Bell’s Charter

Today’s surprise announcement of Kirby’s replacement on the High Court had two immediate reactions from me: (1) McClelland went for a NSW judge who isn’t Basten?; and (2) why does her name ring a bell?

I am pleased to announce that the Government has decided to recommend to Her Excellency the Governor-General the appointment of Justice Virginia Margaret Bell as a Justice of the High Court of Australia, with effect from 3 February 2009. Justice Bell will be the 48th person, and the fourth woman, appointed to the High Court since Federation. Her Honour’s appointment will follow the retirement of the Honourable Justice Michael Kirby AC CMG after 13 years of outstanding service to Australia’s highest court.

Justice Bell is currently a Judge of Appeal of the NSW Supreme Court. Beginning her legal career at the Redfern Legal Centre in 1978, Justice Bell practised as a lawyer for over 20 years before being appointed a Judge of the NSW Supreme Court in 1999. Her Honour’s time in practice included service as a Public Defender, as Counsel Assisting the Royal Commission into the NSW Police Service, and as a part-time Commissioner of the NSW Law Reform Commission. Most recently Her Honour has also served as President of the Australasian Institute of Judicial Administration.

Ho ho. But I’m not kidding, as she actually has a significant Charter link. Indeed, she’s the first and (putting aside other judgements referring to her judgment) only non-Victoria judge to have mentioned Victoria’s Charter in a judgment to date. (As it happens, the other non-Victorian who came closest was he judge Bell is replacing, but he only did it second-hand, by citing an article by Evans and Evans.)

Her Charter moment is one I’ve covered on this blog before, in the context of critiquing passing mentions. The first and worst such mention was Callaway’s citation of Charter s. 7(2) as a reason to construe Victoria’s Serious Sex Offenders Monitoring Act (where the ‘monitoring’ can include requiring someone to ‘reside’ in the grounds of a prison) narrowly, simply because it reveals Victoria to be a glorious liberal democracy. This pointless Charter reference led NSW courts, at first, to refuse to follow Victoria’s Court of Appeal when it came to construing NSW’s similar (but slightly more draconian) legislation. And the judge who took that step was Bell:

In TSL the Court took into account the provisions of s 7(2) of the Charter of Human Rights and Responsibilities, observing that “The Charter of Human Rights and Responsibilities 2006 (Vic) is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation.” (footnote [15].) In this respect it seems to me that the plaintiff’s submission that s 17(3) of the Act should be construed in accordance with its terms and not by reference to the approach taken to the Victorian Monitoring Act has force.

I have to say that I don’t think much of this argument for not following the Victorian precedent (and nor, it seems, did the Court of Appeal.) But I think there are some quite positive spins to draw from this in terms of Bell and the Charter.

First, it arguably might signal her view that – unlike most Victorian judges – Bell does think the Charter is transformative, to the point that Victoria’s legal system should diverge more and more from the rest of the country (except the ACT.) That’s surely a good thing and, I suspect, one that will contrast with the Howard clones and Gummow.

Second, and more likely, it probably signals her distaste for the quite mild and garbled formulation that Callaway came up with after his pointless Charter mention. Recall that the NSWCA opted for comity with Victoria despite its preference for a standard that was much tougher than Callaway’s, equating the term ‘likely’ with ‘more likely than not’. Bell had adopted that standard in her judgment. And, as it happens, that’s exactly the standard that the Victorian Court of Appeal might adopt, applying the Charter, in the sex offenders’ challenge.

And that makes Bell’s appointment timely indeed, because that challenge is likely to be the first Charter case that makes it to the High Court. (Both parties, or at least both interveners, would be sure to appeal. The only thing that would stop the case reaching the Court is if the Court bizarrely rejects special leave or the Victorian government renders the matter moot by passing new, clearer legislation, though that would invite a further Charter challenge.) So, it’s pretty clear what standard Bell would opt for, Charter or not. Lucky that, as a NSW judge, she wouldn’t have to recuse herself from a case on a Victorian statute.

More broadly, this signals the main joy of Bell: her unambiguous criminal justice background, ranging from Redfern Legal Centre to countless sentencing appeals in recent years. Maybe every legal field has this gripe, but as a criminal justice academic, I certainly feel that criminal justice has been a horror in the High Court for years (and that’s not for want of appeals being granted special leave.) It’s so sad teaching criminal law these days, where all the key cases are from the 1980s, when the High Court made so many sensible (or at least simple) improvements to the criminal law; compare and contrast the countless narrow, technical, ambiguous and heartless judgments that the Court has churned out since Brennan took over the Chief Justiceship. Of course, Bell is just one judge – and there’s going to be a majority of Haynes, Heydons, Gummows and Crennans for some time – but even the slightest step in the right direction will be a blessing.

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