The Charter vs VGSO

Well, the year hasn’t ended with a bang, but there’ve been heaps of Charter whimpers, even one in the High Court. But, before I get to all of those, there’s also been some negative press about the Victorian Government Solicitor’s Office, which raises (in my mind at least) some interesting Charter issues.

One story involves an intra-University dispute:

Last week, government solicitor John Cain jnr sent a letter to James Doughney, a member of the university’s governing council, demanding he publicly apologise for “false and defamatory allegations” in an attack on a plan by university leadersto cut jobs. The letter says the university’s chancellor, Supreme Court judge Frank Vincent, and vice-chancellor Elizabeth Harman, reserve their rights to take legal action if Dr Doughney does not withdraw and apologise for his comments.

In October, The Age revealed Dr Doughney had sent a six-page letter to state and federal MPs accusing Professor Harman of using a “pea-and-thimble trick” to create a cash crisis to justify slashing 270 jobs. With Victoria University and the tertiary union in an industrial dispute, Mr McGowan said the defamation threat was an attempt to intimidate Dr Doughney in his role as state president of the union. Dr Doughney, an economist and elected staff representative on the university council, has said it was extraordinary for the chancellor to use a government solicitor in a bid to “gag” an academic.

As they say, disputes within Universities are so bitter precisely because so little is at stake. This story really only got attention because it involves some non-University players: a sitting judge and the head of the VGSO. The NTEU thought that the government should butt out, but the Attorney-General snapped back that Victoria Uni is the government:

Mr Hulls’ spokeswoman, Meaghan Shaw, said Victoria University was a statutory entity. She said the institution had been a client of the Victorian Government Solicitor’s Office for some years.

But sometimes it’s not so fun to be the government, depending on whether you fall within the definition of public authority:

4(1) For the purposes of this Charter a public authority is-

(a) a public official within the meaning of the Public Administration Act 2004; or

(b) an entity established by a statutory provision that has functions of a public nature; or

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise);…

So, who’s a public authority here?:

  • Victoria Uni? This isn’t entirely clear. It’s definitely a ‘statutory entity’, so it’s a public authority if it ‘has functions of a public nature’. Is tertiary education a function of a public nature? I bet that question taxes University heads every day.
  • Frank Vincent? (whose free speech credentials shone through in the Underbelly judgment.) This is clearer, but there’re two murky catches. He’s definitely a ‘public authority’, because he’s a ‘public official‘ under the Public Administration Act 2004, which includes judges, magistrates and the like. (He’s probably also a holder of a statutory office too, through his Chancellorship.) But one question is whether he’s a ‘court’ (or is that strictly his day job?) and then whether his Chancellorship is a non-administrative function under the dreaded Charter s. 4(1)(j). The other is whether his little letter to Dr Doughney, threatening a private law action, is an ‘act of a private nature’? So very murky. 
  • VGSO? This is the clearest. I can’t be bothered tracking down what VGSO is, exactly, but it’s almost certainly a public entity and, hence, a public official, and hence a public authority (gawd.) (If not, then things depend on the status of VU, as VGSO in this case is acting on behalf of them, right?) 

Anyway, the NTEU and Dr Doughney will be thrilled to know that that means that there’s no way that VGSO would do anything that was incompatible with human rights, including Dougney’s freedom of expression:

…[F]ormer Melbourne University vice-chancellor David Pennington said it was “silly” and “nonsense” for Dr Doughney to suggest the conflict was about academic freedom of speech. “It is not an issue of academic study and expertise, he told The Age. Professor Pennington said Dr Doughney was in a conflicted position in his roles as the elected academic representative on the university’s governing council and his position as the union’s state president. “This is a matter of political and industrial positioning.” Dr Doughney had the right to participate in the decision-making process of the university’s council, Professor Pennington said, but his primary responsibility was to the “institution and the corporation”.

Well, that’s a relief. But Doughney shouldn’t have worried anyway. Victoria’s top lawyer, Pamela Tate, is a member of the Australian Academy of Law and (until two months back) was on the advisory committee to Melbourne Law School’s Centre for Comparative Constitutional Studies. No way would she have a bar of any infringements on academic freedom.

The other story is the long-running saga of Mark Morgan, the Castlemaine solicitor whose miseries started after he won a heady victory for the victims of some dodgy police conduct. The police, mostly still on the job, were too poor to pay, but Morgan initially got an order for Victoria to pick up the tab. Alas, that victory triggered demands from Morgan’s ‘no win no fee’ barristers that they get paid, which wasn’t looking like it’d happen anytime soon because Victoria was appealing. The barristers convinced Morgan, who was no longer acting in the case, that he should promise the court that he’d repay the fees to Victoria in the event that it won its appeal. Of course, Victoria did and Morgan is up for a lot of money, as neither the police officers (ever) nor  the barristers (initially) paid up. According to the Court of Appeal, the VGSO officer in charge named Hugh McArdle got pissed off at Morgan (in part because he mistakenly thought a failed contempt action by the barristers had Morgan’s backing) and threw the legal book at him, demanding payment despite further High Court proceedings and the absence of any time-condition on Morgan’s undertaking, and threatening and eventually bringing contempt actions.

Alas, McArdle’s contempt action was a bridge too far. This wasn’t clear at first, because County Court judge Pamela Jenkins found Morgan guilty and made nasty sentencing remarks that caused Morgan a world of trouble with the profession (which, of course, made it even more difficult for him to meet his debt to Victoria.) But, yesterday, in Morgan v State of Victoria [2008] VSCA 267, three appeal judges found that the contempt action was untenable in multiple ways, mostly connected to the failure of either the undertaking or later orders that replaced it to specify a time for Morgan to pay his debt. The Court gave Jenkins a big serve, for being overly happy to wave away service process rules,  for quoting a Bongiorno judgment out of context and for wrongly labelling Morgan’s wrongs extreme. Each of these errors probably piggybacks on errors by VGSO, which is the one who failed to comply with the rules and – just a guess, I dont know – just might have been the one who led Jenkins into error on Bongiorno’s wise words. The most newsworthy point is that the Court firmly disagreed with Jenkins sentencing remarks, instead noting that VGSO came to the party with very dirty hands:

Moreover, Victoria’s position was hardly that of the model litigant which it purports to be and should have been. Throughout, whatever be the explanation for it, Victoria’s position towards the appellant was very aggressive, repayment being sought prematurely and otherwise inappropriately, and contempt proceedings being threatened on several occasions and ultimately being brought when on proper analysis contempt could not be established.

Ooooh. See, it’s sometimes a good thing to be sued by the government!:

2. The obligation requires that the State of Victoria, its Departments and agencies:

(a) act fairly in handling claims and litigation brought by or against the State or an agency,

(c) avoid litigation, wherever possible,

(f) do not rely on technical defences unless the State’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement,

(g) do not take advantage of a claimant who lacks the resources to litigate a legitimate claim,…

But it’s not just the model litigant rules that VGSO is bound by. It also has to act compatibly with Morgan’s human rights, such as his right not to be deprived of property otherwise than in accordance with law and this little sleeper:

21(8) A person must not be imprisoned only because of his or her inability to perform a contractual obligation.

This, international human rights lawyers would know, is one of the few non-derogable rights in the ICCPR. Jenkins gave Morgan a four month prison sentence (the maximum allowed), albeit one suspended for two years:

…Mr Morgan said yesterday he was preparing for negotiations with the Government about the aftermath of the decision. “I’m obviously very grateful that the Court of Appeal has set right what I believe was a travesty … the State of Victoria’s case was based on a Dickensian reading of (law about) the payment of debt,” he said. “I believe I would be one of the few people in the common law world who’s actually been imprisoned for a debt … I suppose my only crime is that I had a go at the police and won.” A Department of Justice spokeswoman said Victorian Government solicitors were reviewing the court’s decision.

VGSO claimed it prosecuted Morgan for failing to live up to his undertaking and that its purpose was punitive, rather than just an attempt to enforce a debt. The Court of Appeal thought it was ‘by no means clear’ that VGSO’s word on that should be accepted and, anyway, VGSO and the County Court alike should prefer alternative remedies first. Contempt proceedings should not be undertaken lightly. Arguably, in light of Charter ss. 21(8) and 38(1), they shouldn’t be undertaken at all in cases that are, in substance, just disputes about someone’s failure to repay a debt because s/he couldn’t afford to do so. (Of course, Charter s. 49(2) would nix any application of the Charter in this case, as the contempt proceeding was initiated in 2005. What was that in the Model Litigant rules about not relying on ‘technical’ defences?)

Alas, thrilling as it is to be sued by VGSO, it’s not at all clear that there are any meaningful remedies available for breaches by VGSO of its conduct mandate. It’s worth noting that VGSO is actually bound by this provision of the Public Adminstration Act:

7 (1) The following are the public sector values- … (g) human rights-public officials should respect and promote the human rights set out in the Charter of Human Rights and Responsibilities by- (i) making decisions and providing advice consistent with human rights; and (ii) actively implementing, promoting and supporting human rights.

(2) Subject to subsections (3) and (3A), a public sector body Head must promote the public sector values to public officials employed in the body and ensure that any statement of values adopted or applied by the body is consistent with the public sector values.

But, alas:

(4) Nothing in subsection (1)- (a) creates in any person any legal right or gives rise to any civil cause of action…

I’ve had cause to wonder whether the actions of VGSO or any other government lawyer can be referred to the Ombudsman for an inquiry into Charter compliance:

13(1) The principal function of the Ombudsman shall be to enquire into or investigate any administrative action taken in any Government Department or Public Statutory Body to which this Act applies or by any member of staff of a municipal council.

(1A) The functions of the Ombudsman under subsection (1) include the power to enquire into or investigate whether any administrative action is incompatible with a human right set out in the Charter of Human Rights and Responsibilities.

But alas:

(3) Nothing in this Act shall authorize the Ombudsman to enquire into or investigate any administrative action taken-…. (b) by a person acting as legal adviser to the Crown or as counsel for the Crown in any proceedings;

So, that leaves Charter s. 39, which blocks relief or remedies for breaches of the conduct mandate unless there’s a non-Charter remedy. And those are thin on the ground for the VGSO, which doesn’t seem to be a tribunal under the Administrative Law Act and is probably pretty tough to sue under common law administrative review (satellite litigation and all that.) 

No small wonder, then, that the human rights culture is having so much trouble taking hold in the VGSO….

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