The gap in Charter rights for children

A County Court judge has raised a concern about a gap in the Charter, according to The Age:

A JUDGE fears that protections for young offenders under Victoria’s charter of human rights face possible “destruction” because of frequent delays in the court system. County Court Judge John Barnett said yesterday that delays meant it was common for people to be sentenced as adults for offences committed as youths. He said it was strongly arguable that such situations breached the Charter of Human Rights and Responsibilities.

Judge Barnett yesterday sentenced Brent Carl Ryan, 21, to a community-based order after he pleaded guilty to a charge of affray over an incident in July 2004, when he was 17. Judge Barnett said that Ryan’s case, although promptly investigated, took nearly four years to get to court. As a result, Ryan “lost the opportunity of being sentenced to a youth training centre”. The judge said he was greatly concerned about youth binge drinking, but was more concerned about the “delay of proceedings we are experiencing in this state”.

Although the charter did not exist at the time of Ryan’s offence, and he was then not a “child in the eyes of the law”, the “same cannot be said if a similar case were to arise in the near future”. “When a child loses the right to be sentenced under those procedures that take account of the child’s age and the desirability of promoting the child’s rehabilitation — namely the youth training centre — their rights (under the charter) have been destroyed.”

The judge’s comments appear to raise these provisions of the Charter:

3(1) child means a person under 18 years of age

23(3) A child who has been convicted of an offence must be treated in a way that
is appropriate for his or her age.

25(3) A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.

A tricky problem in juvenile children’s justice is that being a child is a transient phenomenon. Children age and become adults. When that happens while the criminal justice system is still proceeding, do you treat them according to who they were or who they are? Continue reading

Could the Charter reduce Victorians’ rights?

A key claim of proponents of human rights statutes is that such statutes can only improve people’s human rights. We can never lose rights.

As is the norm, the Charter gives this claim legislative force in Charter s.5:

A right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.

This section ensures that we won’t lose our rights simply because they are omitted from the Charter.

However, this leaves a loophole: we might still lose our rights because they are included in the Charter. In a comment on three recent criminal appeal cases published in this month’s Public Law Review, I argue that such an approach was taken by the High Court last year in relation to a number of narrower human rights laws.

The case was Carr v Western Australia [2007] HCA 47. Carr is a moron who, after denying his involvement in a bank robbery during a formal police interview, cheerfully boasted about his prowess (at both bank robbery and interviewing) to his interviewers, unaware that he was being taped on the lock-up’s CCTV. The legal issue mainly involved the interpretation of the WA statute for mandatory recording of confessions. (Incidentally, the High Court interpreted that statute’s exclusionary rule very narrowly, bizarrely claiming that doing so would improve the integrity of WA policing.) However, the High Court took the opportunity (unasked for by the parties to the appeal) to rule that there was no common law rule that the police’s failure to caution Carr or offer him a lawyer could itself require the exclusion of his confession. Why? Because some parliaments had enacted statutes promoting just such a rule: Continue reading