Giuseppe De Simone redux

[EDIT: Here, at last, the post VCAT suppressed, originally written over a month ago. Who knows why the suppression was ordered or lifted? The case is now available online.]

He’s baaaack! Giuseppe De Simone, readers will recall, scored a brief Charter mention on Halloween in his succesful appeal against his conviction for biting a police officer in the aftermath of a supermarket dispute involving an ice-cream he ate. But that isn’t the end of his business in Victoria’s judicial system or, for that matter, his significance for the Charter. In a recent VCAT judgment, he had another bite of the Charter cherry. Actually, it was his third. And it raises one novel issue (involving Charter s. 33, the Supreme Court referral provision) and a host of familiar ones.

The context is a building contract dispute relating to the Seachange Retirement Village at Ocean Grove  (which, for those who don’t know, is quite close to Barwon Heads, which, for those who don’t know, is the real life location of Pearl Bay, which, for those who don’t know, lucky you.) The owners of the land have sued the builders for non-performance (after the Charter s. 49(2) cut-off date, it seems) and the builders have counterclaimed for misleading conduct. In the thick of things is De Simone, managing director of the owners. On 27th July 2006, two days after the Charter became law, he sent the builders, who said they needed evidence of financing for insurance purposes, a letter on an accountant’s letterhead that appeared to confirm financing. Alas, it seems, it didn’t, but was instead a letter about a subsidiary money matter. This led to De Simone being personally joined in the action. The recent VCAT case was De Simone’s attempt to stay that part of the action.

But, before we get there, there’s an earlier Charter angle. The original VCAT officer appointed to the case early last year was Senior Member Roger Young. Young fairly quickly started to have problems with De Simone, who, it turns out, ‘has studied law but has not been a legal practitioner’. The worst sort! De Simone represented himself (for the most part) in the various directions and interlocutory hearings that arose last year and he and Young obviously didn’t get along, with Young often shutting down De Simone’s contributions (and pointedly suggesting he get a lawyer) and De Simone making applications for Young to step down due to apprehended bias (one of which was prompted by the ‘lawyer’ suggestion, which Young conceded was a lame joke.) In the end, it seems, Young just started to lose it, stopping De Simone from making relevant submissions, criticising De Simone for skipping a meeting that Young had excused him from and, most damningly, saying things like: ‘Gee whiz, I’m getting sick of you!’ (Surely likely to be the last non-ironic use of the term ‘gee whiz’ ever.) So, in the middle of this year, in Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 1479, VCAT’s (then) acting President Ian Ross exercised his powers to take over the case, citing apprehended bias, De Simone’s fair hearing right and Charter s. 24. The latter was a classic passing mention, with all the lameness and fuzziness that follows from it. Fortunately, Ross’s latest Charter judgment on the case is more substantial.

De Simone’s case for having the civil claim against him stayed arises because the builders not only sued in VCAT but also referred De Simone’s alleged financing letter shenanigans to the Geelong police. De Simone has not yet been charged (either at the time of his application, in July, or the time of the ruling, in late November), but it was accepted by all parties in the hearing that the probability of  a charge of obtaining financial advantage by deception was ‘high’, although the time-line is not known. De Simone’s application therefore raised the same issue as Trevor Flugge‘s (successful) stay application: whether the civil proceedings should be stayed to avoid prejudicing the defence of the future criminal proceedings and, in particular, whether the unpopular 1982 judgment of McMahon v Gould, which generally favoured the rights of civil litigants, should be applied. However, whereas Flugge’s action faced some significant barriers to raising the Charter (due to the federal context and the  Charter’s lack of direct application to common law rules), De Simone’s action lacks those barriers: VCAT’s jurisdiction is both Victorian and statutory.

The initial (and most novel) issue in Seachange Mangement Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2008] VCAT 2629 is whether the questions pose by De Simone’s Charter challenge should be resolved by VCAT or by the Supreme Court. De Simone requested the later. Here’s the relevant Charter provision:

33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if- (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

(2) If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not- (a) make a determination to which the question is relevant while the referral is pending; or (b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.

(3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court, the referral is to be made to the Court of Appeal.

This provision is the result of a recommendation by the Consultation Committee. (Interestingly, and pertinently, the Committee’s draft also required a referral to the Court of Appeal instead of the Supreme Court if the referral was from a VCAT President or Vice-President, but that equitable treatment of VCAT and the Supreme Court was excised by the meddlers. )  The Committee explained that sometimes lower courts ‘need guidance on an interpretative question’ and that the Committee ‘sees value’ in having the Supreme Court decide them (following notice to the A-G and VEORHC.) So, it’s another plank in the Committee’s ‘don’t let lesser lawyers or officers stuff up our precious Charter; that’s a job for the Attorney-General and the Supreme Court’ philosophy. However, unlike the risible Charter s. 35, this provision is ameliorated by the sensible constraints of requiring both a party request and a determination by the first instance officer, before the higher authorities stick their collective nose in.

God knows why De Simone made his application (relating to both the application of Charter s. 24 directly to VCAT and its application to the procedural provisions in the VCAT Act), though you’d have to wonder whether he just wanted to delay the civil claim against him under Charter. s33(2)(a), which would probably be as good as getting a stay. But the interesting question is when and on what basis such an application should be granted under Charter. s. 33(1)(b). Neither the Consultation Committee’s report nor the EM given even the slightest hint of when a question ‘is appropriate for determination by the Supreme Court’ [sic – or the Court of Appeal.] Here’s Ross’s take:

I am not persuaded that it is appropriate to refer either of these questions to the Supreme Court pursuant to s 38(1) [sic]. The issues raised by the questions were fully ventilated in the proceedings as was the application of the relevant principles to the facts of this matter. In my view the most expeditious course is to determine the application. Any party aggrieved by the decision may exercise their appeal rights and the issues sought to be determined by the referral application may be determined in that context.

Well, I’m not persuaded by this. Surely, the major issue under Charter s. 33(1(b) is whether or not the question is important enough to require authoritative determination, both for the benefit of the immediate matter and for other similar proceedings. The application of McMahon v Gould in VCAT matters would seem to fit the bill, especially given the enormous criticism of that case, including recently in the Supreme Court. The major counter-factor would be the impact of Charter s. 33(2)(a) on the proceeding itself. Perhaps that’d be a weighty factor, but Ross doesn’t discuss whether or not the builders or owners would be prejudiced by delaying the counter-claim against De Simone (who, it must be remembered, was a late joinder to the original dispute between the two companies.) Of course, there’s a certain sense in Ross’s notion that the matter could be dealt with by the Supreme Court on appeal (and that there’s no reason why Ross can’t resolve the matter himself), but that sense seems to be at odds with the whole (elitist) point of Charter s. 33.

Personally, if the parties are willing – or if one party is keen and the other isn’t prejudiced overly –  it strikes me as a good thing to fast-track major issues to the Supreme Court and Court of Appeal, at least while so many crucial things about the Charter remain unresolved. For instance, what really is the point of Bell J’s current lengthy hearings about mental health, FOI and the definition of public authority, when those matters are all so contentious that they will inevitably have to be sorted out by the Court of Appeal (and perhaps the High Court)? If the parties are fine with doing things the slow way, then I have no objection. But otherwise? The quicker these major questions about how the Charter works are authoratitively resolved, the better, surely?

Anyhow, for better or for worse, Ross proceeded to resolve the matter himself. The good news is that he (and, it seems, the lawyers, and maybe even De Simone) were well versed in Charter Operative Provisions 101:

The Charter may impact on VCAT’s work in three ways:

  • if VCAT is a ‘public authority’ s 38(1) provides that it would be unlawful for it to act incompatibly with human rights (subject to the exceptions in ss 338(2) and (4));
  • all statutory provisions must be interpreted in a way that is compatible with human rights (s 32(1)); and
  • the Charter applies to courts and tribunals to the extent that they have functions under Part 2 and Division 3 of Part 3 of the Charter (s 6(2)(b)).

Oh, thank you Ian Ross! You can read! I’m not being facetious. You are streets ahead of most of your supposed betters on the Supreme Court: the Bongiornos, the Lasries, the Hollingworths, etc. You’ve even noticed the exceptions to the conduct mandate, including the most important one. Praise be. After nearly a year of blogging this stuff, I’m genuinely impressed. Which is actually tragic. Alas – readers of the blog know what’s coming! – Ross’s approach to the subtleties of the Charter didn’t quite match his precise grasp of the basics. Continue reading

A very Charter Christmas

shacIt must be the silly season, because why else would The Age cover the Charter?:

STUDENT squatters will try to use Victoria’s charter of human rights to stop their eviction from Melbourne University-owned buildings. The students — who have been occupying the Faraday Street terrace houses in Carlton for the past four months — were summonsed to appear in the Victorian Supreme Court yesterday for an eviction hearing. The Student Housing Action Collective want to use the terraces to create a student housing co-operative, but the university wants to develop it into off-campus student space.

Teishan Ahearne, from the collective, accused the university of using the Christmas break to move against the squatters. “The university is playing Mr Scrooge, attempting to evict homeless students on the eve of Christmas. Their actions are utterly unjust and sneaky,” she said. Yesterday the court heard that the university had begun the proceedings to comply with a building notice issued by the City of Melbourne. That notice said the buildings had to be vacated by January 7.

But Chris Povey, for the students, said his clients would seek to invoke Victoria’s charter of human rights to prevent the university from moving them on. He told the court that should the students be evicted many of them faced homelessness. Justice Cavanough agreed to adjourn the hearing to January 5, but ordered any applications under the human rights charter had to be filed with the court by December 30.

So, the students can spend Christmas in their terrace houses, but, thanks to nasty Charter s. 33 and Practice Note No. 3, they’ll have to spend their holidays swatting up on the Charter.

Alas, as I’ve discussed several times on this blog, the intersection of tenancy law and human rights law is a perfect storm of the Charter’s curmudgeonly operative provisions:

  • First, the students need to find a right that has been breached. In conrtast to some of the more heartrending (or maddening) human rights tenancy cases of yore, this one doesn’t seem to involve any families or kids, so Charter s. 17 won’t help. Nor are there discrimination issues. So, everything will have to rest on the narrow shoulders of Charter s. 13(a)’s right against arbitrary interferences in the ‘home’.
  • Second, there’s the problem that the Residential Tenancies Act‘s statutory language isn’t exactly amenable to re-interpretation to prevent ‘eviction into homelessness’. And there’s also the problem that any such friendly interpretation will be contrary to the rather unfriendly purposes of statutory tenancy law (and, if Hansen rules, may go further than the reasonable limits jurisprudence allows.) (I’ll take the students’ word that they have nowhere to go, though it does remind me of some former friends from my uni days who stole from the Salvo’s. ‘Who’s poorer than us?’, they asked. Fortunately, they both have jobs in top overseas unis now. Maybe that theft let them crawl out of the poverty spiral.)
  • Third, there’s the conduct mandate route. But: (a) is the Uni a public authority?; (b) is eviction incompatible with the Charter right against arbitrary interference in the home?; (c) does the RTA provide the uni with Charter s. 38(2) cover? (d) is relief against eviction one of the non-Charter remedies that can squeeze through the thicket of Charter s. 39?

Bah humbug!. But at least the students may emerge (from their studies and their terrace houses) with some very handy expertise on the limits to Victoria’s Charter….

(Charterblog will, unsurprisingly, go quiet for a couple of days. Alas, there’ll be some more surprising quiet not too long after that. See the flurry of posts around New Years’ Eve….)

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. Continue reading

Hulls’s Charter

Rob Hulls’s most important contribution to Victorian human rights law, after the Charter itself, is his promulgation,  on the last Friday before the last Christmas before the Charter came into full operation, of regulations exempting Victoria’s three parole boards from the definition of a public authority and, hence, from the Charter’s conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

To my knowledge, the decision has only been mentioned three times by the government: (1) by VEOHRC in its annual report, where one of its few negative comments was the lack of transparency in the decision; (2) by Hulls at an estimates hearing, where he attributed it to concerns about the parole boards having to give natural justice, and (3) by the current chair of the Adult Parole Board in its annual report, where it applauded the decision as a ‘prudent and responsible step’. 

The exemption is due to expire in 15 days. Here’s what Hulls said in June about his decision as to whether or not to extend the exemption:

They will have to put to me not only a very strong argument as to why they should be further exempted for a period of time but also, if they were not exempted, what resources they believe they would require to fully adhere to the charter. It may not be just a question of resources; that is true. It may well be, on the decisions they make and the timeliness of those decisions that they are required to make when they are dealing with people’s liberty — they do not give reasons for their decisions, as you are probably aware — as they have initially put to me, that it is important that they continue to operate in that way. As judges they admit that in all likelihood they are denying people natural justice. But that has always been how the parole board operates and if you change that, and you put in place a whole range of appeal rights and they have to give voluminous reasons for decisions and the like, it would tie down the work of the parole boards and, in their view, they could well become unworkable. That is their argument. I want to see for myself and get a better feel for the way the boards operate and I will make a decision in due course. that this was done for a period.

And here’s what I said about that same decision:

Time for some hyperbole: when someone writes a history of the Charter a few decades from now, I think that Hull’s decision, whichever way it goes, will feature as a key decision on the path to the Charter’s ultimate fate, whatever that is.

The relevant Charter provision is this one:

46(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Charter to be prescribed or necessary to be prescribed to give effect to this Charter.

(2) Without limiting subsection (1), the Governor in Council may make regulations for or with respect to- (a) prescribing entities to be public authorities for the purposes of this Charter; and (b) prescribing entities not to be public authorities for the purposes of this Charter;…

Arguably, though, Hulls’s decision to promulgate the regulations or not is itself subject to the very conduct mandate that Hulls can exempt any public authority (himself included, presumably) from.

Today, a full four days earlier than I was expecting it, Rob Hulls committed to his choice:

Notice is hereby given under Section 17(2) of the Subordinate Legislation Act 1994 of the making of the following Statutory Rules: …

163. Statutory Rule: Charter of Human Rights and Responsibilities (Public Authorities) Interim Regulations 2008

Authorising Act: Charter of Human Rights and Responsibilities Act 2006

Date of making: 16 December 2008

And here’s his choice:

Continue reading

Charter s. 39 vs tenants

The interaction between residential tenancy law and human rights law is a major issue, both here and in the UK. VCAT has already used the Charter to suggest a narrower reading of a provision of the Residential Tenancies Act that would allow eviction. But, in the UK, recent cases have suggested that the interpretation mandate and the conduct mandate have limitations (to preserve parliamentary sovereignty) that might make the Charter less effective as a relief against eviction for tenants than some people think. In particular, the interpretation mandate can’t be used to read broad limitations into a statutory eviction right and landlords who happen to be public authorities are probably fairly free to ‘give effect’ to their statutory eviction rights by acting more or less like private landlords. See here and here. A three-week old case  that just turned up on Austlii, confirms some of these limits and introduces a new one that’s unique to Victoria’s Charter, involving the first ever application of Charter s. 39 to refuse a remedy. Unfortunately, VCAT’s reasoning is more debatable. 

Director of Housing v IF [2008] VCAT 2413  involves, not eviction, but rather the Residential Tenancies Act‘s ‘compliance’ scheme, which consists of four stages: a ‘breach of duty‘ notice, a ‘compliance order‘ if the notice is breached,  a ‘notice to vacate‘ if the compliance order is breached, and, ultimately a ‘possession order‘ (i.e. eviction), if the notice isn’t complied with. Whew! In this case, the Director of Housing was attempting to get to the second stage with its tenant, IF. The problem was IF’s alleged conduct towards his neighbours:

The incidents described at the hearing by LS included once when IF threw a log of wood over the fence and hit LS’ wife on the head. LS said that he bought his son a small swimming pool but had to put it away and not allow him to use it. He described an occasion when IF exposed himself to the child. LS called the police, but when they came IF was in his underwear and so drunk that the police said they couldn’t do anything. LS said that every time his wife leaves for her work IF stalks her, walking behind her and calling her “bitch.” Once IF said to LS’ son “your dad is f…ing dead meat – we are going to get him killed.” There have been many threats of death. LS said that IF calls LS a “f…ing Columbian” and yells out that he is going to have LS killed. After the first hearing of this case, on 7 August 2008, LS had to call the police because IF was yelling out that he was going to have LS killed. LS said that IF yells abuse and threats over the fence, and so they have to stay inside and keep the back door locked.. Sometimes IF’s friend SW sits out the front with IF and also yells out abuse at L. LS said that last night – the night before this hearing – a neighbour died and IF, who had been drinking, was yelling out that “the f…ing Columbian killed her.

Broadly, the problem was IF’s alcoholism. LS’s difficulties had been going on for seven years, and (unsurprisingly) LS’s family was on a waiting list for alternative accommodation. A neighbour backed up LS’s account, but IF and IF’s friend blamed LS for the dispute. IF didn’t help his arguments much by threatening LS during the VCAT hearing.

On 24th June this year, the Director of Housing issued IF with a ‘breach of duty’ notice, specifying four incidents of abusive behaviour in the previous month in breach of a statutory duty to not ‘use the rented premises… in any manner that causes a nuisance.’ (The more-apt second part of that duty, which refers to the ‘reasonable peace, comfort and privacy’ of neighbouring premises, wasn’t cited.) The provision governing breach of duty notices states:

208(1) A person to whom a duty is owed under a duty provision or that person’s agent, may give a breach of duty notice to a person in breach of that duty.

(2) A notice under subsection (1) must- (a) specify the breach; and (b) give details of the loss or damage caused by the breach; and (c) require the person, within the required time after receiving the notice- (i) to remedy the breach if possible; or (ii) to compensate the person to whom the duty is owed; and (d) state that the person in breach must not commit a similar breach again; and (e) state that if the notice is not complied with- (i) an application for compensation or a compliance order may be made to the Tribunal…

If someone leaves something smelly in a common area, it makes sense to tell that person to ‘remedy’ that in the ‘required time’ (14 days in most cases) and to not to it again. But it’s not so clear how notices work when the breach of duty consists of a course of conduct that evinces itself occasionally, as happened with IF. What does it mean to ‘remedy’ such a breach within 14 days? And what actions amount to ‘commit[ing] a similar breach again’? These issues were squarely raised by IF, because his neighbours had a quiet month after the notice was given, but another incident (the first of several, apparently) occurred again on 24th July. Did that mean that IF hadn’t ‘complied‘ with the notice, thus allowing VCAT to issue a compliance order?

VCAT Member Geneveive Nihill considered whether Charter s. 32 required her to consider whether or not an interpretation of s. 208 as obliging IF to refrain from abusive behaviour beyond the 14 day remedy period was a limit on IF’s rights. Apparently adopting Tate’s three-step approach to the interpretation mandate, she held that s. 208(1)(d) ‘engages’ IF’s right to privacy but also engages the right to privacy of IF’s neighbours (by promoting them.) Nihill skipped onto Charter s. 7(2) and asked Tate’s third ‘justification’ question. Unsurprisingly, justification was straightforward, given that the compliance scheme merely piggy-backs onto existing legal duties of tenants, which in turn piggy-back onto rights of their own. As enforcement schemes go, the RT Act’s compliance scheme is amazingly attenuated, with multiple opportunities for VCAT review, so it easily satisfied Charter s. 7(2)(e)’s ‘minimal intrusion’ test and the broader ‘proportionality’ test.

This is all well and good, but Nihill’s analysis suffered by not expressly considering the middle step of whether or not s. 208(1)(d) limited Charter s. 13(a). That would have involved considering whether or not s. 208(1)(d) was ‘arbitrary’ or ‘unlawful’. Equally, she also skipped s. 7(2)’s ‘subject under law’ requirement. Both of these tests focus on whether or not s. 208(1)(d) imposes a clear obligation on IF. Arguably, given it’s inaptness to breaches that consist of repeated incidents, it doesn’t. Does s. 208(1)(d) apply forever? Will a single moment of abuse breach it? IF, arguably, had no clear guidance on what would be a breach. Nihill was certainly aware of this problem:

I agree that there may be a different interpretation of the operation of section 208 in the light of different facts, and in particular if a person caused a nuisance in a way that was not manifestly similar to the nuisance described in the notice, or if the repeat of the nuisance took place a very long time after the notice of breach was served. In this case, I find that the breach committed on 24 July 2008 was the same as, or strikingly similar to, the previous breaches. I find that the period of time that has passed is not so long as to make it unfair or unlikely that the tenant would be aware that he was breaching the notice.

That’s all very reasonable, of course, but it treats the task of interpretation as one that can vary depending on the facts before the tribunal. As the UK tenancy cases argued, interpretation doesn’t involve declaring a statute applicable or not to a particular factual scenario, but rather developing a broad principle and seeing if the words can be interpreted to fit it. It may well be that the only way to make s. 208(1)(d) Charter-compliant (in the sense of not capturing the scenarios identified by Nihill and, in particular, providing intelligible guidance to people like IF about what they can and cannot do) is to read it in so narrow a manner that it doesn’t capture IF’s conduct in this case. As it happens, I don’t think such a narrow reading of s. 208(1)(d) was necessary in this case. Moreover, if it was, I think there’s a good argument that it would conflict with the purpose of the provision and, arguably, the Charter rights of IF’s neighbours.

The interpretation mandate is too broad a remedy to fix a provision like s. 208(1)(d) which straddles too many scenarios, sometimes limiting a tenant’s rights, other times providing crucial support for the rights of landlords and neighbours. Instead, a more appropriate remedy is the conduct mandate. The conduct mandate, in public housing cases at least, allows s. 208(1)(d) to be given a broad reading, but potentially ameliorates some of its negative effects by barring public landlords from applying it in individual cases where it would work unreasonably. The good news is that just such an argument was made by IF:

The tenant has made extensive and interesting submissions about the landlord’s obligations under the Charter. Essentially the tenant has submitted that the landlord is a “public authority” under section 4 of the Charter, and is therefore required by section 38 to act compatibly with the Charter. It must do so, submitted the tenant, when exercising its powers under the Housing Act 1983 with respect to the acquisition, disposal, development and management of land. In managing this tenancy, including making the decisions to serve a notice of breach and to apply for a compliance order, the landlord exercised these powers. According to the tenant, it did not do so in a way that was compatible with the Charter. I agree that the Director of Housing is a public authority as defined in section 4 of the Charter. This is clearly the case; the Director of Housing is a public official, and the Office of Housing (a unit of the Department of Human Services) is an entity established by a statutory provision that has functions of a public nature

The finding that the Director and the Office are public authorities is, of course, correct. 

Alas, Nihill held that, even if this argument was correct, she couldn’t do anything about it!:

After careful reflection, I do not consider that I have the jurisdiction to go behind the application made by the landlord, and review whether or not the landlord acted in a Charter compatible way in reaching the decision to make the application. In relation to this proceeding, in this jurisdiction, I can only make decisions about the provisions of the Residential Tenancies Act 1997 and the Victorian Civil and Administrative Tribunal Act 1998. The Residential Tenancies Act 1997 is very detailed. It provides jurisdiction for a wide range of decisions about residential tenancies, boarding house residencies, and caravan park residencies. It makes no distinction between private and public tenancies. It does not provide for the review of decisions made under the Housing Act 1983 by the Director of Housing.  Any challenge to the decisions of the Director of Housing made under the Housing Act would need, I think, to be brought in a different jurisdiction. The conduct of government bodies in the exercise of their decision making power is reviewable under the Administrative Law Act 1978.

If this is true, then it’s quite a problem, as it’ll mean that any public housing case will have to proceed in two courts: VCAT and the Supreme Court (and the latter is scarcely geared towards the quick informal hearings that are generally considered necessary to resolve residential tenancies disputes.) Nihill made it clear by a reference to the dreaded Sabet that her finding is a purported application of the dreaded Charter s. 39(1):

39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

So, this appears to be the first time the Charter’s remedies section has been used to deny someone a remedy.  Charter s. 39(1), you might recall, is meant to reduce the amount of litigation under the Charter; it’d be doubtful that this purpose would be achieved by forcing most public housing disputes into the Supreme Court. So, fortunately, it’s probably a doubtful ruling. Continue reading

The end of DNA database expansion

Back in March, I referred to a DNA database case before the European Court of Human Rights as the human rights case of the decade, pitting the clearest principles against the clearest practicalities. The House of Lords had unanimously ruled in favour of the practicalities, with one of the Law Lords, Simon Brown, issuing a concurrence just to say:

My concern is simply to indicate how very clear a case this seems to me to be. Indeed my only real problem now, following full investigation of the case with the assistance not only of the parties but from Liberty too, is in discerning any coherent basis on which the challenge can still be sustained.

Yesterday,  the seventeen judges of the European Court’s Grand Chamber unanimously upheld that very challenge, ruling firmly in favour of principle. It’s a stunning development that will put both DNA databases and human rights law at a crossroads.

The applicants in S & Marper v UK [2008] ECHR 1581 were both residents of Sheffield. In early 2001, at the age of 11, LS was arrested on a charge of armed robbery. Two months later, Michael Marper was arrested on a charge of harassing his partner. On June 14th, both were cleared, S by acquittal, Marper by a notice of discontinuance after he reconciled with his partner. Both then asked for their fingerprints and DNA, taken on arrest, to be destroyed, but the police refused, saying they wanted to retain the information for use in future criminal investigations. The police’s plan was made possible by a 2001 change in UK law, following an unsuccessful attempt by two people linked to crimes after their DNA should have been destroyed to challenge their convictions. The new amendment to the Police and Criminal Evidence Act (PACE) allowed the permanent retention of fingerprint and DNA samples in most circumstances:

64(1A) Where – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution.

Subsection (3) required the destruction of DNA taken from people never suspected of an offence (e.g. bystanders, such as residents of a burgled house who DNA is taken to eliminate irrelevant crime scene samples.) So, PACE s64(1A)  allowed the retention of all suspect samples, even when the suspects were cleared. S & Marper’s challenge to the police’s decision under the Human Rights Act was dismissed, in turn,  by a trial judge, the Court of Appeal (in a 2-1 decision with Lord Sedley dissenting) and the House of Lords, before today’s stunning reversal by the ECtHR.

The European Court’s decision was based on the ECHR’s right to privacy:

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The government argued that the only way that DNA can interfere with privacy is at the time of sampling (it wasn’t disputed that S & Marper were lawfully and, it seems, properly sampled) and at the time of matching to an unsolved crime (when the relevant privacy right is the unfortunate right to get away with such crimes undetected.) But the ECtHR has long held that the mere storage of data can amount to an interference with privacy, depending on its content and context.

So, is the storage of DNA and fingerprints an interference? The ECtHR held that this test was satisfied for biological material (because of the wealth of genetic information it contains), the tiny DNA profiles on databases (because they can still be used to show relatedness and ethnic origin) and (overturning an earlier ruling) fingerprints (because they are stored on a computer allowing precise identification in a variety of circumstances.) It’s a little funny that the ECtHR’s reasoning on the most significant and contentious data, DNA profiles, was tied to some relatively recent side-uses of DNA profiles: familial screening (used to trawl the database for ‘partial’ profile matches, yielding possible relatives of the source of a crime scene sample. This technique was notably used to catch the UK’s ‘shoe rapist’, who was detetected after a partial match to his sister, who was sampled after arrest for drink driving), possibly infringing family life too, and ethnicity tests (most famously used to identify London’s gerontophile rapist as Carribean, mostly likely frm the lower Winward islands.) Would cutting out these techniques save the UK database? Probably not, because the ECtHR’s reasoning on fingerprints (which have no such side-applications was based solidly on its traditional identification use, including the utility for computer assisted identification. DNA profiles, being digital, rather than analogue, are much more suited to comptuer-assisted identification (and, indeed, that is by far their primary database use.) I don’t know why the Court didn’t apply the same reasoning for both profiles and fingerprints. Anyway, the finding that retention of any of these things in an identifable form on a crime detection database breached Article 8.1 was a no-brainer (although, alas, a number of UK Law Lords failed the test.)

The really hard question is Article 8.2, i.e. justification. There’s no doubt that s64(1A) exists ‘for the prevention of disorder or crime’ (although some see the potential other uses as a big point.) But is retention ‘in accordance with the law’ and ‘necessary in a democratic society’? The ECtHR had some concerns about the former, because one of the s64(1A)’s use restrictions – ‘the prevention of.. crime’ – is alarmingly vague (ableit tracking Article 8.2 precisely!) But the Court didn’t decide that point, instead focussing on necessity. The Court, while skeptical of statistics from the UK showing the number of crimes, notably murders and rapes, supposedly solved through database matching to profiles retained from cleared suspects, acknowledged that retention would contribute to crime prevention and detection. However:

The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed…; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

The Court’s conclusion was that ‘the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.’

So, that’s the judgment. But what’s really interesting are the implications: Continue reading

The hidden dialogue on parole

Last April, SARC, reporting on the Justice Legislation Amendment Bill 2008 (which extended the ESO scheme), wrote to the Corrections Minister asking about the exemption (given the broad rights-limiting powers the Adult Parole Board can exercise) and received these responses a month later:

5. Why is the Adult Parole Board exempted from the obligation to act compatibly with human rights and to consider relevant human rights when making decisions under s16(2)? The Government decided to make the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 to exempt the APB and the Youth Parole Board from the Charter for a period of a year in order to allow the review of the impact of the Charter on these bodies’ work; and to consider the resources that would be required to ensure their compliance with the Charter.

6. Will the exemption in the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 be renewed in 2009? The work referred to above is still underway and a decision will be made before the regulations expire on 31 December 2008.

Not exactly chatty, hey?  I’ve complained previously in this blog (and elsewhere) about the silent ‘human rights dialogue’ – more correctly a ‘no human rights dialogue’ – that led to the exemption of Victoria’s three parole boards from the Charter’s obligations mandate late last year. One of the few negative comments in VEOHRC’s report card on the Charter was to make a similar complaint. The only significant public comment on this exemption is Hulls’s response to a parliamentary committee in June this year, comments that led me to wonder whether the parole boards’ concerns were based on some shonky comparative legal analysis.

I had, though, been hoping that the recently tabled Annual Report of the Adult Parole Board would be illuminating on these matters. Other reports by public authorities typically include some proud detail on how they are working to comply with the Charter. But, now that the report is available online, the only mention of the Charter is in the opening ‘message’ by Chairperson Justice Simon Whelan. (Murray Kellam, it turns out, quit in September 2007, before the exemption was enacted. Kellam was part of the court in the Court of Appeal’s human rights lowpoint to date, its Underbelly judgment. But Whelan, like most of the judges, has also had his chance to give short shrift to the Charter this year. Interestingly, his contribution was to tell off another public authority, the Registrar of Titles, for trying to comply with its obligations mandate in a dispute between two companies.)

Anyway, here’s what Whelan had to say about the Charter and parole:

The Board is currently exempt from compliance with the Charter of Human Rights and Responsibilities. The Board’s view is that this exemption, which presently expires at the end of this calendar year, was a prudent and responsible step taken by the government. There are, in the Board’s view, compelling reasons for the exemption. The Department of Justice is currently reviewing the issue and the Board is working with officers of the Department in that review. The Board is confident that there will be a satisfactory outcome which will ensure that important features of the Board’s practices are preserved.

Oops. He forgot to add ‘and ensure that Parliament’s objective of promoting all human rights, including those of prisoners, parolees, victims and other stake-holders in the parole systemn, are met’ a the end there. But I’m sure that’s implicit. Alas, also left implicit and mysterious are the reasons why the exemption was ‘prudent and responsible’ (responsible?) and what those ‘compelling reasons’ are. Continue reading