October 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  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. What a waste. And, it seems, a misreading of Charter s. 35:
35(1) A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if- (a) in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) in any case, a question is referred to the Supreme Court under section 33.
VCAT is free from the dreaded notice requirement. Interesting, though, that Macnamara doesn’t seem to see the notice provision as the walk-in-the-park that Pamela Tate claimed it was at the Melbourne Law School rights conference. Indeed, he seems to see it as a reason to shy away from applying the Charter unless he really has to. What a great provision! [EDIT: Thanks to XFJ’s lawyer for pointing out that Macnamara was actually referring to Charter s 36(3). That being said, there’s still no need for notice in VCAT, although VCAT could contemplate referring a matter to the SC under Charter s. 33. Such a referral, much less a declaration, is probably the last thing XFJ needed, as it would slow down the matter by half a year or more. Given the ultimate discretion left to VCAT in all cases, a declaration would be pretty unlikely.]
Anyway, all we know is that the arguments had to do with the interpretation mandate. (Given that the good Director is a public authority, I would’ve thought the conduct mandate would be applicable too, though perhaps it’d be much-of-a-muchness.) The interpretation issue is nothing less than the meaning of the core provision of the public transport licensing scheme, the ‘public care objective’:
164(1) The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services- (a) be provided- (i) with safety; and (ii) with comfort, amenity and convenience- to persons using the services and to other persons, particularly children and other vulnerable persons; and (b) be carried out in a manner that is not fraudulent or dishonest. Note Other vulnerable persons include elderly and disabled persons.
Macnamara, assisted by opinions from a psychiatrist treating XFJ and another one who the Director used for assessment that were ‘about as favourable as in the circumstances one would expect’, held that there was ‘no serious safety issue’. But that left Betts’s primary argument:
The Director’s counsel, Ms McKenzie, draws attention to dictionary meanings of the word “comfort”, which include a reference to ease of mind. She says that passengers or potential passengers would not have ease of mind if they were being driven by a person in the situation and with the history of XFJ.
Alas, the lack of easy-goingness of Victorians about XFJ’s background emerged in his last job at a hotel, after members of the Ethiopian community filled in XFJ’s co-workers on the 1990 incident, who drove him out of the job. (Driving a taxi would carry the benefit of having not having to share a workplace.)
Macnamara disagreed with the Director’s statutory interpretation:
It seems to me doubtful that the word “comfort”, when used in Section 164(1) is intended to be directed to the concept of ease of mind, as distinct from ease of body, relative to proper upholstery, proper ventilation in taxicabs, proper cooling and heating and so forth. I concede, however, that it is arguable that ease of mind is included in the concept of the word “comfort”. In my view, Parliament must, in establishing such a criterion, and if it has established it, be treated as being concerned with the ease of mind of reasonable persons, as distinct from simply wild prejudice. It would not be proper, for instance, to deny accreditation to a gay taxi driver, because some people in the community, perhaps a large number, feel uncomfortable with the concept of homosexuality, or with homosexuals.
Nor would it be appropriate to deny accreditation to an AIDS sufferer who was in remission with antiretroviral medication because some members of the community would feel uncomfortable, and not at ease in their minds, with such a person in the same car as themselves. In broad terms, I accept that the ordinary man in the street would probably say, “I would prefer not to have as a taxi driver somebody who has killed in whatever circumstances, except perhaps in self defence or as a solider.” On the other hand, the decision that I have to make, and I believe the decision the Director had to make, must be based upon more than mere prejudice, and here the psychiatric evidence, and the apparently blameless life that XFJ has lived since 1990 is the more important and should, for a reasonable person, outweigh any unease of mind which his history would raise for them.
So, XFJ is free to do one of Melbourne’s worst jobs. Good luck to him, and his toddler.
But I’m left wondering what those impressive Charter arguments and counterarguments were. In particular, what rights were raised by XFJ? Some possibilities:
- Charter s. 8 (equality): Macnamara’s arguments revolve around traditional discrimination concerns. But, given Charter s. 8’s unfortunate restriction to discrimination as defined by the Equal Opportunity Act, what attributes were raised by XFJ? Being a criminal, or a released criminal isn’t an attribute. All that really comes to mind for me is impairment, in the form of the mental condition that led XFJ to kill his wife. I guess the argument would be that accomodating the prejudices of taxi passengers (if that’s what they are) in relation to such illnesses would be to deny XFJ ‘equal and effective protection against discrimination’…
- Charter s. 25(1) (presumption of innocence): Perhaps, equating XFJ (who was found ‘not guilty’) with a convicted murder would be a breach of the presumption? I’d be surprised if people found ‘not guilty by reason of insanity’ get that benefit. And there’s the dreaded Sabet restriction to overcome too…
- Charter s. 26 (double punishment): Swain tried and failed to portray the licensing scheme itself as double punishment, given its protective purpose. But, perhaps (perhaps!) XFJ could have more luck with that argument where the issue is the (arguably punitive) attitudes of taxi passengers..
[EDIT: Thanks to XFJs lawyer for forwarding me XFJ’s written submissions, which were indeed impressive. Charter s.8, and specifically impariemnt, was indeed the right relied upon. And XFJ not only relied on the intepretation mandate, but also the conduct mandate, s6(2)(b) and Bell’s Charter-free international law approach.]
Coming up to counter-arguments in relation to customer prejudice can be tricky. Charter s. 7(2) doesn’t seem quite right, given its emphasis on the values of the Charter. But, perhaps there could be a Charter s. 12 (Freedom of movement) counter-argument, given the importance of taxis to some people, who might become too scared to use them. But, I guess, what they don’t know won’t hurt them. Given that, the appearance of the judgment on VCAT is kinda interesting. Are those XFJ’s real initials? Even if they aren’t, the interminable small-talk in taxis often reveals all sorts of details. Maybe this VCAT judgment is another one that won’t remain on for Austlii for long!