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? The Human Rights Law Resource Centre’s latest newsletter, released today, argues that he should have applied the interpretation mandate:

[T]he better view of s 32(1) is that interpretation of a statutory provision compatibly with human rights should be considered in the first instance, rather than only after some ambiguity or prima facie incompatibility has been identified. The Charter seeks to ‘establish a framework for the protection and promotion of human rights in Victoria’. The purpose of s 32 is to establish a requirement that statutory provisions be interpreted in a way that is compatible with human rights. Consistently with these purposes, the Charter-compatible interpretation should now be regarded as ‘ordinary’ and ‘normal’.

I entirely agree with the HRLRC.

But, then, the headline would have been “Rights Charter Puts Insane Killer on the Streets”. And, you’d have to wonder, which Minister would be expressing his disappointment in VCAT and in the drafting of his department’s legislation? And what statutory provisions would be up for hurried loophole-closing reforms? If I was the Charter, I’d be buying a lottery ticket today. And if I was Rob Hulls, I’d be drafting a clear, compelling and firm defence of the Charter now, ready for the inevitable occasion when the Charter places the public in ‘danger’ and the Hun and the Charter have a head-on smash.

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