Lost in transition

On October 3rd, Carolyn Evans spoke at the annual ‘Protecting Human Rights’ conference about the Charter litigation to date and pointed out Victorian judges’ and tribunal members’ troubling inability to get a simple date right when reading Charter s. 49(2), a matter that this blog has given a lot of attention. The day before, the Charter’s appalling transitional provision was being debated in the Supreme Court, in a hearing enhanced by the Attorney-General’s intervention. And, just one week later, another misreading for Evans’s list, in Devine & Legg v VCAT [2008] VSC 410.

Readers of this blog will know Charter s. 49(2) by heart:

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

And here’s what Justice David Beach had to say about the application of the Charter:

The Charter has no direct application in this case. The VCAT proceeding was commenced and concluded prior to the operative commencement date of Division 3 of Part 3 of the Charter. This proposition is not contested by the plaintiffs. The plaintiffs now rely on the decisions of Tomasevic v Travaglini and DPP v TY (No.3) as authority for the propositions that the rights in the Charter “apply in substance” prior to the Charter’s commencement date by “operation of international law on Victorian law directly”. Whilst the Attorney General contends that this is an over-simplification of the principles expressed by Bell J in Tomasevic, the Attorney General accepts that the body of international covenants from which the relevant rights in the Charter are drawn may be used as an interpretive aid and, in appropriate cases, as a relevant consideration in the exercise of judicial powers and discretions. Further, there is no issue between the parties that the common law has long recognised a right to a fair trial.

This is, for what it’s worth, a new wrinkle in the sad history of misreadings of Charter s. 49(2): instead of simply wrongly assuming that Part 2 commenced the same time as Divisions 3 and 4 of Part 3, Beach just replaces the words ‘Part 2′ with “Division 3 of Part 3’. The result is the same: the reach of the Charter’s appalling transitional provision for proceedings is extended by a year. It’s true that, unfortunately, Devine & Legg (or, more precisely, Victoria Legal Aid) apparently joined in the error. But why on earth didn’t Beach listen to the Attorney-General, who intervened as of right in the proceedings under Charter s. 35 just so the Supreme Court wouldn’t be misled by bad lawyering?

Now, some people will say that Beach J still got the right result. After all, didn’t the VCAT proceedings over racial vilification commence in 2005? Well, they did, but that wasn’t the matter before Beach. Continue reading

An Un-Chartered conviction

A development I have long feared has come to pass:  a guilty verdict in a Victorian criminal case has been upheld despite a Charter argument that might have led to an acquittal. This year, most criminal cases where the Charter has been considered have been interlocutory or collateral matters: bail, DNA sampling, proceeds of crime, trial process, etc. The one exception was DPP v Zierk [2008] VSC 184, where the Charter was held not to apply (and Warren CJ, of course, made it clear that she’d blow it off anyway even if it had) but the defendant was nevertheless acquitted on ordinary statutory interpretation grounds.

Not so in Howe & Ors v Harvey; DPP v Tinkler & Ors [2008] VSCA 181, where the Court of Appeal upheld five findings by the Magistrates Court of breaches of s26 of the (since repealed) Children and Young Persons Act 1989, which provided:

26(1) A person must not publish or cause to be published—

(a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of— (i) the particular venue of the Children’s Court, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, in which the proceeding was heard; or (ii) a child or other party to the proceeding; or (iii) a witness in the proceeding; or

(b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or

(c) except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.


(a) In the case of a body corporate – 500 penalty units.

(b) In any other case – 100 penalty units or imprisonment for 2 years

The case concerned stories (arising in a chain of events recounted by Media Watch here) in the Herald Sun, Today Tonight and Sunrise to the effect that a 14-year old had ‘won a divorce from his mother… on the grounds of irreconcilable differences.’, accompanied by the usual blather about crazy authorities, spoilt brats and parents’ rights. The child had obtained a protection order from the Children’s Court under the then s84 of the CYPA (now s274 of the Children, Young Persons and Families Act 2005.)

Crucially, the various reports gave the child’s name and showed his photo, so it might seem a no-brainer that they breached s26. However, the Court of Appeal expressly ruled that s26(1)(a), at least, was ambiguous in one very relevant respect: does the ban only cover reports that identify the proceedings as Children’s (or related) Court proceedings, or does it extend to the situation here, where the reports only mentioned the outcome of the process and either didn’t mention the Children’s Court or buried it in a reference to ‘the authorities’.? The defendants pointed to numerous decisions elsewhere in Australia and overseas that read similar (but not identical) provisions narrowly, e.g. confining them to narrative accounts of proceedings or to photos while a proceeding was ongoing or to revelations that would have been understood by an ordinary member of the public. In each case, a narrower reading could arguably have meant that the various reports weren’t in breach of the section and, therefore, that the guilty verdicts were wrong.

It might also be thought that the defendants may gain little help from the Charter, because their rights are not the only ones at stake. Charter free expression is balanced against others’ rights, both internally and in two other express rights:

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, whether within or outside Victoria…

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

24(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

However, the defendants drew on powerful arguments from the case-law to the effect that a narrow reading of s26 is the appropriate way to strike the balance.

Notably, in Clayton v Clayton [2006] EWCA Civ 878, the UK Court of Appeal gave a narrow reading to a provision that was similar to s26(1)(b) (confining it to ongoing procedures), on three grounds. First, that a decision by the relevant court on a case-by-case basis (available under inherent jurisdiction) was preferable to a blanket decision. (Victoria’s Children’s Court has the power to suppress individual proceedings, whether or not s26 applies, derived from the powers of the Magistrates Court.) Second, that a blanket, open-ended and ambiguous ban would fail the ‘lawful restriction’ test for limits on human rights, while a specific ban issued by the court in question would make it clear to everyone what publications were permitted.  Third, that the penal context – note that s26 carries a potential prison sentence – meant that ambiguities should be resolved in favour of a narrower reading of a criminal provision. These concerns are all familiar parts of human rights law that are routinely applied to resolve difficult conflicts between competing rights and interests and, indeed, the UK case was expressly concerned with the balance between free speech and children’s privacy rights.

So, actually, it’s surely a no-brainer that, at least in the resolution of statutory interpretation questions that the Victorian Court of Appeal considered ambiguous, close attention should be paid to cases like Clayton v Clayton pursuant to Charter s. 32:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

Alas, no:

Clayton can be distinguished on the basis that the Court of Appeal was required to interpret the legislation consistently with the European Convention… In the instant case, it was not contended in oral submissions that the Charter of Human Rights and Responsibilities Act 2006 should be applied in interpreting s 26(1), so the same considerations do not apply.

Oh dear. Continue reading

Do hospitals have rights?

The Charter has made the front page of the Age twice in two days, both curiously on the issue of abortion, despite Charter s. 48, which provides that nothing in the Charter ‘affects any law applicable to abortion or child destruction.’ While the Minister took the view that Charter s. 48 removes any obligation to provide a statement of compatibility (and hence none was provided), SARC questioned whether Charter s.48 has any impact on the debate over bills, which aren’t laws and aren’t affected by the Charter.

Possibly to the surprise of some, the Charter has been raised almost exclusively by the pro-life side of the debate. They’ve picked their issue cleverly, focusing not on the abstract debate about whether or not foetuses have human rights but instead on Charter s. 14:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including- (a) the freedom to have or to adopt a religion or belief of his or her choice; and (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Catholic Archbishop Denis Hart wrote, in a ‘pastoral letter’:

The Bill is an unprecedented attack on the freedom to hold and exercise fundamental religious beliefs. It makes a mockery of the Victorian Charter of Human Rights and the Equal Opportunity Act in that it requires health professionals with a conscientious objection to abortion to refer patients seeking an abortion to other health professionals who do not have such objections. It also requires health professionals with a conscientious objection to abortion to perform an abortion in whatever is deemed an emergency. The Bill is clearly intended to require Catholic hospitals to permit the referral of women for abortions…

Catholic hospitals and the large number of Victorians they serve are also in a vulnerable position. Catholic hospitals will not perform abortions and will not provide referrals for the purpose of abortion. If this provision is passed it will be an outrageous attack on our service to the community and contrary to Catholic ethical codes. It will leave Catholic hospitals and doctors with a conscientious objection to abortion in a position where they will be acting contrary to the law if they act in accordance with their deeply held moral convictions. This Bill poses a real threat to the continued existence of Catholic hospitals. Under these circumstances, it is difficult to foresee how Catholic hospitals could continue to operate maternity or emergency departments in this state in their current form.

In an op-ed in today’s Age, Liberty Victoria Vice-President Anne O’Rourke responds to this Charter claim:

The Victorian Charter of Human Rights and Responsibilities does indeed guarantee a right to freedom of thought, conscience, religion and belief, as Archbishop Hart points out. There are two errors in his claim, however. The first is that only human beings, not hospitals or related entities, have human rights

O’Rourke here relies on Charter s. 6(1), which provides that ‘[o]nly persons have human rights’. This provision reflects traditional human rights advocates’ dislike of corporations. Indeed, the Victorian Law Reform Commission, whose recommendations are responsible for the Abortion Law Reform Bill’s ‘conscience clause’, expressly adopted this prejudice as a reason to reject the approach taken in Western Australia of providing every ‘person, hospital, health institution, other institution or service’ with a conscience clause. The VLRC wrote:

As freedom of conscience is generally understood to be held by individuals, the conscience
provision should not extend to corporations. This is consistent with existing conscience
provisions in other Victorian laws. The danger in extending the provision to institutions is that it may establish a precedent of corporations holding interests that could be categorised as human rights. This could lead to perverse outcomes.

What are those ‘perverse outcomes’? A footnote explains:

See, eg, RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199. Free speech extends to commercial speech—tobacco advertising laws contravened freedom of expression. There is no reason to extend the provision to organisations because the new law of abortion will not establish a positive duty to perform abortions.

Yes, that old furphy, the supposedly controversial extension of freedom of expression to commercial – not corporate – speech. Not only was the Supreme Court of Canada’s decision in that case entirely correct – tobacco sellers were barred from saying that required health warnings were from the government, not them; and the Canadian government declined to provide any evidence for why less broad bans would fail to achieve the desired effect; remedying both defects led to the Supreme Court upholding the new law – but it is, at best, an argument for restritcing free expression, not other rights. The real gripe of Australian human rights advocates with the Canadian case, and corporations in general, isn’t any analysis of the decision – there’s NEVER anything more than a footnote – but anger that the Canadian government’s shoddy lawyering gave the anti-Charter mob a free kick. While the rejection of corporate human rights is sometimes belatedly justified by their supposed power (and hence the potential for them to ‘abuse’ human rights), that objection is scarcely applicable to all non-human entities. Since when have hospitals and health providers been deep pocketed abusers of legal rights?

O’Rourke’s reliance on the limitation of human rights to humans is transparently specious in this case. No-one’s claiming that the hospitals (e.g. the building?) have a freedom of conscience. Rather, Hart’s claim is made on behalf of the many human beings with a stake in such hospitals, including donors, managers, employees, patients and Catholics in general. Indeed, Charter s. 14(1)(b) expressly refers to people demonstrating their believes ‘as part of a community’. O’Rourke (like the VLRC) does the pro-choice side an enormous disservice by relying on a miserly technical knockout, especially one whose flaws are transparent to lay people. Liberty Victoria ought to disown this risible use of Charter s. 6(1).

O’Rourke is on much stronger ground in relation to her second argument, based on Charter s. 7(2): Continue reading

The Charter in planning hearings

Another VCAT Charter case has appeared on Austlii. Carwoode Pty Ltd v Cardinia SC (Red Dot) [2008] VCAT 1334 probably won’t appear on anyone’s list of great Charter moments. The case is a VCAT determination of a planning application to build some new ‘service centres’ at the Pakenham bypass. The local council sat on the application too long and VCAT ruled that the centres can be built, lauding their encouragement of drivers to take a break and dismissing their impact on the local Growling Grass Frog population, although the tribunal felt that the centres were a bit over the top in their plans for multiple food outlets and separate drive through facilities.

 The facts don’t exactly scream Charter, nor do the main parties, neither of whom have rights under Charter s. 6(1):

6(1) Only persons have human rights. All persons have the human rights set out in Part 2.

Note Corporations do not have human rights.

But the objectors to the plan included two families (human beings, I assume) who owned nearby land, one of whom – the Hockings – brought a Senior Counsel to the hearing. David Denton SC raised quite a storm, arguing that VCAT had no jurisdiction due to earlier intervention by the Commonwealth on behalf of the frogs (an objection made six days into the planning hearing), spending an entire day cross-examining the applicant’s ecology expert on the subject of those frogs (to little effect, according to VCAT) and accusing him of improperly withholding information.

The Charter comes in because Denton also raised a slew of objections about the conduct of the hearing, complaining that the VCAT members had made an unaccompanied visit to the bypass site, that the order of proceedings left him having to address the court while unaware of the other parties’ submissions and that Tribunal invited written submissions on its preliminary views four days into the hearing. The Tribunal found that these procedures were all authorised by various sections of the VCAT Act:

80(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

97 The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

98(1) The Tribunal- (a) is bound by the rules of natural justice; (b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures; (c) may inform itself on any matter as it sees fit; (d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

129(1) If the presiding member considers it desirable for the purposes of a proceeding, the Tribunal may- (a) enter and inspect any land or building either in the presence of, or without, the parties.

But Denton argued that the Charter had changed the rules: 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 s6(2)(b) jigsaw

The Human Rights Law Resources Centre page on Charter commentary now contains a fascinating paper by Priyanga Hettiarachi (the manager of ‘Governance’ at Premier & Cabinet) arguing that the Charter has a variety of implications for the common law. Hettiarachi concedes that Part 3 of the Charter has no implications for the common law, but instead rests his argument on Charter s. 6(2)(b):

6(2) This Charter applies to…  (b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3…

He focuses on one particular section of Part 2 – Charter s7(2) and its ‘subject under law’ language – as imposing a requirement for the common law to satisfy a test of proportionality whenever it limits a Charter right.

The paper impresses me for the careful attention it pays to the text of the Charter, its development and comparative documents (including proposed drafts), which mirrors the approach I take to questions of interpretation (but which is often sorely lacking in other discussions to date of how the Charter works.) It also contains a useful discussion of situations when the common law may conflict with the Charter (though I’d add plenty more.)  Further, it makes an excellent effort of trying to find ways for courts to give effect to their supposed function under s7(2):

  • developing the common law to accomodate s7(2) consistently with common law principle
  • developing a new statutory rule founded on the express text of the Charter
  • developing new rules of court to accommodate their new functions
  • waiting for the legislature to intervene and fix the deficient common law

These options carefully try (successfully or otherwise) to dodge the claimed constitutional barrier to a statutory-mandated development of the commn law, largely by claiming that the courts’ function under ss 6(2)(b) & 7(2) is not an obligatory one. If the s6(2)(b) argument is right, then Hettiarachi’s paper should be the first port of call for puzzling out its operation.

But that’s where Hettiarachi and I part company. Continue reading

The centralised common law

The Charter bends over backwards – and sometimes beyond that – to avoid changing the common law:

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…

38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

The Consultation Committee’s stated purpose for this was to avoid a supposed constitutional problem arising from Australia’s single national common law. According to Pamela Tate, who advised the Committee:

By contrast with the United States federal system, in which each State has its own common law ultimately determined by the respective State Supreme Court, in Australia the jurisdiction conferred on the High Court includes appeals from the courts in both the state and federal hierarchies. It is ultimately the High Court which will determine the common law for the whole of Australia.

Of course, the existence of a single national common law does not inhibit the incremental differentiation in common law development by State courts as new and unanticipated cases arise that need to be determined. However, that development is ultimately subject to pronouncements by the High Court. Nor does the existence of a single common law preclude a State Parliament from modifying common law requirements; for example, by capping damages, or introducing statutory thresholds to be met before causes of action can be brought, or indeed by abolishing particular cases of action altogether.

However, a consequence of the existence of a single common law is that it is most likely beyond the power of a State Parliament to direct State courts to develop the common law by analogy with the values protected in the Charter. The constraint that flows from this consequence is that the Charter could not, and does not, impose direct duties on State courts to develop the common law in a manner that would intentionally entail the differential development of the common law in Victoria from its development throughout the rest of Australia.

I’ve written elsewhere about the problems this constitutional argument poses for the Charter’s success:

[T]he resulting legal effect of the Charter on the conduct of court proceedings would be, at best, a pastiche of weak restraints, waxing and waning as courts drift between their administrative and non-administrative capacities, proceedings pass in and out of the purview of suitably malleable statutory provisions and public authorities enter and leave the courtroom.

And I’ve noted in this blog the disturbing apparent phenomenon of the Attorney-General’s department using its intervention power to raise the constitutional point and scare off litigants from relying on the Charter at all.

I also happen to think that this supposed new constitutional limitation on the power of state parliaments is bollocks, notably as the Constitution doesn’t even mention the common law. Unfortunately, especially as this argument is being put forward as plausible, it is indeed most likely that the High Court will embrace it wholeheartedly, as it maintains the monopoly on common law development they gave themselves in the early days of the Gleeson court.

But the biggest downside of these arguments for human rights is nothing to do with the Charter, but rather with the quality of the common law that will result. As it happens, this isn’t just my view, but the view of the outgoing president of the NSW Court of Appeal (which he put to an audience including members of the Gleeson court):

In 2007, when exercising its constitutional functions of correcting error and declaring the common law, the High Court signalled a departure from… the [previous] rules of judicial engagement. New and now binding rules of precedent that were ushered in on this occasion declare that the earlier decision of any intermediate appellate court in Australia is now generally binding on all others. So too are the ‘seriously considered dicta’ of a majority of the High Court in any case, regardless of its age. These rules and the High Court’s response to this Court of Appeal’s erroneous though genuine attempt to develop legal principle go well beyond giving effect to the principle of a unitary common law of Australia. They have been read throughout the country as the assertion of a High Court monopoly in the essential developmental aspect of the common law.

In the same appeal, the High Court resolved an issue of controversial legal principle with a haughty declaration that it did not propose to examine a recently published critique on point emanating from a current English Law Lord or to examine other legal writing which ‘might offer support’ for the legal proposition suggested by the Court of Appeal that the High Court proceeded to reject in categorical terms. In combination, these discouraging rules of process for inferior courts and this adopted methodology for the High Court itself will have the effect of shutting off much of the oxygen of fresh ideas that would otherwise compete for acceptance in the free market of Australian jurisprudence. In my respectful opinion, decision-making by these blinkered methods will be stunted unnecessarily, whether it proceeds in the particular to the affirmation of older rules of law or to their principled development.

In a word: word! Continue reading