on the basis that Gray ignores the Charter’s operative provisions, but rather becuse the facts are different:

It is not submitted on behalf of the applicant before me that he will spend more time in custody than he is likely to serve upon a sentence particularly bearing in mind that his present custody involves revoked parole and is not simply pre-sentence detention. In Gray his Honour further concluded that the applicant was not a flight risk and there was little tangible evidence to suggest that the applicant would interfere with witnesses. Ultimately, his Honour concluded that the applicant had established that his continued incarceration was not justified and he was released on bail. What his Honour’s ruling demonstrates is that the Charter has a significant role to play in emphasising the importance of particular rights, but when it comes to the right to be brought to trial without unreasonable delay, that right remains to be considered within the appropriate or relevant provisions of the Bail Act.  I note at this point that in my opinion the circumstances confronting his Honour in Gray are quite different from those before me. First, in this case given the particular circumstances a significant amount of the applicant’s time in custody might not be reckoned as pre-sentence detention. Second, given Mr Dickson’s mental condition and its apparent connection with his offending, there is a risk that he might commit further offences if he were released. It is put by Mr Atkinson that there is also a risk of interference with witnesses although Mr Atkinson accepts that such a risk is more circumstantial than actual.

These are, indeed, all important differences. But they don’t change the fact that the terms of Charter s. 21(5) are engaged, including Charter s. 21(5)(c), one of the few uneqivocal rights to a remedy that appear in the Charter. Gray, by contrast, didn’t engage Charter s. 21(5)(c), as he had not, at the point of his Supreme Court application, been delayed too long. Instead, the only right he had engaged at that point was Charter s. 25(2)(c), which contains no remedy provision.

So, instead, the question is one of operative provisions. Here’s the argument made by Dickson’s counsel;

Mr Traczyk submitted on behalf of the applicant that the enactment of the Charter has brought about a significant change in the law in Victoria. Prior to the enactment of the Charter, it was submitted, there was no legal right to a speedy trial in Victoria. Mr Traczyk however submitted that s 21(5) of the Charter has clearly created a legal right to be brought to trial without unreasonable delay. It was further submitted that the Charter requires that the provisions of the Bail Act must be interpreted in such a way as to give full effect to this right. Indeed it was initially submitted, on behalf of the applicant, that where a person has been held in custody for a period of time which a court determines is unreasonable, that person should be released on bail, regardless of any other circumstances.

Now, that’s a far from perfect argument, as it appears to treat Charter rights as operative on their own and fails to note the caveats to the interpretation mandate. But, on the other hand, it clearly identifies the relevant operational provision being relied upon. Later, Traczyk makes a less extreme submission:

Mr Traczyk further submitted that even where an unacceptable risk has been shown, the overriding question in determining whether an individual should be released on bail in cases where delay is cited as exceptional circumstances or good cause is whether release on bail is required to give full effect to that individual’s right to be brought to trial without unreasonable delay.

That doesn’t seem to bad an argument. Moreover, Traczyk had a plan to manage any risk posed by Dickson:

It was submitted by Mr Traczyk that if I were inclined to release Mr Dickson on bail I could impose a condition in general terms that he not be released unless and until he was granted parole and that if that occurred, that within 48 hours of release, he report to the North Western Mental Hospital and from then on obey the lawful directions given to him at that institution. Mr Traczyk provided to the Court, on the applicant’s behalf, a letter addressed to the solicitors for the applicant and signed by Ms Elizabeth M. Williams, Psychiatric Nurse at North Western Mental Health. The letter, which is dated 21 November 2008, indicates that should Mr Dickson be granted bail, the clinic at Northern Hospital can offer a Case Management Intake Assessment to the applicant on Friday, 28 November 2008.

A potentially neat case-specific solution to s4(2)(d)’s ban on releasing people who pose an ‘unacceptable risk’. Indeed, there also seems to be an equal protection argument based on Dickson’s diagnosis of schizophrenia, which Lasry was concerned wouldn’t be effectively treated in jail. 

So, isn’t it time, at long last, for a Supreme Court judge to give serious consideration to the meaning and effect of Charter s. 32(1) Alas, no:

I cannot conclude that the Charter requires that the Bail Act be interpreted to allow for an accused to be released on bail, regardless of an established unacceptable risk, whether it be a risk of flight, re-offending, interference with witnesses or otherwise. Section 1(2) of the Charter provides, in relevant part: The main purpose of this Charter is to protect and promote human rights by— (a) setting out the human rights that Parliament specifically seeks to protect and promote; and (b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; …  Section 1(2)(b) of the Charter requires that other statutory provisions be interpreted “so far as is possible” compatibly with human rights. The provisions of the Bail Act contain no reference to delay or to a right to a speedy trial. In this particular case, the Bail Act requires me to refuse bail unless the applicant shows cause why his detention in custody is not justified.

Charter s. 1???? What freaking planet is Lasry from? That’s the Charter’s purpose provision. It doesn’t have any operative effect. Here’s what the relevant operative provision says:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

Now, granted, it so happens that Charter ss. 1(2)(b) and 32(1) are in pretty much the same terms. But whereas the former is an aspiration, the latter is a legal command. There’s a ‘must’. There’s also a clear reference to relevant comparative law. And there’s also a requirement that any interpretation be consistent with a provision’s purpose. Relying on Charter s. 1 is the kind of thing a (poor) undergraduate student (or Mirko Bagaric) would do.

Now, it’s clear that Lasry thought that the suggested interpretation went beyond what was ‘possible’ under the Bail Act, something Bongiorno failed to consider. Good for him.

But: (1) Lasry doesn’t explain why the Bail Act can’t possibly be interpreted in that way. What words stand in the way? And why? Overseas judgments have made it clear that the natural or settled meaning of words is no barrier. Some go so far as saying that the words themselves are no barrier. Lasry seems to see things otherwise. But why? (2) While, I certainly think it’s arguable that s4(2)(d), which bars bail for people who are an ‘unacceptable risk’, is pretty hard to get around, it’s less clear that the wording of s4(4)(c) is similarly unmalleable, so surely Lasry had to consider whether or not those words needed to be re-interpreted to permit release in a case of unreasonable delay? (3) Lasry neglects any consideration of the purpose of the Bail Act too, which might be a more sound reason to reject the argument put by Gray. (4) Also, if Lasry is right that the Bail Act ‘cannot be interpreted consistently with human rights’ then shouldn’t Lasry be mulling over the need for a declaration of inconsistent interpretation, which would of course require both notice and a consideration of Charter s. 7(2)? (5) I know this doesn’t seem to have been argued, but isn’t there also a conduct mandate issue too, in relation to the OPP and, perhaps, the County Court’s registry?This argument would face some hefty Charter s. 38(2) & 39(1) hurdles, of course, but the remedy of habeus corpus could be apt. (The fact that Dickson was confined on other charges would, of course, seem to be a barrier to them.) Alternatively, there’s the remedy of a stay, which seems to be the (controversial) Canadian approach.

[EDIT: And, (6) When I think about it, the specific reason for Dickson’s delayed trial – the Crown’s apparently belated decision to lead lots of similar fact evidence and the County Court’s willingness to adjourn to accomodate that – seems to carry lots of opportunities for a remedy for Dickson, although it may be too late now. Wouldn’t a better response have been to tell the Crown that if it wanted to move the trial date, it’d have to accept the bail of Dickson?]

Eh, why even bother listing all these things? They all assume that judges have even the slighest interest in what the Charter actually says. Continue reading

The Charter vs taxi passengers

taxidriverOctober 31st is the date I pronounced the biggest Charter day EVER, given the thrilling combination of two passing mentions in the Court of Appeal and the revelation on Stateline of the (then) most significant Charter challenge to date. Now, thanks to the slow drip feed of cases onto Austlii, I’ve discovered that that Halloween was even bigger still.

XFJ v Director of Public Transport [2008] VCAT 2303 ponders this question:

[W]ould you want to ride with a man who stabbed his wife to death in 1990, never mind the circumstances? Would you want one of your children to ride in those circumstances?

If not, then you might want to skip catching taxis in Melbourne.

As diligent readers of this blog know, the Charter has already been raised by an insurance fraudster wanting to ride a bus, in the face of the Transport Act 1983‘s licensing scheme. Peter Swain’s insurance fraud was a ‘category two’ offence, meaning that there was a presumption against him ever having a public transport licence. But serious violent offenders face a much tougher burden:

169(2) The Director must not issue or renew a driver accreditation if the Director is aware that the applicant-… (b) has been found guilty of a category 1 offence…

VCAT can allow such persons, including murderers, to drive, although perhaps it’d take a brave VCAT member to do so. XFJ, though, managed to slip out of the regime for managing the licensing of criminals altogether, despite these uncontested facts:

XFJ came to Australia in 1989 as a refugee from the upheavals in Ethiopia. He left Ethiopia, travelling through Sudan to Egypt. He says he suffered many hardships in the course of his flight from Ethiopia, including imprisonment and torture in Egypt. In 1990, XFJ, who is now aged 52 years, was in the grip of a serious depressive episode. He was contemplating suicide. Apparently he carried a piece of rope around with him. In the event however, the violent action which he took first was not directed against himself, but against his estranged wife. He killed her with repeated knife blows. Thereafter, he attempted to commit suicide himself by hanging, but the attempt failed when the limb on the tree which he sought to hang himself from broke.

XFJ’s jury found him not guilty of murder on the ground of insanity. He was detained at the Governor’s pleasure and eventually released into the community in 1998 and from all constraints in 2003. The Transport Act has a provision deeming such persons to be offenders for the purpose of the licensing scheme, leading the Director of Public Transport to initially deny him a licence. However, a closer inspection of the provision revealed that it didn’t cover people like XFJ who were dealt with under the pre-1997 insanity regime. Instead, XFJ’s application for a taxi licence had to be dealt with just like most people’s:

169(1) …[T]he Director may grant the application if the Director is satisfied- (a) that the issuing of accreditation is appropriate having regard to the public care objective; and (b) that the applicant- (i) is technically competent and sufficiently fit and healthy to be able to provide the service; and (ii) is suitable in other respects to provide the service; and (c) that the applicant has complied with the application requirements under this Division.

In June this year, safely on the right side of Charter s. 49(3) ,the then Director, Jim Betts, made his decision: to refuse XFJ’s application, citing the public care objective and XFJ’s suitability ‘in other respects’ and, thus, dashing XFJ’s hopes for a flexible job to assist him in caring for his 19-month old, who alas has leukemia.

Appealing to VCAT as his last hope, XFJ raised the Charter. VCAT Deputy President (and Charter virgin) Michael Macnamara dealt with the Charter argument as follows:

I should note that Mr Stanton, on behalf of XFJ, impressed me with a number of arguments arising under the Charter of Human Rights and Responsibilities Act 2006. It has not been denied that, having regard to the timing relative to the present proceeding, that the Charter applies. Again, without rehearsing the arguments which were put by Mr Stanton, and the counterarguments put by Ms McKenzie, it is sufficient, so far as the Charter is concerned, for me to note that Section 32(1) of the Charter Act provides:

(1) So far as it is possible to do so, consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to human rights may be considered in interpreting a statutory provision.

In my view, the approach which I am about to take, relative to the Transport Act 1983, is in accordance with those provisions, and no issue arises of any inconsistency between the Transport Act and the Charter of Human Rights and Responsibilities Act 2006. Hence, even although issues relative to the Charter have been raised and argued before me, it is, as far as I can see, unnecessary for me to consider giving notice to, or inviting argument from, either the Attorney General or the Human Rights Commission.

Hey, no fair! I want to hear what those impressive Charter arguments (and counterarguments) are. Continue reading

The Charter vs Parliament

nzeditorialOne of the core principles of the Charter is that it doesn’t affect Parliament’s powers. Those powers are preserved by the limited nature of the Charter’s operative provisions (limited to interpretation, and excluding the non-administrative capacities of parliament from the oblgiations mandate.) They are also made clear in three express savings provisions:

29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

32(3) This section does not affect the validity of- (a) an Act or provision of an Act that is incompatible with a human right; or (b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

But could the Charter still be raised in court in an action against Parliament?

Petra Butler recently gave a talk at Melbourne Law School about just such an action in New Zealand. The recently booted-out Labour government caused a lot of controversy by passing a new Electoral Finance Act late last year. (See the pictured front-page editorial in the NZ Herald, featuring a gagged man, which was later the subject of a successful press council complaint.) An article in the latest issue of the Public Law Review outlines a number of concerns about the statute, notably its quite extreme limits on third-party advertising. Indeed, incoming PM Key has earlier announced that repealing the Act will be his first move upon his election. For NZBoRA groupies, a further controversy is how the NZ Attorney-General Michael Cullen fulfilled the following obligation under the NZBoRA:

7 Where any Bill is introduced into the House of Representatives, the Attorney-General shall,— (a) In the case of a Government Bill, on the introduction of that Bill; or (b) In any other case, as soon as practicable after the introduction of the Bill,— bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

Cullent didn’t report. In accordance with the usual (and excellent) NZ practice, the legal advice he received on the issue is published, complete with the names of the advising lawyers: Val Sim, Crown Counsel and (a name now familiar to Charter groupies) Joanna Davidson, as peer reviewer. The advice described the freedom of expression views as ‘finely balanced’ but deferred to Parliament’s ‘wide margin of appreciation’. Andrew Geddis, in the PLR, casts this ‘vet’ as ‘overly deferential to the government’s policy preferences’. 

Somewhat astonishingly, an action was commenced in New Zealand’s High Court seeking a declaration that the Attorney-General was in breach of s7 of NZBoRA. The action was commenced before the Bill was passed, but the High Court declined the request for urgency. By the time the action was heard, the Bill had passed, but declarations were sought on the basis that a declaration should be made about the past breach and that s7 required the Attorney-General to recommend the re-introduction of the bill accompanied by an appropriate s7 statement. The Attorney-General responded with a request to strike out the application as an interference with parliament and as an attempt to seek an unavailable declaration remedy on a moot point. In Boscawen v Attorney-General [2008] NZHC 949, a judge of the High Court agreed to the striking out. Denis Clifford’s key finding was that:

when the Attorney-General responds to his duty under s 7 of NZBORA and determines ­ as the case may be ­ that there are or there are not inconsistencies between a bill and the rights and freedoms contained in NZBORA, and therefore determines whether to draw or not draw such inconsistencies to the attention of the House, the Attorney-General performs a function which falls within the proceedings of Parliament. I think, therefore, that questions of the privilege, whether described in terms of non-interference in the internal proceedings of Parliament, or as questions of Article 9 [of the Bill of Rights 1689] privilege …  mean that judicial review is not available.

According to Butler, the striking out has been appealed to the NZCA, but it would be quite a surprise if it reaches a different conclusion.

The general principles cited in Boscawen are also part of Victorian law. So, would they apply to the equivalent provision of the Charter?:

28(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(3) A statement of compatibility must state- (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

As is well known, Charter s. 28 differs from NZBoRA s7. In NZ, statements must only be made if the A-G thinks a bill is incompatible. By contrast, the Charter requires a statement for every bill. This strikes me as a potentially significant difference, because the making of a statement, as opposed to its content, is not a question of legal judgment about the human rights content of a bill. Continue reading

The rights of the woman without a face

The Age today caught Melbournians up with a crime mystery that’s been circulating for a year now. It concerns an alleged  serial killer, linked to dozens of crimes, big and small, by her DNA. Sometimes called the “Phantom of Heilbronn”, the Age uses her other nickname:

On New Year’s Day in 2003 at Dietzenbach, near Frankfurt, an office was broken into and a coffee tin of loose change stolen. “It was a professional job,” said Guenter Horn, another high-profile prosecutor liaising with police. “She left no fingerprints. But she did leave a scraping of skin, and that was enough to pin the job on (the Woman Without a Face).” In all there have been 30 break-ins and hold-ups that have yielded her DNA identity, in addition to the murders.

On May 2005, in the city of Worms, a local gypsy turned a gun on his brother. Police later found the phantom’s DNA on one of the bullets. Police went on television in April 2005 with an appeal to the public for tips, but to no avail. Then came the killing of officer Michele Kiesewetter. She and a colleague who has never been named were assigned to an undercover drugs squad in Heilbronn when at least two people climbed into the back of the car and shot them both in the head at point-blank range. Ms Kiesewetter died instantly, her partner lingered on in a coma for months, before the bullet lodged behind his right eye was removed. He remembers nothing of the incident. Nothing was taken from them save their handcuffs. Chief Superintendent Horst Haug of Special Commission Parkplatz said: “It was brutal, apparently random and with no apparent motive. What are we dealing with here? And who is the accomplice?”

Police revealed that other DNA traces were found at crime scenes indicating she sometimes operated in tandem with another. But no two crime scenes yielded the same DNA, indicating she picks up and discards helpers with the same casual abandon with which she kills. Kurt Kletzer, a noted Viennese psychiatrist, says the Woman Without a Face is “intriguing and disturbing” in equal measure.

To me, the case has an intriguing and disturbing resemblance to a hypothetical I once raised with a Victorian Parliamentary Committee on 2003, back in my earlier incarnation as a researcher on mass DNA screenings. As it happens, Germany is the world’s leader in ginormous mass DNA screenings, some literally of 100,000 and many in the tens of thousands. Soko Parkplatz is a relatively small one, with only a couple of thousand samples taken from Germany women to date. The thousands of samples are either from Germany’s DNA database of convicted offenders or a so-called voluntary mass screening of some other usual suspects. But that screening assumes that the Woman Without a Face is a criminal! The real woman may be a lot closer than the Germany police seem to think.

Right before I testified, a representative from Victoria Police was asked what he thought of the idea of creating a database of police DNA for elimination purposes. DI Cowlishaw of Victoria Police’ DNA implementation unit said:

The database has been set up for the purpose of finding out who has committed crimes and putting criminals on it. Police officers have very strict rules as to who they can get a DNA sample from. What a lot of police officers say, and have objection to, is that they have committed no offence themselves, apart from being a police officer, and they have been asked to go on a database, where people who have committed crimes such as thefts, theft of motor cars and those sorts of offences, which by community standards are considered to be serious offences, do not have to go on a database. A lot of them object on those grounds.

These are, of course, all claims that would now been framed in terms of the Charter. Indeed, the government has taken a broad and enlightened view of the scope of all sorts of criminal process rights, but only when they apply to police officers. Cowlishaw went on to make a dubious claim that Victoria’s current legislation doesn’t even permit police officers (as opposed to ‘third party volunteers’) from being asked for their DNA.

So, rights vary depending on whether the volunteer is a second party or a third party. But which party is the woman without a face? Continue reading