The New Charter

R v Momcilovic [2010] VSCA 50 certainly merits a second break from my break from blogging. The most obvious reason is that it announces the very likely (but not certain) prospect of the first ever declaration of inconsistent interpretation under Charter s. 36:

THE COURT OF APPEAL DECLARES THAT:

Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) cannot be interpreted consistently with the presumption of innocence under section 25(1) of the Charter.

This’ll be (and indeed is) an Australian first, but let’s not get too carried away. It will not be the first time an Australian law has been officially declared:

  • to be incompatible  with human rights. See here.
  • to be incompatible with international human rights. See here.
  • to be incompatible with international human rights under a domestic law. See here.
  • by a court, to be incompatible with international human rights under a domestic law. See here.
  • by a court authorised to make such a declaration , to be incompatible with international human rights under a domestic law. See here.

Rather, it will be the first time that a court authorised to do so declares that an Australian law is incompatible with international human rights under a domestic non-equal-opportunity law. And, even then, such a declaration was nearly made over a decade ago (and it would have been much more consequential than this one.) Regardless, the court’s finding that DPCSA s5, Victoria’s unique and nasty ‘deemed possession’ provision, is incompatible with the right to be presumed innocent is both a statement of the bleeding obvious and a relief. Indeed, with the shameful exception of the Attorney-General, it’s also a finding that everyone agrees with, including (as it turns out) the prosecution.

But what is much more surprising is the VCA’s finding that this shame could not be interpreted away. The real importance of Momcilovic isn’t its findings about either Charter s. 25(1) or DPCSA s5, but instead its complete reworking of two of the Charter’s core provisions: Charter s. 7(2) (on reasonable limits) and Charter s. 32 (on interpretation.) Until now, the vast majority of decisions, writings and advocacy about the Charter have argued furiously that these two provisions act in combination so that  all Victorian statutory provisions are liable to be manipulated by their readers to bring them into line with a test of reasonableness founded on international standards of rationality, proportionality and liberal democratic values. In other words, it’s been claimed that, since it came into operation on 1/1/8, the Charter has injected a legally obligatory human rights culture into the entire field of Victorian regulation. Doctrinal positions (and PR blather) to this effect about the Charter’s operative provisions have been repeatedly advocated in particular by the Attorney-General’s lawyers, VEOHRC and the human rights sector, and such an operation of the Charter has also been assumed by critics of such statutes. It’s a reading of the Charter that I have repeatedly criticised in this blog.

And now, unless there’s a (successful) appeal or revisiting of the issue, this approach is dead. The new approach is set out at [35]:

(1) Section 32(1) does not create a ‘special’ rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question.

(2) Accordingly, when it is contended that a statutory provision infringes a Charter right, the correct methodology is as follows:

Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).

Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.

Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.

The key rejections of the alternative approach are at [101]-[102]:

In the view we have taken, s 32(1) has the same status as (for example) s 35(a) of the Interpretation of Legislation Act 1984 (Vic). It is a statutory directive, obliging courts (and tribunals) to carry out their task of statutory interpretation in a particular way. It is part of the body of rules governing the interpretive task. Compliance with the s 32(1) obligation means exploring all ‘possible’ interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights. What is ‘possible’ is determined by the existing framework of interpretive rules, including of course the presumption against interference with rights.

and at [105]-[107]:

[O]ur conclusion that s 32(1) is not a ‘special’ rule of interpretation reinforces our view that justification becomes relevant only after the meaning of the challenged provision has been established… It is that the emphatic obligation which s 32(1) imposes – to interpret statutory provisions so far as possible compatibly with Charter rights – is directed at the promotion and protection of those rights as enacted in the Charter. We reject the possibility that Parliament is to be taken to have intended that s 32(1) was only to operate where necessary to avoid what would otherwise be an unjustified infringement of a right.

In Momcilovic, Court of Appeal President (and ex leader of Liberty Victoria) Chris Maxwell, David Ashley (a commercial lawyer who recently emerged as the only Victorian judge honest enough to admit that Peter Dupas can never get a fair trial in Victoria) and (ex-academic and law reform commisioner) Marcia Neave held that not only do Charter ss. 7(2) and 32 make no dramatic changes to Victoria’s legal system, but they don’t have anything to do with eachother.  Charter s. 32, far from being an outsourcing of Parliament’s lawmaking role to anyone who reads a statute, is simply a tool for assisting those readers in understanding Parliament’s words and intent. And Charter s. 7(2), far from being a legally enforced new culture that envelops anyone who is affected by a Victorian statute, is instead just a tool for assessing (and not re-interpreting) laws by the same two bodies that are responsible for them in the first place: Parliament and the courts.

Why reject the broader conception of the Charter? Because:

It is an interpretation of the [Charter] depending on an implication which is formed on a vague, individual conception of the spirit of the compact, which is not the result of interpreting any specific language to be quoted, nor referable to any recognized principle…., and which, when started, is rebuttable by an intention of exclusion equally not referable to any language of the instrument or acknowledged… principle, but arrived at by the Court on the opinions of Judges as to hopes and expectations respecting vague external conditions. This method of interpretation cannot, we think, provide any secure foundation for… State action, and must inevitably lead—and in fact has already led—to divergencies and inconsistencies more and more pronounced as the decisions accumulate…. But we conceive that [overseas] authorities, however illustrious the tribunals may be, are not a secure basis on which to build fundamentally with respect to our own [Charter]. While in secondary and subsidiary matters they may, and sometimes do, afford considerable light and assistance, they cannot, for reasons we are about to state, be recognized as standards whereby to measure the respective rights of [Victorians] and [Victoria] under the [Charter].

No, that isn’t from Momcilovic, but a much earlier landmark case about another major statute that Australia received from overseas.

Momcilovic is the Charter’s Engineer’s case. What the Victorian Court of Appeal has held in Momcilovic is exactly what this blog has being saying all along: that the Charter is just a statute and, in particular, a bunch of (often) disparate provisions. Neither its pompous title, nor its illustrious forebears, nor its often opaque drafting change that. The  Charter’s meaning is not to be read subject to the murky political imperatives that led to its development, drafting and enactment. It isn’t to be read in light of the views or hopes of its founding mums and dads, no matter what they say. Its provisions don’t combine mystically to achieve greater goals. Not unless those provisions themselves say so. Courts should just read the provisions the way they read any statute: by reading the words, pondering their context and looking through the pertinent extrinsic materials.

Hopefully,the pre-Momcilovic era of the Charter, partially chronicled in all its hideous detail on this blog, will soon be as forgotten as the pre-Engineers era of the Constitution. See ya later Ghaidan, and RJE, and Kracke, and FRED. The Charter is dead. Long live the Charter (perhaps.)

So, what does this all mean for the Charter’s various stakeholders? I’ll discuss them in turn.

Continue reading

Warren’s Charter

No, the blog isn’t back. But I thought it was worth easing my resolve a touch to mark an event that is an antidote, for now, to so much that bothered me last year: a genuinely great Charter decision.

No, make that a terrific Charter decision! The best decision ever! OMFG… The case is Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381. This is the resolution (for now) of what I referred to on Charterblog as Bongiorno J’s challenge, here and here.

The case concerns Victorian anti-organised-crime legislation, passed in 2004 at the height of the gangland war (don’t mention the war! It’s suppressed.) which gave the Orwellian ‘Chief Examiner’ the power (on application to a court) to coercively question (or demand documents from) anyone suspected of involving in organised crime. (Similar powers are awarded to the Director, Police Integrity and the Special Investigators Monitor, in police corruption matters.) No, the coercion isn’t torture, but only up to five years in Barwon’s Acacia Unit.

Crucially, the legislation expressly abrogates the privilege against self-incrimination but only provides for a limited immunity against the use of answers in a later prosecution:

39. Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing,
might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(3) The answer, or the document or other thing, is not admissible in evidence against the person in- (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty- other than- (c) proceedings in respect of an offence against this Act; or (d) proceedings under the Confiscation Act 1997; or (e) a proceeding in respect of- (i) in the case of an answer, the falsity of the answer; or (ii) in the case of the production of a document, the falsity of any statement contained in the document.

Section 39(3) stops the examinee’s answers or compelled documents being used against him/her. But the controversy is that it doesn’t stop the later use of evidence derived from those answer/documents being used against the examinee in a criminal prosecution. So, if you are asked to say where you buried a body (on pain of contempt or perjury), your answers can’t be used against you, but the body can! Great. The controversy is heightened because the legislation specifically allows the questioning of people facing criminal charges. (See s29. The Chief Examiner is required to take reasonable steps not to ‘prejudice’ the ongoing proceedings, a nod to an earlier High Court case, Hammond.)

I called this Bongiorno’s challenge, because he decided last year in an unpublished decision that the Charter ‘s rights against self-incrimination mean that courts, in granting applications to the Chief Examiner, should include a condition barring the questioning of charged persons. The present case is an appeal to the Supreme Court against the imposition of such a condition. The identity of the charged person remains a mystery. CoughMokbel! Actually, I have no idea. Hilariously, the identity of the applicant, DAS, ‘a member of Victoria police’, is also a mystery. Joanna Davidson represented him/her/it, and Kris Walker represented VEOHRC, in a rare intervention. [But see the EDIT below.] It’s an all-acronym case! But the A-G was a no-show.

The case went before Warren CJ. Now, I’ve been very hard on Marilyn Warren in my blogging, mainly because of her role in the Unberbelly debacle, but also because of her cavalier treatment of a lesser free speech claim in a leaking case. Those were indeed awful decisions. But I no longer question Warren’s abilities or dedication to the Charter. This decision is a tour de force, not only of Charter law, but also of the law of self-incrimination and evidence. Full disclosure: it also accords (somewhat) with what SARC said in its report on a similar scheme in the Police Integrity Bill: . Go SARC! It also largely contradicts what the Police Minister said in response to SARC’s queries. Sorry Bob…

The whole of Warren’s decision is worth reading, but here are the highlights: Continue reading

The government’s Charter dodge

When I sat in on the hearing that led to R J E v Secretary to the Department of Justice [2008] VSCA 265, one point had me quite confused:

What I don’t get here is that all the arguments were about the mandatory bits of the ESO scheme. But an ESO also exposes you to the discretion of the Adult Parole Board, which can order stuff like mandatory medical treatment, having to ‘reside’ at Ararat Prison, who you can associate with, whether you can use the net, etc. There are plenty of rights limitations there. The Board, of course, isn’t bound by the Charter. So why don’t ESOs engage all those rights? It’s not clear that that’s what the sex offenders are arguing, though. Strange.

Victoria’s SSOMA, in this way, as in so many others, just like New Zealand’s scheme, has two sections specifying the consequences of an extended supervision order. Section 15 sets out some mandatory conditions that apply to all ESOs, ranging from the silly – not committing an offence – to the mundane – reporting a change of name or employment – and the intrusive – not moving address or leaving Victoria without prior permission. But it also includes these three conditions:

(g) obey all lawful instructions and directions of the Secretary given under section 16(1);

(h) obey all lawful instructions and directions of the Adult Parole Board given under section 16(2).

Section 16 provides that these two entities can give any instruction or direction considered ‘necessary’, respectively, to administer and ‘to achieve the purposes of the conditions’ of the ESO. The remainder of the section then sets out examples of what the Parole Board can do, including imposing curfews, banning the subject from particular job,  activities or people, requiring attendance at treatment programmes and the wearing of electronic bracelets, and, most dramatically, telling the offender where he may ‘reside’ (which, the SSOMA now explicitly states, may include the grounds of a prison.) 

In his judgment, Nettle solved the mystery of why Tate nevertheless only addressed the compatibility of s15 with the Charter (notably freedom of movement) and not the far more dramatic provisions of s16:

Counsel for the respondent and counsel for the Attorney submitted that, although it is open to the Secretary or Parole Board to impose onerous restrictions on an offender under ss 15 and 16, when it comes to the interpretation of s 11 the court should presume that the Secretary and Parole Board will act lawfully, and so in accordance with the Charter; and, therefore, that such orders and directions as the Secretary or Parole Board might give would never go further in restricting the rights of an offender than would be demonstrably justifiable according to the criteria delineated in s 7 of the Charter.

My year of blogging the Charter has been an exercise in steadily increasing cynicism and lowering expectations. And yet, even in late December, the government’s lawyers can still manage to make my jaw drop. (And, note that, yet again, the government party to the proceeding – represented by Tate – and the Attorney-General intervening under Charter s. 34 – represented by Davidson – are marking precisely the same submissions, as always aimed at preventing the application of the Charter. What is gained by giving the Attorney a right of intervention in these cases, other than allowing the government the benefit of two voices speaking in unison at the table? )

The government’s submission is its most extreme attempt this year to mininise any possibility of the Charter ever being applied. Under the guise of a stunningly broad reading of the interpretation mandate, its effect, if a court is foolish enough to accept it, would be to prevent the Charter’s interpretation mandate and declarations power from ever being applied to a statute that gave any person or entity a discretionary power to limit someone’s rights. Needless to say, that category covers the vast majority of occasions when rights are limited in Victoria. Moreover, it would also cover a future law that, say, gave a member of the executive a discretion to torture someone, or apply the death penalty, or to force them to convert to Christianity. The terms and prupose of such a law, the government would claim – in court, in public, in a statement of compatibility – is still compatible with the Charter because its discretions will be interpreted as only permitting those actions when they are reasonable under Charter s. 7(2).

It might seem like this argument has a significant pro-human-rights element, because it carries the corollary that all discretionary power conferred by a statute is limited within the confines of Charter s. 7(2). But this apparent generosity is really a cynical move that will replace the general remedies in the Charter’s scrutiny, interpretation and declaration regimes against overly broad statutory discretions with a case-by-case remedy that is afforded by a judicial review action (or, where applicable, a Charter s. 39(1) action), which must be litigated each and every time a government body acts. As well, because the government’s approach is couched in terms of Charter s. 7(2), each instance of litigation will have to be framed in terms of a’reasonable limits’ argument about the particular act in question. As I’ve observed many times in this blog, Charter s. 7(2) assessments of particular conduct have an inherent tendency to be  self-affirming smug exercises in human rights box-ticking. The government’s argument, if accepted, would replace any chance of a human rights culture with an almost completely non-accountable process of lip service.

The Adult Parole Board’s power under the SSOMA is, of course, a case in point. Offenders subject to an ESO will typically lack the time, temperament, resources and energy to go to the Supreme Court every time a condition is added to an ESO. Moreover, the Parole Board is  itself largely impervious to legal remedies, with only a weak form of judicial review covering its most egregious overreaches. Further, it has been exempted from the conduct mandate (in the unlikely event the Charter s. 39(1) would allow any remedies to be sought against the parole board.)  And, then there’s Charter s. 7(2). Consider this argument that the government advanced to press its claim that s. 16, despite its theoretical draconian nature, is actually entirely reasonable in practice:

Reference was made to material put before the court as to the orders and directions which have been given in this case, and it was submitted that it was open to the court to take that into account as evidence of the way in which the Act operates in fact and thus as legislative facts which may assist in the interpretation of the legislation.

Nettle didn’t provide any details about this, but how could any ‘material possibly establish the reasonableness of every one of the conditions attached to every ESO? And how could the parties opposing the government in this case possibly take issue with this assessment during a three-day hearing? I have little doubt that this ‘material’ was nothing but a self-serving analysis by the parole board of how the SSOMA has been applied to keep kids safe, doubtless based on the same expert assessments that founded the original orders? (And can any claim about the Adult Parole Board’s reasonableness in keeping within its powers stand against the history of the Board acting ultra vires in requiring ESO subjects to ‘reside in the community’ at Ararat Prison?)

According to Nettle, the government’s argument that the interpretation mandate magically turns draconian statutory powers into reasonableness-compliant discretions rested on three casest. One, a Canadian decision on Quebec’s language rules, was apparently relied on to back up the government’s above argument that an Act’s reasonableness can be assessed by how it ‘operates in fact’. But the facts relied on in the Canadian case were about regulations, i.e. other laws, not decisions and, anyway, that evidence was rejected an incapable of sustaining a reasonable limits argument. Nettle implied that the government didn’t press this case much. The second case was Kay, a UK decision I’ved previously covered in this blog, where the House of Lords announced that courts adjudicating tenancy matters don’t have to assess each and every decision by a landlord for rights compatibility, but rather assume that the governing statutes will keep the landlords in line. Nettle dismissed that case as about procedure, but there’s a bigger problem with it.  As I covered previously, Kay is really an instance of the UK courts upholding the parliament’s prerogative to legislate incompatibly with decisions of the European Court on Human Rights. Indeed, as I explained, this year, the House of Lords, following another ECtHR rebuff, made an explicit finding that the UK’s interpretation mandate could not be stretched to read reasonableness limitations into a broad statutory power. Are these examples really the best the government could come up with?

Well, it turns out that the government’s third case is much more on point.   Continue reading

Nettle’s Charter dodge

When I went and watched part of the hearing that led to R J E v Secretary to the Department of Justice [2008] VSCA 265, Maxwell and Weinberg seemed set to throw the Charter at the government, while Justice Geoffrey Nettle seemed to be sitting on the sidelines and even throwing the government a bone or two. That just goes to show that my lousy predicting ability is quite robust. As previously posted, the chatty duo bizarrely didn’t apply the Charter, while Nettle, seeing more value in comity, felt that only the Charter could justify ditching Callaway’s interpretation of s11 of the SSOMA from just two years ago.

And Nettle promptly applied the Charter to do just that. This is, of course, quite exciting: perhaps only the second time the Charter has actually made a difference to the outcome of a case (albeit, on this occasion, only the difference between a majority and a unanimous new interpretation.) Some will see more excitement in Nettle’s discussion of the interpretation mandate:

I acknowledge that, if TSL, Tillman and Cornwall are regarded as having been correctly decided according to ordinary conceptions of statutory construction, it must also be accepted that Parliament’s intention at the time of enacting s 11 of the Act was that ‘likely’ need not mean more likely than not. To adopt now the construction which I prefer is to accept that the intention has changed. But that appears to be the way in which the Charter was intended to operate.

It’s great to see that he’s clearly read Charter s. 32, even giving a bit of lip service to the purposive limitation. And he’s even read some overseas cases on rights compatible interpretation. Glory be. In particular, he adopted the discussion of the UKHRA interpretation mandate by Lord Woolf in Poplar Housing:

(a) Unless the legislation would otherwise be in breach of the Convention section 3 can be ignored (so courts should always first ascertain whether, absent section 3, there would be any breach of the Convention).

(b) If the court has to rely on section 3 it should limit the extent of the modified meaning to that which is necessary to achieve compatibility.

(c) Section 3 does not entitle the court to legislate (its task is still one of interpretation, but interpretation in accordance with the direction contained in section 3).

(d) The views of the parties and of the Crown as to whether a ‘constructive’ interpretation should be adopted cannot modify the task of the court (if section 3 applies the court is required to adopt the section 3 approach to interpretation)

The last of these principles is the most exciting, giving some hope that the Victorian judiciary will break free of slavishly parroting of the most intelligible of the lawyers before it. The second-last, while question-begging, is a reasonable point (and Nettle later tantalises us with an almost-endorsement of Ghaidan, not that UK-style interpretative high-jinx are needed to read ‘likely’ as ‘probable.’)

The first two points, alas, are the Charter-marginalising ‘ordinary interpretation first, Charter interpretation last’ method. Nettle says that he prefers this to Elias CJ’s dissent in Hansen due to its ‘clarity and simplicity’, not to mention its endorsement by Anthony Mason in his post-constitutional-senility life in Honkers. But: (1) The dispute in Hansen was about the interaction between the interpretation mandate and the reasonable limits provision, which is a combination peculiar to Victoria, the ACT and NZ, and doesn’t arise in the UK or HK. (2) Any chance, Nettle, of doing some freaking interpretation of the Charter, i.e. reading its words and structure, looking into its history, etc? Since when have ‘simplicity’ and ‘clarity’ been the sole test of a major structural question in a statute? Believe it or not, fundamental rights laws tend to raise some other issues too!

Still, all up, this is a rare instance this year of someone treating the Charter as something other than a bunch of soft suggestions. As Nettle says:

I consider that the interpretation of s 11 of the Act which was adopted in TSL is now inconsistent with an offender’s right to move freely within and without Victoria and the offender’s right to privacy, if not his or her right to liberty. It follows from Lord Woolf’s second direction in Poplar that the Charter cannot be ignored. Consistently with his Lordship’s third direction, however, I consider that to construe ‘likely’ in s 11 as meaning ‘at least more likely than not’ is within the permissible ambit of interpretation, well short of the forbidden territory of legislation.

Are you listening, the rest of the Victorian judiciary? Stop ignoring it.

Alas, Nettle’s relatively solid command of the operative provisions was not matched by his analysis of the rights provisions and the central notion of compatibility. His central reasoning appears in this dross:

Evidently, the purpose of s 11 of the Act is to guard against the dire consequences of the commission of a relevant offence. In some circumstances, that might justify significant encroachments on an individuals rights of freedom of movement and privacy and even liberty. But if ‘likely’ in s 11 of the Act is construed as including a less than even chance, it is capable of rendering the requirement for satisfaction to a high degree of probability illusory. For example, one might, well be satisfied to a high degree of probability (say, 80 per cent) that there is a 45 per cent chance of the commission of a relevant offence, and yet, according to the laws of probability, the risk of the commission of the offence as so assessed would be only 36 per cent. That would mean that a relatively low risk of re-offending could provide a sufficient basis for making an order. Even giving full weight to the purpose of s 11, I cannot conceive of the potentially far reaching restrictions on rights provided for in the Act as being capable of demonstrable justification in the relevant sense unless the risk of an offender committing a relevant offence is at least more than even.

Frankly, I just cannot believe that this is all he could come up with after three days of hearing.

The weakness of Nettle’s reasoning is evident in the very numbers he comes up with. Continue reading

The right to lawn bowls

Both of VCAT’s recent EOA exemption decisions were decided on the same day and both took the same inordinate time to appear on Austlii. Fortunately, the second decision, by VCAT Vice President Marilyn Harbison, has a much better Charter analysis, indicating, if nothing else, that there’s not a lot of equal protection against discrimination going on within VCAT.

The issue again is gender discrimination, this time in the world of elite lawn bowls. The origin of the exemption application was two earlier decisions of VCAT. The first ruled that lawn bowls, unlike Aussie Rules, didn’t fall within the EOA’s built-in exemption for gender discrimination in sport:

66(1) A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

This decision split the world of Victorian Lawn Bowls between those who thought that the decision had saved lawn bowls and those who thought it had killed it. Various small flurries were decided, with VCAT ruling that the Victorian Ladies Bowling Association had to admit men as members but that it was also allowed to run a one-off women’s event to honour a famous lady bowler. But then VCAT decided to grant a wholesale exemption to re-segregate the elite lawn bowls competitions, on the ground that Victoria’s mixed events didn’t mesh well with the largely segregated national and international lawn bowls world. In Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415, the issue was whether the exemption would be granted again and, of course, Harbison decided that it would.

In contrast to McKenzie’s ruling on the same day, Harbison considered both operative provisions. Her main discussion was of Charter s. 32, which is unsurprising because she was applying a wholly statutory power:

83(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption- (a) from any of the provisions of this Act in relation to- (i) a person or class of people; or (ii) an activity or class of activities…

In response to the applicants’ argument that the Charter wasn’t relevant because this section is ‘clear on its face’, Harbison ruled:

In my view that argument has no merit. In deciding this application, I must consider the Charter because s32 clearly tells me that in interpreting all statutory provisions (and I take that to mean whether they are ambiguous or clearly expressed), I must make sure that I do so in a way that is compatible with human rights. If I am wrong, and the charter only needs to be considered in the event that legislation is not clear, then it is my view that the Charter must be considered in any event because s83 is not clear. It is silent as to the circumstances in which an exemption may be made, and so I must seek the assistance of the Charter in interpreting the section.

Yes indeedy! That’s exactly right. 

Now, onto the next issue: how does the Charter assist? On this point, Harbison herself had the assistance of VEOHRC, who (as always) couldn’t afford to show up, but at least was able to send a letter:

It has been the Commission’s view that the Charter does require a modified approach. The issue as the Commission sees it, for exemption applications, is the impact of s7 of the Charter upon the scope of the discretion vested in the Tribunal under s83 of the Equal Opportunity Act, in the light of the need to revisit its interpretation in accordance with s32 of the Charter. In brief, it is the Commission’s position that s7 of the Charter now defines the parameters of s83 of the Equal Opportunity Act. It follows that the test to apply when exercising that discretion is to ask whether the proposed exemption is or is not a reasonable limitation on the right to equality, using the framework of considerations enunciated in s7. If that analysis identifies that a proposed exemption is not a reasonable limitation on the right to equality then the Commission view is that it should not be granted.

That’s not bad either, although some might see it controversial because it clearly follows the Hansen approach, reading s83 down only to the extent demanded by Charter s. 7(2). While I’ve expressed some doubts about Hansen in some contexts, this context shows why Hansen is necessary, at least some of the time. Given that s83 basically authorises a departure from one of the Charter’s equality rights, it simply can’t be read as wholly compatible with those same rights. So, the only sensible re-interpretation that can occur is to read it as requiring no more than Charter s7(2) requires. (Query whether this reading is ‘consistent with the purpose’ of s83. But who knows what the hell its purpose is?) Harbison backed VEOHRC, but paraphrased its approach as follows:

Looked at in the light of s32 of the Charter, section 83 requires me to consider the purpose of the Equal Opportunity Act, and not make an exemption unless I am sure that the proposed exemption is justified by the purpose of the Equal Opportunity Act, and that the granting of the exemption is compatible with human rights.

That’s a bit vague (and seems to go further than Hansen would), but Harbison’s later analysis basically makes it clear that she will apply her discretion according to Charter s. 7(2). Moreover, she clearly takes the view that the Charter changes the approach to s83, at least in some cases:

This principle might, however, make a great deal of difference to the provision of an exemption where there is no obvious goal underpinning the exemption of redressing disadvantage or discrimination. It will assume particular importance in cases where the result of granting the exemption will be that the exemption will prevent a person from exercising his or her human rights without some public interest benefit from the exemption. It may, for instance, make a difference in cases such as re Boeing Australia Pty Ltd & Ors (2007) VCAT 532.

Oooh. That reads to me as if she knows full well that McKenzie completely buggered up BAE. Harbison later notes that ‘Deputy President McKenzie did not consider herself bound by the Charter in deciding BAE’. ‘[C]onsider’, hey? 

Issue #3: what rights exactly are limited by s83 in general and the proposed exemption in particular?:

Section 7 of the Charter defines what human rights are to be applied in accordance with s32. It is not open to me to make up my own definition as to what is a human right. I must decide whether one or more of the human rights which appear in s7 are engaged by the proposed grant of the exemption. The rights in the Charter which appear to me to be engaged in this analysis are the right set out in section 8(2) to enjoy human rights without discrimination and the right set out in 8 (3) to the equal protection of the law without discrimination. The word “discrimination” is defined in the Charter to mean discrimination on the basis of an attribute set out in the Equal Opportunity Act 1995. Sex is one of the attributes in the Equal Opportunity Act on the basis of which discrimination is prohibited. In the context of this case, the right that I identify therefore is the right of every person to be able to play the sport of lawn bowls without being discriminated against by reason of his or her sex. This right is engaged by the proposed exemption because if I were to grant the exemption, a person of one gender would not be able to exercise his or her right to play bowls in relation to the events limited to the opposite gender for which the exemption is sought.

Snicker. Continue reading

The right to co-education

The trickle of VCAT decisions into Austlii has brought two new Charter decisions, both on the recurrent issue of exemptions to the Equal Opportunity Act. One received some press a few weeks back, with news that the Preshil, the Margaret Lyttle Memorial School, a private school in the middle of Melbourne’s private school belt, would be allowed to continue to discriminate against boys. It’s not at all clear to me why the judgment has taken three weeks to emerge. One consequence, though, is that its crummy Charter analysis hasn’t gotten the contemporaneous criticism it deserves.

Preshil’s application was for exemptions from the EOA’s bans on discrimination against boys in education, the provision of services, requesting information and advertising. Of course, such discrimination is familiar in private schools, due to this provision:

38. An educational authority that operates an educational institution or program wholly or mainly for students of a particular sex, race, religious belief, age or age group … may exclude- (a) people who are not of the particular sex, race, religious belief, age or age group…

But Preshil doesn’t qualify for this exemption, because isn’t a girl’s school, but rather a co-educational one. However, it is – or at least was – at risk of becoming more of a boys school, until it received an exemption from VCAT in 2005:

The material before me and Ms Millane’s affidavit sets out and compares the situation of gender balance at the school in May 2005 and August 2008. In 2005, the ratio of boys to girls was two to one or more at preparatory level, in grades 3, 4 and 5; in grade 6 (where there was one girl and 16 boys) and in years 7 and 10. In August 2008, boys and girls were at a ratio of or exceeding two to one in grade 6 and year 7, with ratios below but close to that figure in its age three nursery. In the other classes, the ratios are much closer and the gender balance, while not equal, does not show swamping. Preshil’s current waiting list has twenty boys and eight girls on it. In the last three years, the percentage of girls attending the school has increased, and the percentage of boys has declined slightly. The school attributes this improving gender balance to the operation of the exemption.

The exemption in particular seeks to offer scholarships and the like exclusively to girls and, in the classes with a 2-1 ratio, to stop taking boys altogether.

In Preshil, The Margaret Lyttle Memorial School (Anti-Discrimination Exemption) [2008] VCAT 241, VCAT Deputy President Cate McKenzie, who gave Preshil its exemption in 2005, gave it again in 2008:

There is possible discrimination here, but there is a significant public interest in granting the exemption. It promotes a coeducational choice at a school with a unique educational philosophy and environment. It prevents girls at the school being swamped in those classes where boys are in very great numbers, and so tries to ensure that boys and girls in all classes receive the same coeducational experience

‘Possible’ discrimination? What the hell is ‘possible’ about this? As a result of this exemption, a number of kids are going to miss out on Preshil’s unique educational philosophy simply because they have penises. Others will miss out on financial support for the same reason. It is discrimination (albeit discrimination that is routinely practiced by single sex schools.) 

McKenzie, readers might recall, both wrongly dodged and completely botched the Charter in granting a race discrimination  exemption to BAE Systems Australia a couple of months back. But, this time, she’s run out of (spurious) excuses and had to ‘apply’ the Charter:

I accept counsel’s submission that my conclusion is compatible with the Victorian Charter of Human Rights and Responsibilities. The school’s approach to coeducation is, in my view, consistent with a number rights in the Charter. For example, the school emphasises the individuality of the child and the freedom of thought, expression and belief. The exemption is aimed at fostering the school’s coeducational environment, and ensures that one sex is not disadvantaged relative to the other. To the extent that any human right in the Charter may be engaged, it is my view that the exemption represents a reasonable limit on that right in the terms set out in s7 of the Charter. The conditions to which the exemption is subject ensure that its operation is limited only to those situations where there is a substantial gender imbalance, and that it operates in the least restrictive way.

This is just gibberish. Where do I start? Continue reading

Bell’s Charter

Today’s surprise announcement of Kirby’s replacement on the High Court had two immediate reactions from me: (1) McClelland went for a NSW judge who isn’t Basten?; and (2) why does her name ring a bell?

I am pleased to announce that the Government has decided to recommend to Her Excellency the Governor-General the appointment of Justice Virginia Margaret Bell as a Justice of the High Court of Australia, with effect from 3 February 2009. Justice Bell will be the 48th person, and the fourth woman, appointed to the High Court since Federation. Her Honour’s appointment will follow the retirement of the Honourable Justice Michael Kirby AC CMG after 13 years of outstanding service to Australia’s highest court.

Justice Bell is currently a Judge of Appeal of the NSW Supreme Court. Beginning her legal career at the Redfern Legal Centre in 1978, Justice Bell practised as a lawyer for over 20 years before being appointed a Judge of the NSW Supreme Court in 1999. Her Honour’s time in practice included service as a Public Defender, as Counsel Assisting the Royal Commission into the NSW Police Service, and as a part-time Commissioner of the NSW Law Reform Commission. Most recently Her Honour has also served as President of the Australasian Institute of Judicial Administration.

Ho ho. But I’m not kidding, as she actually has a significant Charter link. Indeed, she’s the first and (putting aside other judgements referring to her judgment) only non-Victoria judge to have mentioned Victoria’s Charter in a judgment to date. (As it happens, the other non-Victorian who came closest was he judge Bell is replacing, but he only did it second-hand, by citing an article by Evans and Evans.)

Her Charter moment is one I’ve covered on this blog before, in the context of critiquing passing mentions. The first and worst such mention was Callaway’s citation of Charter s. 7(2) as a reason to construe Victoria’s Serious Sex Offenders Monitoring Act (where the ‘monitoring’ can include requiring someone to ‘reside’ in the grounds of a prison) narrowly, simply because it reveals Victoria to be a glorious liberal democracy. This pointless Charter reference led NSW courts, at first, to refuse to follow Victoria’s Court of Appeal when it came to construing NSW’s similar (but slightly more draconian) legislation. And the judge who took that step was Bell:

In TSL the Court took into account the provisions of s 7(2) of the Charter of Human Rights and Responsibilities, observing that “The Charter of Human Rights and Responsibilities 2006 (Vic) is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation.” (footnote [15].) In this respect it seems to me that the plaintiff’s submission that s 17(3) of the Act should be construed in accordance with its terms and not by reference to the approach taken to the Victorian Monitoring Act has force.

I have to say that I don’t think much of this argument for not following the Victorian precedent (and nor, it seems, did the Court of Appeal.) But I think there are some quite positive spins to draw from this in terms of Bell and the Charter.

First, it arguably might signal her view that – unlike most Victorian judges – Bell does think the Charter is transformative, to the point that Victoria’s legal system should diverge more and more from the rest of the country (except the ACT.) That’s surely a good thing and, I suspect, one that will contrast with the Howard clones and Gummow.

Second, and more likely, it probably signals her distaste for the quite mild and garbled formulation that Callaway came up with after his pointless Charter mention. Recall that the NSWCA opted for comity with Victoria despite its preference for a standard that was much tougher than Callaway’s, equating the term ‘likely’ with ‘more likely than not’. Bell had adopted that standard in her judgment. And, as it happens, that’s exactly the standard that the Victorian Court of Appeal might adopt, applying the Charter, in the sex offenders’ challenge.

And that makes Bell’s appointment timely indeed, because that challenge is likely to be the first Charter case that makes it to the High Court. (Both parties, or at least both interveners, would be sure to appeal. The only thing that would stop the case reaching the Court is if the Court bizarrely rejects special leave or the Victorian government renders the matter moot by passing new, clearer legislation, though that would invite a further Charter challenge.) So, it’s pretty clear what standard Bell would opt for, Charter or not. Lucky that, as a NSW judge, she wouldn’t have to recuse herself from a case on a Victorian statute.

More broadly, this signals the main joy of Bell: Continue reading