Wrapping up 2008

To date, I’ve covered 47 cases that mentioned the Charter in 2008. There’s another two that I’ve written a post on but VCAT won’t let me tell you about those. And there’s another four [EDIT: five, as it turns out; [RE-EDIT: no seven!]] left. But the clock is ticking and I won’t have time to do a post on each of them. So, instead, here’s a set of short-takes:

Morgan v Department of Human Services (General) [2008] VCAT 2420: This is an FOI case from VCAT, but not the major case foreshadowed in the VGSO seminar, which I think was the subject of hearings last week. Instead, Ms Morgan is a litigant-in-person who alleges that various agencies of DHS committed manner of wrongs against her and her son in relation to eviction from and provision of crisis accommodation. Her initial step was to launch a private prosecution, but the DPP took it over and then dropped it. She then made an FOI request to DHS, who refused to release 128 documents, claiming a variety of FOI exemptions. She disputes the exemptions, hence the VCAT hearing. The Charter appears to arise in two ways: (1) Morgan alleges that the initial wrongs by the DHS agencies included breaches of various Charter rights: equality, privacy, families/children, liberty. Senior Member Robert Davis held this Charter angle made no difference, given that Morgan was already alleging all manner of illegality. Fair enough, though the position might be different for some other rights, like the right to life, that incorporate a right to a state investigation – arguably, FOI is needed to make sure the state doesn’t duck that job. (2) Davis noted that, in interpreted the FOI Act’s exemptions, he had to ‘give regard to [Charter] s32 in particular and the Charter in general.’ But nothing came of this. No sign of any analysis of what rights the exemptions may be incompatible with. I guess that’ll be up to Bell when he delivers judgment in XYZ v Victoria Police.

Kilkenny v Frankston CC [2008] VCAT 256: This is a plain old residential planning dispute from the Melbourne suburb of Seaford. So, what’s the Charter angle?:

Ms Kilkenny and Mr Colgan expressed concern about the potential for overlooking onto their property from a south facing window to the stairwell. Their grounds assert that the window would cause overlooking causing unreasonable loss of privacy. They also asserted that the charter of human rights had been breached as the council had not given adequate regard to their privacy. However, these concerns were allayed when Mr Kirk agreed to the inclusion of a condition on the permit requiring the deletion of the window in question and for it to be replaced with a skylight. Ms Kilkenny and Mr Colgan agreed that with this change, they were no longer concerned about overlooking or that their rights under the charter were breached.

Well, that’s a relief. I bet Phil Lynch will add this one to his list of feelgood stories about how the Charter is making a real difference! I’m sad, of course, because I would have loved for this one to go to the High Court so they could solve the many fascinating issues Ms Kilkenny’s and Mr Colgan’s assertion raises about the potential ‘horizontal effect’ of the Charter!

A R M v Secretary to the Department of Justice [2008] VSCA 266: This is the companion case to the fizzer, RJE. Unlike RJE, ARM didn’t escape his ESO. That’s unsurprising, because he had quite the history of offending (though, weirdly, he only got a short sentence for his most recent offence, which was against a 19 year-old) and, indeed, he conceded that he was likely to re-offend without supervision. His complaint was that an eight-year order was excessive, because of expert evidence that he’d be fine after a three-year course of treatment. The Court of Appeal held, convincingly, that the trial judge’s order of a three-year review (and two-year reviews thereafter) would do. That’s fair enough. Indeed, there seems to be no difference in substance, so why was ARM even in the court of appeal? Anyway, he did have two smaller victories: (1) He managed to head off an astonishing argument by the government that the SSOMA only allowed appeals against orders, not the duration of them. What was that about ‘model litigants’ not relying on ‘technical defences’? (2) He also won a non-pyrrhic victory, by getting the Court of Appeal to suppress his identity. This involved overcoming another nasty technical defence, but was otherwise easy, as the Court of Appeal felt that non-suppression would be a punishment and that there was no public interest in knowing who ARM was anyway. And that’s where the Charter got a passing mention:

In other cases it may be necessary to consider the right to privacy and reputation conferred by s 13 of the Charter of Human Rights and Responsibilities and, along with it, the effect of s 32 of the Charter on the interpretation of s 42 of the Act.

Yeah, well, in other cases – and in this case, for that matter – it might have been appropriate to consider Charter s 15 too, don’t you reckon? Derryn Hinch would undoubtedly say that Charter s 17 is worth a look too. But, boy, it’s not looking good for his challenge, is it?

Tilley v The Queen [2008] HCA 58: And, in what appears to be the [EDIT: second- [RE-EDIT: fourth!]] last Charter case of the year, it’s the first one that isn’t in a Victorian court or tribunal, though I guess Kenneth Hayne is still a Victorian of sorts. Not that he went easy on his former court. He was livid that convicted heroin trafficker, Peter Tilley, had to wait almost two years before he got an appeal hearing in the Court of Appeal, and then an astonishing further year before the Court delivered a judgment. (One of Tilley’s co-conspirators (ahem) completed his life sentence during that interlude!) Tilley was now seeking special leave in the High Court because the Court of Appeal, despite spending so long in contemplation, apparently forgot to consider some of his appeal grounds. Before Hayne, he argued that he had only one year left of his five-year non-parole period and an appellate success after that would be pointless unless he got bail. That triggered one half of a High Court precedent on bail pending special leave, but alas Hayne held that Tilley failed the other half, which required that the special leave application had a good chance of succeeding. Anyway, in the midst of Hayne’s raking the Court of Appeal over the coals, he said this:

It is neither necessary nor appropriate to examine here what, if any, consequences now follow in Victoria in this respect from s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and its provision that: “(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees – … (c) to be tried without unreasonable delay”.

Nice to know he’s heard of the Charter. But why wasn’t it necessary or appropriate to actually apply the thing? Two explanations: (1) Charter s. 49(2), the bane of all ‘unreasonable delay’ cases for now. Tilley, of course, was charged yonks ago, but there would seem to be an argument that his proceedings before Hayne were separate from his criminal proceedings. (This makes a mockery of Charter s. 49(2), of course, but it deserves that.) (2) The High Court wasn’t exercising appellate jurisdiction (which might involve reviewing whether or not the Court of Appeal should have applied the Charter during the appeal) but original jurisdiction (and, in particular, s73 of the Constitution, which is the source of the High Court’s bail power.) So, no Charter s. 32 (the constitution isn’t a Victorian statutory provision), no Charter s. 38 (the High Court isn’t a public authority) and no Charter s. 6(2)(b) (the High Court isn’t a Victorian court or tribunal), right? Well, maybe. But what about the Judiciary Act and, in particular, this provision?:

79(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Now, I certainly know very little about federal jurisdiction – Gummow: ‘I just felt a disturbance in the force!’ – and it may well be that this provision doesn’t bind the High Court exercising original jurisdiction. But, on the off-chance that it does, then wouldn’t it be arguable that Charter s. 25(2)(c) is a law ‘relating to procedure’ and that one or other of the operative provisions – Charter s. 6(2)(b) perhaps – is picked up by s79 in applications like Tilley’s? (As I understand things, this pick-up can even apply to state laws expressed to apply only to Victorian courts.)  And might that mean that Hayne has to rethink that rather restrictive High Court precedent on bail, to the extent that it limits Tilley’s rights under Charter s. 25(2)(c)? Just some crazy speculation, but maybe someone else is smoking what I’m smoking. [EDIT: Hey, someone was, but the Federal Court and the High Court didn’t inhale; interpretation is probably the least likely operative provision to be picked up, I imagine.] Not Hayne though, but he did give Tilley a little help, expediting his (doomed) special leave application.

And that’s it for my short takes. Not that short really. Despite my next post, I might just add some additional short takes on the off-chance that more 2008 judgments emerge on Austlii, even next year. But, as for 2009 judgments, you’re on your own.

[EDIT: As promised, here’s a short take on a new 2008 case that has appeared on Austlii: [RE-EDIT: Actually, there are three newcomers now.]]

Drummond v Telstra Corporation Limited [2008] VCAT 2630 is an unfair dismissal case trying to qualify as an anti-discrimination case. Drummond got a job as a customer service officer at Telstra, but first had to do a training course (during which he’d be employed by the company running the course.) Things didn’t go well: Drummond’s original choice of seat in the class room was rejected (and he ended up sitting next to the class’s sole other failure), he was late to work after being assaulted at a train station, he was late because of a traffic jam, he took a long break to change a bandage, etc. Soon, he was having informal and then formal conversations about his performance. The course runners obviously wanted to get rid of him and Drummond resigned. But he later took a case to VEOHRC arguing race and age discrimination, which the Commission refused to pursue further. Now he’s self-represented in VCAT with the same arguments, but Telstra is trying to get his case summarily dismissed. VCAT agreed to summarily dismiss the race claim, which seemed to be based on the intriguing premise that his difficulties with the course were due to his Australian nationality, which left him less suited to the ‘shitty jobs’ that overseas people (the majority of the course participants) are willing to do in Australia. The Charter came up because Drummond argued that summary dismissal was contrary to his Charter rights, notably his right to a fair hearing, via Charter s. 32 applied to VCAT’s summary dismissal provision.

Alas, VCAT Deputy President Michael Macnamara proved less than ept at handling the Charter arguments. Drummond argued that summary dismissal was inappropriate in a case where a self-represented litigant was up against a deep-pocketed corporation. That’s an ‘equality of arms’ argument, which is a well established feature of the right to a fair hearing, even in civil matters (not that Drummond’s particular take on that argument is necessarily a winner.) But Macnamara held – in an argument that the government will be smiling about – that the presence of particular equality rights in s25(2) for criminal defendants implied their absence in s24(1). Jeez. Drummond also argued Charter ss. 15, 38 and 39. Macnamra couldn’t make head or tail of the former – Drummond’s right to put his case to the court, maybe? – and dismissed the latter on the grounds that Telstra – a company limited by shares – isn’t a public authority. That, of course, is no reason (on its own) to reject a claim that Telstra is a public authority (though there might be other reasons to do so.) A clearer ground to reject the application of ss 38 and 39 is that all the dismissals happened before 1/1/8 (Charter s. 49(3)), though maybe Drummond’s point is that Telstra’s motion for summary dismissal was a breach of the mandate. All up, another instant of a (probably) dodgy Charter argument dodged in a dodgy way.

[RE-EDIT: And it’s taken me until the end of 2009 to notice two more cases that have popped up on Austlii:

R v Rich (Ruling No 19] [2008] VSC 538 is one of twenty rulings that became unsuppressed after Hugo Rich (neé Dietrich) was convicted of killing a bank security guard. This ruling was his bail application, which, like the earlier (published) Rich case, rested on his complex computer needs. This time, he wanted bail to access secret data on the internet (without prison technical folk doing it for him and ‘accidentally’ deleting it) and claimed that those amount to the requisite ‘exceptional circumstances‘ that a charged murderer needs to get bail. Justice Lex Lasry was understandably skeptical about Rich’s computer needs and ruled that avenues than bail were available for Rich to get what he needed. Rich’s lawyer pressed the Charter , presumably Charter s. 24. One problem for this claim was Charter s. 49(2), as Rich was charged in 2005, but Lasry was willing to overlook that, in a nod to Rich’s argument that the ‘commencement’ of proceedings for the purposes of Charter s49(2) might be arraignment (which occurred in 2007. Hooray, Lasry got the date right!) But Lasry could afford to be generous, because he had already earlier dodgily ruled that the Charter doesn’t affect bail anyway. Here Lasry extended that ‘reasoning’ from delay arguments to fair trial arguments. (Alas, the Court of Appeal proved to be still more flippant about bail in 2009.) I guess that we’ll hear more about Rich’s Charter arguments when he appeals, sometime in 2010 or 2011.

Victorian Netball Association Inc [2008] VCAT 2651, unless a secret judgment emerges over a year late, is the real final decision of the Charter’s inspirational first year of operation. Somewhat fittingly, it’s yet another grant of an EOA-exemption by VCAT Deputy Prez Cate ‘Rubber Stamp‘ McKenzie. In this case, she paid close attention to the less generous approach of Marilyn Harbison in another Charter sport case, Royal Victorian Bowls Association Inc, and it seems to have tempered her. (Perhaps she’d be further tempered by 2009’s EOA-Exemption Bell Buster.) The more immediate backdrop was prior VCAT rulings about whether the standing exception for gender in sport where there were physical differences applies to 12 and 13 year-olds playing netball. Overturning an earlier decision (which wrongly focussed on skill, not strength), President Morris held that the standing exception didn’t apply, but then invited the netball authorities to seek (and then granted) a specific exemption on the basis that making girls play against more adept (and somewhat stronger) boys would drive them from the sport.

Granting exemptions to stop boys ‘swamping’ girls is right up McKenzie’s alley, of course. The catch is that, this time, the argument had to be that the 15,600 girls playing at 12/13 level would have to be swamped by… 343 boys! No worries!: boys’ minor physical advantage (at that age) was enough in combination with their aggressive, competitive nature (as opposed to social, fun-lovin’ girlies) and the fact that girls just don’t like playing with nasty smelly boys. McKenzie played the usual lip service to the Charter, but held that making the 343 boys stick to their own court was ‘reasonable’, because driving girls from netball would lead to obesity and Victorian Netball had started a ‘Fast and Furious’ tournament targeted at boys (presumably because girls are Slow and Sensuous. That doesn’t exactly fit with my one and only experience of mixed netball, an event of which I still bear scars, both physical and emotional.) (And here‘s how ‘Fast and Furious’ works: under 11’s boys are offered a choice of playing in mixed contests against under 11s girls, or playing in the under 14s boys only tournament. I bet that’ll be attractive to 11 and 12 year-olds.) The slight tempering is that McKenzie tightened the reporting requirements (whereby Victorian Netball had to keep a close eye on sudden changes in the boy-girl difference) and cautioned that the exemption may not be granted next time. No rubber stamps!

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