SARC on dust, death and dodgy fish

The Scrutiny of Acts and Regulations Committee’s 13th Alert Digest for the year (considering a record number of bills, at least in recent years) highlights three Charter issues:

  • Asbestos Diseases Compensation Bill: SARC queries whether the new procedures designed to take account of the lengthy latency and fatal result of asbestos diseases should be extended to cover non-asbestos diseases with similar charcateristics, pursuant to the Charter right to equal and effective protection against (impairment) discrimination.
  • Coroners BIll: SARC expresses its concern that the Bill will amend the Charter’s definition of ‘court’ to cover the newly created Coroners Court, thus bringing the new body within the Charter’s partial exemption for courts and tribunals from the conduct mandate (despite the new body having no role in either developing the common law or resolving private disputes.) SARC will ask the Attorney-General what the (exempt) non-administrative capacities of the Coroners Court would be and whether there are any ‘exceptional circumstances’ (a la the override provision) that justify a permanent narrowing of the Charter’s protection for human rights.
  • Primary Industries Legislation Amendment BIll: SARC commends an excellent statement of compatibility, but also has (what, for it, are) strong words about one provision, which significantly extends an existing offence of selling or possessing an illegally taken fish to cover selling or possessing a fish that has ever been illegally ‘dealt with’ under any Australian law. ‘Dealt with’ includes just about anything anyone ever does with the fish, including transporting and possessing it.  SARC has two concerns: First, that the existing offence includes a reverse onus on the issue of whether the defendant knew or ought to have known of the illegality. This is especially concerning, because the offence applies to consumers, not just commercial operators, and it carries a potential six month sentence. Second, the headings of both the existing provision and the amendment only refer to sale, not possession, so people who plan to possess a fish will have to read the text of the provision to know that they risk prison unless they can prove that they didn’t know about any illegal dealings. The strong words:

The Committee therefore considers that clause 68 may be incompatible with the Charter.

 SARC referred the issue of compatibility with Charter s. 25(1) to parliament and will write to the Miister about the headings (and the otherwise excellent statement of compatibility.)

The Charter and committals

Tony Mokbel, perhaps alone amongst the alleged gangsters from Victoria’s underbelly, will have at least some of his charges resolved in proceedings governed by the Charter, assuming the judges running his case get the date right in Charter s. 49(2):

[I]n February and March 2006, the plaintiff was tried in the Supreme Court on one count of importation into Australia of a prohibited import, namely cocaine, in November 2000, contrary to s 233B(1)(d) of the Customs Act 1901. After the conclusion of evidence, and during the Crown Prosecutor’s address, the accused absconded while still on bail….

Between 27 February 2007 and 20 June 2007, Victoria Police filed in the Magistrates’ Court a further 15 charges against the plaintiff. Those charges included two charges of murder and five charges of trafficking in a large commercial quantity of a drug of dependence. The plaintiff was arrested in Greece on 5 June 2007.

However, Mokbel’s attempt to head-off his coming criminal trials failed yesterday.  In Mokbel v DPP (Vic) & Ors [2008] VSC 433, Justice Stephen Kaye knocked back an application for a stay based on Mokbel’s extradition occurring while his action before the European Court of Human Rights resisting the extradition was unresolved.  Presumably, Mokbel’s Charter action would have been based on his lawyer Mirko Bagaric’s argument that pre-trial publicity means that he cannot have a fair trial.  The ruling didn’t discuss the Charter, but Kaye’s rulings carry mixed news for any furture reliance on the Charter’s fair hearing right.

Kaye’s main holding was that the remedy of a stay for abuse of process is not available for committals. One of the two lynch-pins of his decision is good news for criminal defendans wishing to raise the Charter:

It is useful to commence with the appropriate characterisation of committal proceedings. In Phelan v Allen, the Full Court held that a stipendiary magistrate, in a committal proceeding, exercises a ministerial, and not judicial function, and accordingly an order by him striking out the information and discharging the defendant might not be the subject of judicial review under s 155(1) of the Justices Act 1958. In Grassby v R, the High Court held that a magistrate does not have power to stay committal proceedings as an abuse of process. In reaching that conclusion, Dawson J (with whom Mason CJ and Brennan, Deane and Toohey JJ agreed) recognised that it had been “consistently held” that committal proceedings do not constitute a judicial inquiry, but “ … are conducted in the exercise of an executive or ministerial function”. As such, the role of a magistrate or justice in holding a committal is essentially inquisitorial and administrative. Finally, in Potter v Tural; Campbell v Bah, two defendants sought judicial review of the decision of the magistrate refusing leave to cross-examine certain witnesses in the course of criminal proceedings against them. On review, the primary judge quashed the decisions of the magistrate. That decision was reversed by the Court of Appeal. Batt JA (with whom Tadgell and Callaway JJA agreed) commenced his reasons by stating: “It is established by a long line of authority in Victoria that a magistrate’s order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari … or to appeal under statutory appeal procedures replacing certiorari.”

So, committals aren’t judicial, but are rather ‘ministerial’. Kaye distinguished UK committals on the ground that they determine whether or not charges will go ahead; Australian committals, by contrast, are neither here nor there: an Australian prosecutor can ignore both a positive ruling at a committal (by entering a nolle prosequi) or a negative one (by commencing anex officio indictment.) The point of Australian committals is a bit of a mystery, and they are mostly justified by the opportunity they give defendants for discovery of the case against them.

This issue is relevant to Charter matters, because of the dreaded Charter s. 4(1)(j) partial exemption for courts and tribunals from the conduct mandate:

4(1) For the purposes of this Charter, a public authority… does not include-… (j) a court or tribunal except when it is acting in an administrative capacity;…

Note Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

Doubtless, the combination of these rulings and the note to Charter s. 4(1)(j) will be taken to have basically settled the matter. And that’s basically a good thing, as the Charter s. 4(1)(j) is stupid anyway. But I think that there is still room for doubt. Continue reading

Tribunals under the Charter

Thanks to Phil Lynch for sending me two old but previously unpublished Charter decisions by the Mental Health Review Board.

One, MHRB [2008] 08-133, is an early instance (from late February) of the unfortunate trend of decision-makers addressing a human rights issue solely in terms of Charter s. 7(2) and, inevitably, finding that the test is satisfied. The MHRB, noting its obligations under Charter s. 32 with regards to interpreting legislation, itself raised the concern that compelling a paranoid schizophrenic to undergo a fortnight injection (from a doctor she regarded, naturally, as persecuting her) was cruel, inhuman, degrading and non-consensual. But it concluded:

The Board’s view is that the severity and longevity of P’s illness (which it has found renders her incapable of giving (or refusing to give) informed consent to her treatment), together with the significant risks to her mental and physical health and significant social relationships, make it reasonable to limit P’s human rights in this instance.

I don’t doubt the MHRB’s sincerity here, but anyone who thinks that this is bland instance of self-assessment is a ‘human rights culture’ is kidding themselves. As I’ve argued repeatedly in this blog, Charter s. 7(2) is a tool for assessing laws, not conduct. The MHRB didn’t consider any of the terms of the Mental Health Act, so it wasn’t assessing laws. Instead, the relevant inquiry should have been whether the treating doctor or the MHRB was bound by the conduct mandate and, if so, whether it had a defence  under Charter s. 38(2).  In short, the relevant question for the MHRB is whether the obvious limitation of P’s rights was the only reasonable option under the governing law.

The other decision, MHRB [2008] 08-106, is dated 7 January 2008 (although the hearing that produced the reasons is dated 9 January 2008. Oops.) Either way, it beats Gray v DPP by a week or so as the first ever Charter judgment in the Charter’s fully active mode. And P, a man with a troubled combination of intellectual disability, mental health issues, substance abuse, anti-social behaviour and sexually transmitted diseases, beats Nick Corcoris as the first person to be denied the benefit of the Charter’s operative provisions. In this case, the Mental Health Legal Centre made a ‘Charter challenge’ against the use of injections on P, who is scared of them, again an obvious breach of his rghts against non-consensual medical treatment. The MHRB held:

[T]he Board has no power under the Charter to determine the compatibility of the Act, or any provisions of the Act, with the Charter, nor to declare particular decisions or actions to be in breach of specific Charter rights. Save for the s32 requirement in respect of the interpretation of laws, the Charter does not change the Board’s substantive decision-making role under the Act.

The Board’s point is basically that the Charter doesn’t contain any direct remedies for rights breaches and certainly doesn’t give the tribunal the power to give such a remedy. Indeed. But the Board’s analysis seems to downplay the differences the Charter can make:

  • Interpretation: The Board acknowledges its new interpretative role, but then claims that it can’t determine the compatibility of the Mental Health Act with the Charter. It’swrong. Whenever the Board applies the MHA, it is obliged to think about its compatibility with the Charter and, if there is a problem, to re-interpret wherever possible. Charter s. 6(2)(b) gives all tribunals functions under Division 2 of Part 3, including interpretation. And Charter s. 3(2) defines functions to include powers and duties. So, Board, do your duty!
  • Obligations of doctors: The Board makes this interesting claim:

[A]s a public authority, the Charter will require individual treating teams in area mental health services to take Charter rights into account when making… treatment decisions.

I don’t know enough about the legal and social basis of mental health services to know whether this claim is correct. Maybe mental health services are statutory bodies? If not, the argument has to be that they perform a public function on behalf of the State of Victoria. Not all doctors fit that description, but clearly some will. Anyway, if true, then doctors are not merely required to take rights ‘into account’ but to act compatibly with them, subject to the defences to Charter s. 38. The Board however says that that isn’t its problem:

Since its early days, the Board has taken the view that the specific type and mode of treatment provided to an involuntary patient is a matter of clinical judgment that should be determined by the treating team, in consultation with the patient, as part of the treatment planning process… In the Board’s view, the Charter has not altered that basic position, and the Board has no power to, nor should it, make treatment decisions in individual cases.

This might be good policy, but the Board hasn’t done the right analysis to conclude whether or not it is good law. If doctors are breaching their conduct mandate, then they are acting unlawfully. The question isn’t whether Boards should interfere with a clinical judgment, but whether they should test to see whether the treatment team is complying with the law. Arguably, legislation that doesn’t allow a tribunal to review whether or not behaviour is unlawful is itself incompatible with the Charter s. 7(2) test governing limitations on rights. So, the question then is whether the terms of the Mental Health Act can be reinterpreted to give the MHRB such a review role. (The MHA’s appeal and review criteria are pretty strict, so maybe not.)

None of this would be a problem if the MHRB were itself subject to the conduct mandate. But the MHRB held that it wasn’t: Continue reading

VCAT vs the conduct mandate

Deputy President McKenzie’s judgment in BAE Systems Australia Ltd [2008] VCAT 1799 is significant as the first judgment on  the definition of a public authority  the Charter s. 38(2) defence to the conduct mandate and the scope of Charter s. 39, all issues dear to my heart.

Interestingly, the issue of the applicability of the conduct mandate seems to have been raised by BAE itself (with VEOHRC, it seems, missing in action on this point.):

BAE also made submissions about whether it might be a ‘public authority’ within the meaning of the Charter. In summary, and with certain exceptions, s38 of the Charter makes it unlawful for a public authority to act in a way incompatible with a human right or, in making a decision, not to give proper consideration to a relevant human right. Assuming (without deciding) that BAE is a public authority, this exemption would apply to BAE’s conduct from the date on which the exemption was published in the Government Gazette until the exemption expires. I have considered whether BAE, when it acts as the exemption permits it to do, would be acting incompatibly with a human right and in breach of s38 of the Charter.

Despite having dubiously held that neither the interpretation nor conduct mandates applied to herself, by virtue of BAE’s Christmas Eve application, McKenzie thought that the possible application of the conduct mandate to BAE might affect whether or not she should grant an exemption:

I do not accept BAE’s submission that I cannot consider whether BAE is a public authority until it acts under the exemption and someone raises that conduct under s39 of the Charter. It is clearly relevant, in considering whether or not to grant this exemption, to consider whether the Charter would apply to the conduct which BAE seeks to be exempt from the EO Act, and whether, if it is a public authority in respect of that conduct and obliged to act compatibly with human rights, it would be inconsistent with that obligation and the Charter to grant the exemption. I do not consider that the Charter affects the determination of this proceeding or the operation of any exemption granted.

At least, I think that’s what she held. Who knows where that last sentence fits in? The more I contemplate it, the less McKenize’s approach to Charter s. 2 makes sense to me. Anyway. BAE’s argument about Charter s. 39 seems to take the approach that that section is the exclusive means by which Charter s. 38 operates. McKenzie’s view appears to be that Charter s. 39 only governs when someone (e.g. a BAE employee with an unlucky nationality) can seek a ‘relief or remedy’ for a Charter s. 38 breach. See my discussion of this tricky and highly ambiguous issue here.

Now, onto the question of whether BAE, a private defence company, is a public authority. Here’s 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); or…

The rest of the list are named  entities (and not BAE.) Obviously, the only one that BAE could fall within is Charter s. 4(1)(c). Here’s McKenzie’s analysis:

It should not be assumed that I agree with BAE’s submission that it is merely a commercial supplier of goods and services to the Australian Department of Defence and so not a ‘public authority’ within the meaning of s4 of the Charter. In my view, it is arguable that what BAE does in providing services and designing, producing and maintaining land, air, space and sea defence systems for that Department might be a function of a public nature performed on behalf of the Commonwealth. It might be characterised as a function connected to or generally identified with functions of government.

A bold argument, but totally wrong. Continue reading

The right to orgy

I wasn’t really expecting this to become a sex, planning and mental health blog, but what can I do? Today’s long expected decision upholding Max Mosley’s claim for breach of confidence against the venerable News of the World is a key example of a statutory human rights law having a transformative role on ordinary law and, through it, ordinary life. It’s possible that, with this case, the UK tabloids will reel back some of their most intrusive reporting on British celebrities. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 is a perfect example for Bob Carr and James Allan to use to criticise the horror of rights-crazed activist judges. Off you go! [EDIT: And now Allan has. Naturally, his column downplays the judge’s finding that the NotW was wrong about the ‘Nazi’ claim, as such factual issues get in the way of Allan’s agenda of portraying all human rights cases as exclusively about values. .]

Mosley’s celebrity status is (or, more accurately, was) due to his Presidency of the FIA, which runs Formula One racing (including Melbourne’s own Grand Prix? Beats me.) This, it seems, was reason enough (if a reason was needed) for NotW to expose Mosley’s penchant for S&M, complete with pun-laden front-page and inside-the-fold spreads (“THE PITS!”), photos (“TEA-TIME: Mosley after orgy) and, on its website, video footage of a couple of recent get-togethers (albeit with the naughty bits sensitively obscured by chequered flags.) Unsurprisingly, Eady J found that this engaged Mosely’s right to privacy under the ECHR, which is similar to Victoria’s Charter s. 13(a):

13 A person has the right- (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with…

Eady found that sexual conduct in private is (or, in Mosley’s case, was) pretty damn private and that clandestine recordings are a pretty big interference. He rejected arguments that Mosley’s orgies weren’t so private, due to the involvement of multiple people, video cameras and money. He also noted that a NotW journalist’s subsequent threats to name other paid participants in the orgy unless they gave an interview was also a breach of their human rights (not to mention, most likely, the law on extortion.) The significance of this is that it brought Mosley’s claim within the modern human-rights-crazed British law of confidentiality, which now protects confidentiality even when there’s no pre-existing relationship between the claimant and the defendant. (It should be noted, though, that Eady also found that Mosley’s claim was also within old-style confidentiality law, due to his contract with the rogue hooker – woman E – who spilt the beans to NotW for £25,000.)

That wasn’t the end of the matter, of course, as NotW could rely on a human right of its (or, more precisely, its readers’) own, the ECHR equivalent to Charter s. 15(2):

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds…

The balancing of privacy and expression came down to whether there was a public interest in Mosley’s private practices. Eady quickly dispatched of NotW’s claims that Mosley’s parties needed to be outed for their criminality, depravity and adultery. (Mosley’s wife was the only one with a particular interest in the latter.) But NotW had another angle, both in its papers and in court: that Mosley’s parties were, NotW alleged, Nazi-themed. This fact gained some significance in Mosley’s case because, according to NotW, his family had Nazi links: indeed his parents were married at Goebbels’s place with Hitler as a guest of honour.

Alas, for NotW, Woman E didn’t testify at the hearing, so the paper had to rely on the video. Eady’s approach was to studiously compare the video (of an alleged concentration camp scenario) to actual life in a concentration camp. The role-playing failed to match-up, what with the ‘judicial scenario’ (Mosley was apparently in a concentration camp for crimes, rather than ethnicity); the English names for various players; and even the horizontally striped uniforms (whereas the real camps used less flattering vertical stripes.) There was, of course, the small matter that various conversations occurred in German (albeit with sexual, rather than genocidal, content) and that one of the women yelled out that she was ‘an Aryan blonde’ (although that followed another woman’s claim that “Brunettes rule!”, which doesn’t entirely capture the full philosophy of Mein Kampf.) But, as Eady sensibly pointed out, if Mosley had wanted a Nazi theme, then there were plenty of places in Britain where he could get actual Nazi costumes (as all royal followers well know.) The result: he got a tidy damages pay-out and NotW were also up for Mosley’s yooge legal fees. (NotW avoided exemplary damages, though, because Eady accepted that they really did think Mosely was a Nazi.)

So, does that mean that Victorian celebrity S&Mers can now orgy with peace of mind? Alas, no, due to the technical human rights issue of ‘horizontal effect’. Continue reading

A judgment at last!

Many thanks to Phil Lynch at HRLRC for forwarding me a judgment of the Mental Health Review Board, brought down on Tuesday. And here’s the excitement: of its 43 pages and 247 paragraphs, about half of them  – particularly 12 pages and 53 paragraphs of actual analysis by the Board – aredevoted to the Charter. That is easily more Charter analysis than has appeared in all the reported Charter judgments in Victoria combined. In fact, I’m pretty sure that it’s more than anything that has appeared in all the ACT judgments on the HRA combined as well. It is, in short, what I’ve long been waiting for: a detailed, step-by-step, analysis of some key operational and rights provisions of the Charter in an actual contested tral, where it’s obvious that both parties have made full arguments on these points and the decision-maker has taken those arguments seriously.

The downsides: It’s not a formal precedent in any way, as the MHRB is not a court. Indeed, the MHRB doesn’t even have to be comprised of lawyers, though any questions of law must be resolved by the Board’s legal member, in this case a Mr John Lesser. On the other hand, lawyers represented each side and the Attorney-General intervened and was made a party. The judgment doesn’t carry an official name and is not available on Austlii (whose database on MHRB judgments seems to have died sometime in 2006.) Nor is it available on the MHRB website. But perhaps it’ll be posted on the HRLRC website or somewhere soon enough. Anyway, I have it, thanks to Phil Lynch. [EDIT: Alas, the judgment isn’t publishable as it needs anonymising. I’ll refer to the man involved as ‘the respondent’, until I can come up with something better. For a detailed description and critique of the judgment, see Lynch’s analysis. FURTHER UPDATE: The anonymised judgment has now been published here.]

Here’s the short summary (and it’s a weird and new experience indeed to have more than two lines to ‘summarise’; it took me over an hour to read the thing once, and I will need to read it several times more!):

Back in 2005, the respondent was placed on a community treatment order (CTO) by his psychiatrist. CTOs are the mildest form of coercive power used against people with mental illnesses and are available when people have been made the subject of an involuntary treatment order (which can authorise someone’s detention for the purpose of being treatment) but a psychiatrist decides that detention isn’t necessary:

14(2) A community treatment order is an order requiring the person to obtain treatment for their mental illness while not detained in an approved mental health service.

(3) A community treatment order- (a) must specify the duration of the order, which must not exceed 12 months; and (b) may specify where the person must live, if this is necessary for the treatment of the person’s mental illness.

Clearly,  ‘Mildest’ doesn’t mean ‘mild’.  The respondent in particular is very unhappy about his and wants out of it, so he can stop taking his medication and move on to milder treatment like valium.

CTOs expire twelve months after they are made but they can be extended. GK’s CTO has been extended three times: in April 2006 (by the MHRB), in February 2007 (by the respondent’s psychiatrist) and January 2008 (again by his psychiatrist.) The problem is at the February extension was never reviewed by the MHRB as required by this provision of the Mental Health Act 1986:

30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.

As is often the way, s30(4) doesn’t specify any consequences for breach. The respondent argues that the breach meant that his CTO expired sometime in 2007 and that the purported extension in 2008 and the planned review of it by the MHRB that was about to happen couldn’t happen, with the result that GK is free to stop taking his medication until his psychiatrist restarts the whole process. But the alternative argument is that nothing happened to the CTO and GK remains subject to a CTO. So, the principal (but not sole) question for the MHRB is a question of statutory interpretation: what are the consequences of a breach of s30(4) of the Mental Health Act 1986? This question is a tricky one in statutory interpretation and their are competing High Court cases on the issue. Applying non-Charter law, the MHRB, perhaps unsurprisingly, rejected the respondent’s interpretation. But what difference does the Charter make? Continue reading

The right to Ned

It’s been a big week for Victorian icons and human rights. On Tuesday, an anonymous local reportedly attended a meeting of the Hepburn Shire Council to protest rate rises and the ensuing gentrification of Victoria’s spa country by Melbournians. Carrying a placard to that effect (albeit wordier), he underlined his point by borrowing a friend’s Ned Kelly mask – always handy to have one of those around – to ensure that his point got attention. In a way, his plan worked very well. His protest would doubtless have been ignored, were it not for the decision of the Council to shut down the meeting, citing Ned’s refusal to remove his mask as intimidatory. Indeed, Ned would surely have had the advantage if it came to a firefight.

Both sides to this dispute cited legal precedent. Ned claimed that the Australian Constitution gave priority to locals over newcomers like Hepburn Mayor Heyes. (Must be somewhere in Chapter 3.) The Council claimed that no legislatures in Australia had to put up with masked protesters. But, for once, the law is on Ned’s side. There’s the implied freedom of political communication, of course, but what about the Charter (another young upstart law?) I would have thought that the combination of these three sections means that Hepburn Shire Council’s conduct was on the nose: Continue reading