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.
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. The content of the legislation is unknown, but the Premier was on the radio about its possible form:
Premier John Brumby said yesterday the Government might be forced to use retrospective legislation to close the loophole. “Ordinarily, a government wouldn’t embrace retrospective legislation, it’s a bad policy principle,” he said. “I’ve got some preliminary (legal) advice but I don’t have full advice yet to see what other avenues are available to the Government to ensure that this person is prevented from driving and I can’t do any more than that at this stage. “It’s a highly unusual case. Nobody foresaw it when the legislation went through the Parliament. “But I can only repeat what the minister said (on Wednesday) and that is, we will use every avenue that is available to government to ensure that this individual can’t drive a cab.”
There’s, of course, nothing to stop the government retrospectively closing the loophole (unless they try to do it for just XFJ, which will invite a Kable challenge.) The Charter certainly doesn’t limit any of Parliament’s powers. But the retrospective operation applicable to a decided case will raise some interesting Charter issues, relating to the right to a fair hearing and, perhaps, the right to property. I can’t help but imagine that the “preliminary (legal) advice” is all about that. Such advice is part of the human rights dialogue. It’ll be interesting, though, to see what end it’s directed to.
Delaney and Topp’s article is, cleverly, aimed not at Kosky or Brumby, but at Hulls. They quote his statements while in opposition on the plight of people acquitted on the grounds of insanity:
Then shadow attorney-general Rob Hulls said: “For far too long in society people with mental illness have been stigmatised. They have been looked upon as second or third-class citizens … Painfully slowly but surely society is now coming to realise that mental illness is not something to be feared but a disability that can and ought be treated. People with a mental illness can and do live fruitful, invigorating and worthwhile lives. The setbacks that they suffer are often a result of members of the community treating them with disdain.”
Hulls feels these issues very strongly, without a doubt, and it’s hard not to imagine that he has followed the debate somewhat unhappily. This strikes me as yet another occasion when he has a choice to make about heading off a political threat to the Charter. But will he fight the threat to the Charter’s existence or the threat to its values?