Wrapping up 2008

To date, I’ve covered 47 cases that mentioned the Charter in 2008. There’s another two that I’ve written a post on but VCAT won’t let me tell you about those. And there’s another four [EDIT: five, as it turns out; [RE-EDIT: no seven!]] left. But the clock is ticking and I won’t have time to do a post on each of them. So, instead, here’s a set of short-takes:

Morgan v Department of Human Services (General) [2008] VCAT 2420: This is an FOI case from VCAT, but not the major case foreshadowed in the VGSO seminar, which I think was the subject of hearings last week. Instead, Ms Morgan is a litigant-in-person who alleges that various agencies of DHS committed manner of wrongs against her and her son in relation to eviction from and provision of crisis accommodation. Her initial step was to launch a private prosecution, but the DPP took it over and then dropped it. She then made an FOI request to DHS, who refused to release 128 documents, claiming a variety of FOI exemptions. She disputes the exemptions, hence the VCAT hearing. The Charter appears to arise in two ways: (1) Morgan alleges that the initial wrongs by the DHS agencies included breaches of various Charter rights: equality, privacy, families/children, liberty. Senior Member Robert Davis held this Charter angle made no difference, given that Morgan was already alleging all manner of illegality. Fair enough, though the position might be different for some other rights, like the right to life, that incorporate a right to a state investigation – arguably, FOI is needed to make sure the state doesn’t duck that job. (2) Davis noted that, in interpreted the FOI Act’s exemptions, he had to ‘give regard to [Charter] s32 in particular and the Charter in general.’ But nothing came of this. No sign of any analysis of what rights the exemptions may be incompatible with. I guess that’ll be up to Bell when he delivers judgment in XYZ v Victoria Police.

Kilkenny v Frankston CC [2008] VCAT 256: This is a plain old residential planning dispute from the Melbourne suburb of Seaford. So, what’s the Charter angle?:

Ms Kilkenny and Mr Colgan expressed concern about the potential for overlooking onto their property from a south facing window to the stairwell. Their grounds assert that the window would cause overlooking causing unreasonable loss of privacy. They also asserted that the charter of human rights had been breached as the council had not given adequate regard to their privacy. However, these concerns were allayed when Mr Kirk agreed to the inclusion of a condition on the permit requiring the deletion of the window in question and for it to be replaced with a skylight. Ms Kilkenny and Mr Colgan agreed that with this change, they were no longer concerned about overlooking or that their rights under the charter were breached.

Well, that’s a relief. I bet Phil Lynch will add this one to his list of feelgood stories about how the Charter is making a real difference! I’m sad, of course, because I would have loved for this one to go to the High Court so they could solve the many fascinating issues Ms Kilkenny’s and Mr Colgan’s assertion raises about the potential ‘horizontal effect’ of the Charter!

A R M v Secretary to the Department of Justice [2008] VSCA 266: This is the companion case to the fizzer, RJE. Unlike RJE, ARM didn’t escape his ESO. That’s unsurprising, because he had quite the history of offending (though, weirdly, he only got a short sentence for his most recent offence, which was against a 19 year-old) and, indeed, he conceded that he was likely to re-offend without supervision. His complaint was that an eight-year order was excessive, because of expert evidence that he’d be fine after a three-year course of treatment. The Court of Appeal held, convincingly, that the trial judge’s order of a three-year review (and two-year reviews thereafter) would do. That’s fair enough. Indeed, there seems to be no difference in substance, so why was ARM even in the court of appeal? Anyway, he did have two smaller victories: (1) He managed to head off an astonishing argument by the government that the SSOMA only allowed appeals against orders, not the duration of them. What was that about ‘model litigants’ not relying on ‘technical defences’? (2) He also won a non-pyrrhic victory, by getting the Court of Appeal to suppress his identity. This involved overcoming another nasty technical defence, but was otherwise easy, as the Court of Appeal felt that non-suppression would be a punishment and that there was no public interest in knowing who ARM was anyway. And that’s where the Charter got a passing mention:

In other cases it may be necessary to consider the right to privacy and reputation conferred by s 13 of the Charter of Human Rights and Responsibilities and, along with it, the effect of s 32 of the Charter on the interpretation of s 42 of the Act.

Yeah, well, in other cases – and in this case, for that matter – it might have been appropriate to consider Charter s 15 too, don’t you reckon? Derryn Hinch would undoubtedly say that Charter s 17 is worth a look too. But, boy, it’s not looking good for his challenge, is it?

Tilley v The Queen [2008] HCA 58: And, in what appears to be the [EDIT: second- [RE-EDIT: fourth!]] last Charter case of the year, it’s the first one that isn’t in a Victorian court or tribunal, though I guess Kenneth Hayne is still a Victorian of sorts. Not that he went easy on his former court. He was livid that convicted heroin trafficker, Peter Tilley, had to wait almost two years before he got an appeal hearing in the Court of Appeal, and then an astonishing further year before the Court delivered a judgment. (One of Tilley’s co-conspirators (ahem) completed his life sentence during that interlude!) Tilley was now seeking special leave in the High Court because the Court of Appeal, despite spending so long in contemplation, apparently forgot to consider some of his appeal grounds. Before Hayne, he argued that he had only one year left of his five-year non-parole period and an appellate success after that would be pointless unless he got bail. That triggered one half of a High Court precedent on bail pending special leave, but alas Hayne held that Tilley failed the other half, which required that the special leave application had a good chance of succeeding. Anyway, in the midst of Hayne’s raking the Court of Appeal over the coals, he said this:

It is neither necessary nor appropriate to examine here what, if any, consequences now follow in Victoria in this respect from s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and its provision that: “(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees – … (c) to be tried without unreasonable delay”.

Nice to know he’s heard of the Charter. But why wasn’t it necessary or appropriate to actually apply the thing? Two explanations: (1) Charter s. 49(2), the bane of all ‘unreasonable delay’ cases for now. Tilley, of course, was charged yonks ago, but there would seem to be an argument that his proceedings before Hayne were separate from his criminal proceedings. (This makes a mockery of Charter s. 49(2), of course, but it deserves that.) (2) The High Court wasn’t exercising appellate jurisdiction (which might involve reviewing whether or not the Court of Appeal should have applied the Charter during the appeal) but original jurisdiction (and, in particular, s73 of the Constitution, which is the source of the High Court’s bail power.) So, no Charter s. 32 (the constitution isn’t a Victorian statutory provision), no Charter s. 38 (the High Court isn’t a public authority) and no Charter s. 6(2)(b) (the High Court isn’t a Victorian court or tribunal), right? Well, maybe. But what about the Judiciary Act and, in particular, this provision?:

79(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Now, I certainly know very little about federal jurisdiction – Gummow: ‘I just felt a disturbance in the force!’ – and it may well be that this provision doesn’t bind the High Court exercising original jurisdiction. But, on the off-chance that it does, then wouldn’t it be arguable that Charter s. 25(2)(c) is a law ‘relating to procedure’ and that one or other of the operative provisions – Charter s. 6(2)(b) perhaps – is picked up by s79 in applications like Tilley’s? (As I understand things, this pick-up can even apply to state laws expressed to apply only to Victorian courts.)  And might that mean that Hayne has to rethink that rather restrictive High Court precedent on bail, to the extent that it limits Tilley’s rights under Charter s. 25(2)(c)? Just some crazy speculation, but maybe someone else is smoking what I’m smoking. [EDIT: Hey, someone was, but the Federal Court and the High Court didn’t inhale; interpretation is probably the least likely operative provision to be picked up, I imagine.] Not Hayne though, but he did give Tilley a little help, expediting his (doomed) special leave application.

And that’s it for my short takes. Not that short really. Despite my next post, I might just add some additional short takes on the off-chance that more 2008 judgments emerge on Austlii, even next year. But, as for 2009 judgments, you’re on your own.

[EDIT: As promised, here’s a short take on a new 2008 case that has appeared on Austlii: [RE-EDIT: Actually, there are three newcomers now.]]

Drummond v Telstra Corporation Limited [2008] VCAT 2630 is an unfair dismissal case trying to qualify as an anti-discrimination case.

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.

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?

Relationship ceremonies redux

Back in May, I mulled over how the Registrar of Births Deaths and Marriages would exercise its powers under this provision of the Relationships Act 2008:

27(1) The Registrar may enter into an arrangement for the provision of additional services in connection with the provision of services relating to the registration of a registrable relationship, including, but not limited to– (a) the provision of information in the form of a decorative certificate or other document; (b) the provision of information from records maintained under section 26 relating to the registered relationship.

The registry has applied an identical provision in the Births, Deaths and Marriages Registration Act 1996 to provide for decorative marriage certificates and for registry marriages in the Old Treasury Building. I wondered whether there’d also be decorative registration certificates and, more interestingly, state-run registration ceremonies:

Arguably, it has to. The steps of the argument are: (a) that Charter s. 8, in providing for recognition before the law, a right to enjoy human rights without discrimination and a right to equal protection of the law, provides a right for unmarried couples to get the same recognition of their relationship that is afforded to marriage couples; (b) that state-run ceremonies are a form of such recognition and that the fact that marriage requires ’solemnization’, whereas relationships don’t, is not a significant difference; (c) that the Registar is a ‘public authority‘ (not much doubt there: see s4(1)(b)); (d) that the Registrar is therefore obliged to provide the same ceremony to both marriages and relationships under Charter s.38(1) (the conduct mandate); and (e) that the Marriage Act does not make it reasonable for the Registrar to not to do so under Charter s. 38(2)…

On the latter point, the ACT Registrar-General now provides such a service in the form of a ‘commitment ceremony’, attended and ‘managed’ by a Deputy Registry-General for a fee of $275 and including a program of the ceremony that is every bit as lame moving as a a modern wedding:

I partner 1 take you partner 2 to be my partner for life,
I promise above all else to live in truth with you,
and to communicate fully and fearlessly
I give you my hand and my heart
as a sanctuary of warmth and peace
and pledge my love, devotion, faith and honour
as I join my life to yours.

It even allows for the exchange of rings or cups(?) and the interminable ‘readings’. ‘Appropriate Symbols and Music may also add to the sense of celebration (couple to supply music and equipment if music to be played throughout the program.)’ Oh god. Robert McCleland, despite his initial concern about ceremonies ‘mimicking’ marrages, has not vetoed the ACT Civil Parternships Act, indicating that he, at least, doesn’t think that such Registry ceremonies involve some sort of conflict with the Commonwealth’s straight-only marriage law. As near  I can tell, the ACT government does not provide a similar service for people who want to get married. [Can someone confirm this?]

Well, the long-awaited commencement day of the Victorian system arrived yesterday, bringing the news that the Victorian Registry now provides a ‘Commemorative Relationship Certificate’ for the bargain price of $39. (It’s not an official certificate that can be used to gain the sole legal benefit of the scheme, proof that you’re in a relationship for the purposes of Victorian statutes. For that, you need to fork out $25.80 for an official certificate.) See commemorative version above between ‘John James Citizen’, labourer and (ahem) “Sam Smith”, student, both living in Richmond but, it seems, in separate houses. Ah, those old-fashioned types! The commerative (but not official) registration certificate will have a space for the newly-regs to nominate when they ‘celebrated’ their relationship, as well as a separate entry for when they both agree that their relationship ‘began’. (Do married people get to make a similar nomination?)

The version shown above is the ‘eternity’ model. Eternity, that is, until one of you decides to lodge an ‘application to revoke a registered relationship‘, in which case your relationship will be deregistered 90 days later, unless you submit a withdrawal form. (Alternatively, one – or, if you’re straight, both – of you can just get married, in which case deregistration is automatic and mandatory.) Maybe such folks should opt for the ‘calligraphy’ model, which features watermark words like ‘love’ and ‘unity’. But, beware, the revocation form isn’t available yet. However, newly-registereds who already have cold feet can just withdraw their application to register, which isn’t finalised until 28 days after application (or longer if you get some details wrong!) Alas, you won’t get back your $180 registration payment! 

But will the Registry offer relationship registration ceremonies?

Taxi driver redux

Sophie Delaney and Vivienne Topp write in today’s Sunday Age on XFJ (the first mention of the case that I’m aware of in the broadsheet):

Not only is this a disturbing example of tabloid-driven law-making, and an undermining of the rule of law, it is also potentially discriminatory. People found not guilty due to mental illness offend because of their illness. An indiscriminate exclusion of such people from employment or participation in society is particularly questionable in the year when Victoria’s Charter of Human Rights and Responsibilities has become fully operational.

It is starting to look like the Charter will inevitably be drawn into this case, despite its near miss in the VCAT judgment.

There are currently three Charter angles:

First, there’s news of an action to overturn the suppression order on XFJ’s name by VCAT:

Ms Kosky’s comments came as the Herald Sun launched legal action to unmask the man, who stabbed his wife to death in a frenzy and whose identity is suppressed by a tribunal order.

It was pointed out to me that, if the Herald Sun was able to use the Charter to reveal XFJ’s identity, then my feared head-on crash may be more of a love-in. Indeed. But it isn’t an especially likely outcome. As the Herald Sun’s owner happens to be a corporation (Herald and Weekly Times), it has no rights. This seems to be the basis on which Channel Nine’s action to get Underbelly unsuppressed came a cropper. It shouldn’t have, of course, as the VCAT suppression order (like King J’s) affects the rights of Melbournians to ‘receive information’, part of their Charter freedom of expression. As well, at a stretch, the Hun can argue that those Melbournians’ right to movement might be harmed by not knowing XFJ’s identity (as some may be deterred from taking taxis.) Even more extreme, they could claim that their rights to security or life are at stake. But that’s a two-edged sword: XFJ’s rights against discrimination, privacy, security and (at a stretch) life (and maybe his family life) are protected by the order. 

Second, there’s Kosky’s promise to appeal against the VCAT judgment:

We will look at every avenue for appeal so I can actually fix that difficulty, so everyone can feel safe when they hop in a cab. That’s what I want to be able to guarantee,” she said.

Presumably, the government will argue that Macnamara misinterpreted the word ‘comfort’ in the Transport Act’s ‘public care objective’ as about upholstery rather than the personal foibles of Melbournian taxi drivers. It’s inevitable that XFJ will resist this argument using the Charter. Macnamara didn’t have to resolve that issue, but the Supreme Court will have to. Perhaps the government will respond with Charter arguments about Melbournians’ rights. But, more likely, the government will just fight XFJ’s Charter claims tooth-and-nail. Charter s. 35 notices will have to be issued, meaning that the Attorney-General and VEOHRC will be invited to the party. Both of course will be there to provide neutral assistance, so maybe the Attorney-General will back XFJ? Anyone want to bet on that one?

Third, there’s the coming legislation.

The Charter vs taxi passengers

October 31st is the date I pronounced the biggest Charter day EVER, given the thrilling combination of two passing mentions in the Court of Appeal and the revelation on Stateline of the (then) most significant Charter challenge to date. Now, thanks to the slow drip feed of cases onto Austlii, I’ve discovered that that Halloween was even bigger still.

XFJ v Director of Public Transport [2008] VCAT 2303 ponders this question:

[W]ould you want to ride with a man who stabbed his wife to death in 1990, never mind the circumstances? Would you want one of your children to ride in those circumstances?

If not, then you might want to skip catching taxis in Melbourne.

As diligent readers of this blog know, the Charter has already been raised by an insurance fraudster wanting to ride a bus, in the face of the Transport Act 1983‘s licensing scheme. Peter Swain’s insurance fraud was a ‘category two’ offence, meaning that there was a presumption against him ever having a public transport licence. But serious violent offenders face a much tougher burden:

169(2) The Director must not issue or renew a driver accreditation if the Director is aware that the applicant-… (b) has been found guilty of a category 1 offence…

VCAT can allow such persons, including murderers, to drive, although perhaps it’d take a brave VCAT member to do so. XFJ, though, managed to slip out of the regime for managing the licensing of criminals altogether, despite these uncontested facts:

XFJ came to Australia in 1989 as a refugee from the upheavals in Ethiopia. He left Ethiopia, travelling through Sudan to Egypt. He says he suffered many hardships in the course of his flight from Ethiopia, including imprisonment and torture in Egypt. In 1990, XFJ, who is now aged 52 years, was in the grip of a serious depressive episode. He was contemplating suicide. Apparently he carried a piece of rope around with him. In the event however, the violent action which he took first was not directed against himself, but against his estranged wife. He killed her with repeated knife blows. Thereafter, he attempted to commit suicide himself by hanging, but the attempt failed when the limb on the tree which he sought to hang himself from broke.

XFJ’s jury found him not guilty of murder on the ground of insanity. He was detained at the Governor’s pleasure and eventually released into the community in 1998 and from all constraints in 2003. The Transport Act has a provision deeming such persons to be offenders for the purpose of the licensing scheme, leading the Director of Public Transport to initially deny him a licence. However, a closer inspection of the provision revealed that it didn’t cover people like XFJ who were dealt with under the pre-1997 insanity regime. Instead, XFJ’s application for a taxi licence had to be dealt with just like most people’s:

169(1) …[T]he Director may grant the application if the Director is satisfied- (a) that the issuing of accreditation is appropriate having regard to the public care objective; and (b) that the applicant- (i) is technically competent and sufficiently fit and healthy to be able to provide the service; and (ii) is suitable in other respects to provide the service; and (c) that the applicant has complied with the application requirements under this Division.

In June this year, safely on the right side of Charter s. 49(3) ,the then Director, Jim Betts, made his decision: to refuse XFJ’s application, citing the public care objective and XFJ’s suitability ‘in other respects’ and, thus, dashing XFJ’s hopes for a flexible job to assist him in caring for his 19-month old, who alas has leukemia.

Appealing to VCAT as his last hope, XFJ raised the Charter. VCAT Deputy President (and Charter virgin) Michael Macnamara dealt with the Charter argument as follows:

I should note that Mr Stanton, on behalf of XFJ, impressed me with a number of arguments arising under the Charter of Human Rights and Responsibilities Act 2006. It has not been denied that, having regard to the timing relative to the present proceeding, that the Charter applies. Again, without rehearsing the arguments which were put by Mr Stanton, and the counterarguments put by Ms McKenzie, it is sufficient, so far as the Charter is concerned, for me to note that Section 32(1) of the Charter Act provides:

(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 human rights may be considered in interpreting a statutory provision.

In my view, the approach which I am about to take, relative to the Transport Act 1983, is in accordance with those provisions, and no issue arises of any inconsistency between the Transport Act and the Charter of Human Rights and Responsibilities Act 2006. Hence, even although issues relative to the Charter have been raised and argued before me, it is, as far as I can see, unnecessary for me to consider giving notice to, or inviting argument from, either the Attorney General or the Human Rights Commission.

Hey, no fair! I want to hear what those impressive Charter arguments (and counterarguments) are.

The right to bite

Friday’s other Charter case – or, more exactly, other passing mention of a possible future application of the Charter by a dissenting Court of Appeal judge – was a criminal appeal, R v De Simone [2008] VSCA 216.

In 2004, businessman, property developer and walking criminal law exam problem Giuseppe de Simone was shopping for groceries at the Coles in Barkly Sqaure, Brunswick. Alas, his shopping, while otherwise routine, included opening a four-pack box of ice-creams and eating one of them, an event observed by two store employees. When de Simone fronted at the check-out, the box was nowhere to be seen and he made no mention of it. After he was challenged, he claimed to have forgotten about it and offered to pay for a whole box and keep only three of the ice-creams. The store manager would have none of that, insisting that he pay for the whole box and keep none of them.

After that promising start, things went downhill. Voices were raised. The store manager tried to stop de Simone from leaving. A secutity guard intervened and the police were called, responding to a claim that someone was being ‘aggressive’. When the two cops arrived, an argument erupted and all three ended up on the ground. It was at that point that de Simone bit Constable Baynes on the forearm. De Simone later insisted that he was being suffocated and needed to bite the officer to breathe. The incident quickly led to the use of handcuffs, capscium spray and the issuing of charges of theft, intentionally causing injury and assaulting a police officer. 

Alas for my law students, the interesting theft charge was dropped. Although de Simone was convicted of the other charges and fined $6000, the Court of Appeal unanimously allowed his appeal on the grounds that the trial judge fluffed his response to a jury request to read the transcript of evidence of eyewitnesses to the events before the bite. They generously entered an acquittal, on the ground that a new trial would be ‘a scandalous waste of public money’, though Mark Weinberg JA chastised de Simone as foolish and pointed out that his actions were costly for both himself and the community. Oh, that wasted unfinished box of ice-creams! (It seems that de Simone has a habit of getting into these sorts of tangles.)

The Charter issue arose in relation to a further question (which wasn’t necessary to decide) about the legality of the police’s actions. Except in special circumstances, police cannot use force to arrest someone without first telling them that they are under arrest and the reasons for that arrest. De Simone testified that the police didn’t tell him he was under arrest, but rather just leapt on him while he was loudly asking to see a lawyer. Several independent witnesses didn’t hear the arresting words either. But the police insisted they went by the book. Justice Neave discussed the possibility that the police said the words but de Simone didn’t hear them, noting that there was a line of authority that suggested that the lawfulness of an arrest depends on what the police said, not what the arrestee heard. Believe it or not, one UK precedent involved the arrest of a deaf man who couldn’t lip-read. Neave footnoted that precedent (and the more routine scenario of an arrestee who can’t speak English) with the following comment:

Query whether this conclusion could be challenged under the Charter of Human Rights and Responsibilities Act 2006.

Like Warren CJ in the other Charter case brought down that day, Neave unfortunately didn’t state which right she had in mind.

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.)

A question of reputation

Black Inc Books, mysteriously undeterred by my negative-reviews-only policy, and the fact that I only review Charter books, has sent me a free copy of A Question of Power by Michelle Schwarz on the allegations that Geoff Clark raped several women in the early 1970s. I’ve followed this story with some interest since the allegations were publicised in 2001. Moreover, I was in Warrnambool recently speaking on the Charter at a Deakin Law School conference and was curious to know why such a scenic and well-located town isn’t better regarded as a holiday destination in Victoria. The Warrnambool tourist agency won’t be a big fan of this book, with its hair-raising claims of rape gangs roaming the streets in the 1970s and racists sipping lattes in the cafes in the 2000s.

But I’m a big fan and will definitely look up Schwarz’s other book, on the death of David Hookes. While the ‘true crime’ genre should be a natural for my interests, I’m no fan of blood-soaked yarns about nasty criminals, screeds against institutionalised racism or a cheap shot dig at the justice system. So, A Question of Power is my kinda crime reporting book, featuring detailed interviews with all parties and careful analysis of transcripts, including letting the subjects and, especially, the transcripts do most of the talking.

Writing about rape allegations is a very tricky thing for rights-oriented folks. Our instinctive reaction in favour of criminal defendants runs hard up against our knowledge of the sexism and nastiness of the criminal justice response to rape. Trying to stay true to both instincts is hard. I did my thesis on the presumption of innocence in rape trials in an attempt to walk the tightrope, and more recently tried to find commonalities in the legal wrongs done to each side in DNA cases. Schwarz, a former lawyer, doesn’t leap for the objectivity of legal analysis and policy arguments. Instead, she delves into the significant credibility issues on both sides. Her account of Carol Stingel’s tale shows clearly how compelling Stingel’s case is. Equally her examination of not just the federal and country town politics involved in Clark’s case but also the politics within Framlingham (home of Clark and a rival family including his other main accuser) is revelatory. She doesn’t reveal her conclusions (though it’s clear that she doubts Jo McGuiness’s tale) but I’d like to think that all the parties she interviewed (which is all of them apart from politicians), and especially Clark and Stingel, would think that her account was fair. That’s no mean feat!

Schwarz’s major opinions are reserved for Andrew Rule, author of ‘Power and Rape’, the newspaper article that aired the revelations, basically ending Clark’s career. I was very unhappy with Rule’s article when it came out, but my views have softened on airing accounts of crimes outside the judicial process. Schwarz’s argument focusses, not on the airing of the allegations, but on the lack of balance in Rule’s article. Most notably, she argues that it omits all of the bitter Framlingham politics that surrounded McGuiness’s claims. Unfortunately, the Walkley-award-winning article doesn’t seem to be available on the net, so I can’t check her account, but if it’s true then the article isn’t an account, but rather an attack. The Charter has something to say about such attacks:

13 A person has the right-… (b) not to have his or her reputation unlawfully attacked.

Of course, Rule isn’t bound by the Charter, although his article might (might!) run into trouble under the ALRC’s privacy proposal. According to Schwarz, Rule was initially happy to talk with her, but cut off contact once she revealed that her book wouldn’t have the same tone as his article. If that’s true, then Rule is a tool.

But what about the other sort of rule that is implicated in this story?: the Victorian laws that facilitated Stingel’s successful civil claim against Clark, which added the state’s imprimatur to the allegations aired by Rule.

The Charter and risk assessment

A second case on the interaction of two major Victorian statutes of 2006, the Charter and the Disability Act, is now online. Both involve supervised treatment orders under the latter statute:

193(3) A supervised treatment order must- (a) state that the Authorised Program Officer is responsible for the implementation of the supervised treatment order; (b) require the person to whom the supervised treatment order applies to reside in premises approved by the Authorised Program Officer; (c) refer to the treatment plan which must be attached to the supervised treatment order; (d) specify the period for which the supervised treatment order is to continue in force, being a period not exceeding 1 year.

The first case, MM (Guardianship) [2008] VCAT 1282, blogged about here, involved a narrow and unusual question: whether or not supervised treatment orders should be made in relation to someone who wants to be treated but, due to an intellectual disability, lacks the capacity to fully consent. Disappointingly, VCAT Deputy John Billings opted for a broad reasonable limits analysis – which, of course, the detention regime passed with flying colours – without applying the interpretation mandate to the specific provision in dispute. The new case, LM (Guardianship) [2008] VCAT 2084, looks at a much broader question about the limits of the detention regime and does a better, but still inadequate, job.

As always, the facts are heartbreaking. Following childhood behavioural problems, LM was diagnosed at the age of 13 with a ‘borderline to mild intellectual disability’ and a plethora of mental disorders, as well as non-epileptic seizures. As an adult, she attracted a criminal record, including for threatening a woman and a child in a McDonald’s toilet (in 2004) and, more recently, walking into traffic, carrying a controlled weapon and offensive public behaviour. She is presently on a good behaviour bond. Within various institutions, her behaviour included secreting knives and walking onto roads, both apparently with intent to suicide; aggression and threats towards staff; and repeated seizures. But there have been considerable improvements in her current location. Nevertheless, her current disability service provider considers it necessarty to lock the front door to that institution about 70% of the time (apparently so that she feels safe); to forcefully return her to the premises on a number of occasions when she climbed the back fence and headed for the road; to restrain her during seizures; and to engage the police to return her to the premises. They obtained an interim supervised treatment order to authorise these measures and now seek a non-interim order.

There’s little doubt that LM is unwell and poses some danger to herself. However, for better or for worse, treatment of those problems depends on other regimes, including other provisions of the Disability Act, the Mental Heath Act and the Guardianship and Administration Act. The supervised treatment order regime,  the sole regime permitting disability service providers to ‘detain’ anyone, is, by contrast, aimed at protecting others. No-one disputes that LM satisfies the threshold eligibility requirements for STOs: she has an intellectual disability, is in residential care and is being treated. But does she meet the core test of being a risk to others?:

191(6) VCAT can only make a supervised treatment order if VCAT is satisfied that- (a) the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm…

What is ‘serious’ harm? The Disability Act doesn’t define the term, so VCAT Member Julie Grainger looked to definitions in the Cth and ACT Criminal Codes (defining serious harm as either life-threatening or longstanding) and the Migration Act (with a broader definition all sorts of potential hams.) She strangely didn’t consider the definition in in Victoria’s own Crimes Act – probably because it refers to ‘serious injury’, thus avoiding an Austlii search –  but it’s not a very helpful definition.

After noting that there’s a much stronger analogy between STOs and criminal punishment, Grainger opted for the Code definition, observing:

This definition is also compatible with, and promotes the human rights of persons with a disability by ensuring that human rights such as the right to recognition and equality before the law (section 8 of the Charter), the right to freedom of movement (section 12 of the Charter), the right to liberty and security of the person (section 21 of the Charter) and the right not to be tried or punished more than once (section 26 of the Charter) are limited only in the most serious of circumstances.

Fair enough. The reasoning here basically equates compatibility with ‘least possible intrusion’, which is fine, although it doesn’t really go beyond the traditional rule that requires strict construction of provisions that limit common law rights. The Charter supports a more nuanced interpretative approach:

21(2) A person must not be subjected to arbitrary arrest or detention.

(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

An important precondition for avoiding arbitrariness in detention and for ensuring compliance with lawful requirements is for the provision authorising detention to be as clear and precise as possible. So, it’s vital that any interpretation come up with a definition that is not merely minimalist but also not susceptible to widely inconsistent factual applications.

Grainger’s definition strikes me as fitting that bill, but her application of the test to LM strikes me as very problematic.

Conference Q&A

One of the best things about human rights laws is the conferences. While I (and everyone I know) doesn’t much like conferences themselves – the locations are another matter – because the papers tend to be narrow, poorly presented and disconnected from one another, human rights conferences tend to produce interesting, connected and (better) presented papers. Friday’s annual Protecting Human Rights Conference was no exception. As the final speaker for the event, I was a bit too distracted to listen carefully to every speech, so I’m looking forward to the papers appearing online (apparently at the end of this week.) Prof. Johannes Chan’s paper, in particular, looks to be a superb and much needed summary of HK human rights cases.

But what did keep me alert was the Q&A’s, where new and interesting things often emerge. Here’s my summary and takes on some of those:

Charter s. 35: Carolyn Evans, in her summary of this-year-in-the-Charter, called for the repeal of Charter s. 35, the Charter’s provision requiring notice to the A-G and VEOHRC of Charter issues in the higher courts, arguing that it hampered making Charter arguments. Pamela Tate and another questioner queried her on that call, citing her comment that the MHRB decisions to date involved not-especially-helpful legal arguments and the supposed inconsistency there. Tate revealed that Charter s. 35 was requested by the courts, who wanted better legal arguments on the Charter. She also suggested that Charter s.35 notices don’t cause delays, citing the weekend turnaround on Sabet’s request for a stay of the HPRB’s decision to suspend him. Evans, in response, mooted making Charter s. 35 transitional but ultimately opted for immediate abolition, referring to the potential for Charter s. 35 to yield government-backed, rather than neutral, legal analysis.

I say: too bloody right. No-one should put the Charter in a corner. Or, to put it more fully (including some of what I said in my own talk):

• The problems of Charter s. 35 in practice can’t be measured by what happens after notices are issued, but rather by the potential for litigants to choose not to issue notices (and therefore make arguments) at all. Sabet, who initiated a Charter-specific claim in the Supreme Court, is hardly a case in point; rather, the relevant concern is a lawyer who thinks up a Charter claim just before or in a trial and is deterred by the threat of a costs order due to the Supreme Court’s appalling Practice Note No. 3 of 2008. More generally, even a short procedural requirement prevents the Charter from being brought up instinctively, regularly and urgently. Why should it be any harder to raise the Charter than any other statute?
• The supposed necessity of legal advice from the A-G & VEOHRC is an insult, not only to other lawyers, but also to the County and Supreme Courts. Why would the State’s most senior judges have so much difficulty coming to terms with a forty-nine section statute that’s been around for over two years now and is the subject of a couple of excellent texts, including an annotation? And what’s the case for treating the Charter differently to other legislation (remembering that the Charter is the weakest statute in Victoria?) The fact that the judiciary asked for Charter s. 35 strikes me as another worrying sign that Victoria’s courts are no enthusiasts for the Charter, and in particular its ubiquitous use in our courtrooms. It makes me wonder: did they ask for Charter s. 4(1)(j) too?
• It’s also worth noting that Evans’s comments about the need for legal advice related to proceedings in the MHRB, not the SC or the CC which are where Charter s. 35 applies.
• The risk of the supposedly helpful legal advice really being the government line in disguise, alluded to by Evans, is all too real. A number of speakers pointed out the lack of funding for VEOHRC to make submissions. Instead, as I argued in my paper, the interventions have all been from the A-G and are all against rights claims. See below.

Charter s. 32:

The right to a parliamentary debate

The abortion debate yields another first: the first (to my knowledge) published legal advice on the Charter as part of a political debate. Such advices are a regular part of the landscape in other jurisdictions with human rights laws, so it’s surely a positive development. The advice is from Phillips Fox to Catholic Health Australia Inc and is written (or signed) by partners Nigel Preston and Rachel Walsh. So, did CHA get their money’s worth?

The major claim of the advice is that there should have been a statement of compatibility with respect to clause 8. The problem is Charter s. 48:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

Preston and Walsh’s argument is:

Section 48 is a savings provision, intended to protect laws concerning abortion from being interfered with by or challenged under the Charter, whenever they came into effect. In particular, section 48 was intended to protect the common law on abortion from challenge under section 9 of the Charter…  Indeed, an early exposure draft of the Charter contained a caveat to the Right to Life provision that it applied only after birth.

Insofar as the Bill is concerned with legalising or decriminalising aspects of abortion, it is correct to say that those provisions are not subject to the legislative processes established by the Charter. However, the problem is that this Bill affects rights other than those concerned with the decriminalisation of abortion. Clause 8 of the Bill contains provisions that go beyond the remit of section 48 of the Charter, and so should be subject to the Charter’s process for scrutinising the Bill for compatibility with human rights and to other Charter provisions (including the interpretive obligation in section 32).

Whereas SARC, in its report, focussed on the words ‘law’, ‘applicable’ and ‘affects’, this argument centres on Charter s. 48’s alleged purpose, tying it exclusively to the ‘legalising or decrininalising aspects’ of abortion and child destruction. I’m not so sure that the criminal law angle on abortion can be so readily separated from the medical law angle – or that the purpose of Charter s. 48 can be precisely discerned – but there’s no doubt that the scope of Charter s. 48 is quite a quandary.

So, what are the consequences if parts of the bill are outside Charter s. 48’s scope? That depends on these two sections:

28(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(3) A statement of compatibility must state- (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

Preston and Walsh say:

You may be confronted by an argument that the failure to comply with the Charter has no consequences. The basis of the argument is that the Charter requires a process of consideration of compatibility with human rights to be followed at the time of second reading of a Bill, but the Act which flows from the Bill is not invalidated if that process is not followed…. To our thinking, section 29 of the Charter is not the point in this case. The Bill is not yet an Act. This section is designed to remedy a mistake in the processes leading to an Act. This section is not a mechanism to avoid consideration of the Charter in relation to any Bill where the Charter should be considered.

That’s certainly true. But it does mean that this legal advice is actually about the legality of non-justiciable parliamentary process. Anyway, Preston and Walsh go on:

The central point is that the human rights protected by the Charter should have been considered at the time when this Bill was introduced into Parliament. The clear objective of the Charter is to facilitate a consideration of those human rights which are protected by the Charter in the debate on this Bill. The wrongful exclusion of the Charter from debate in relation to this Bill has cut short a proper consideration of the human rights which may be affected by the Bill. According to the second reading speech, the Charter was intended to promote a ‘dialogue model of human rights’, which ‘seeks to address human rights issues though a formal dialogue’ between branches of government. The exclusion of the Charter from debate contradicts this intended goal. It is not for us to say what might have happened if the Charter had been considered in Parliamentary debate. It is not for us to conjecture whether the Bill would have been amended, or not. This is a matter for Parliament, but more particularly, it is a matter for a properly informed Parliament.

Speaking of the ‘exclusion’ of the Charter from parliamentary debate is a little extreme. No-one’s stopping the Charter being mentioned there or elsewhere. All that’s missing is the statement of compatibility. (And, ahem, the Parliament was ‘informed’ (properly or otherwise) by SARC’s report. SARC suggested a similar conclusion on the possible requirement of a statement of compatibility, but by a different argument: that Charter s. 48 didn’t have any impact at all on Charter s. 28, because it only affects laws, not bills.)

The advice then goes on to suggest four rights that clause 8 limits:

Three new (non-Charter) rights for Victorians

Amendments to the Equal Opportunity Act 1995 came into force today re-defining discrimination to include the following conduct:

• unreasonable refusals by employers/principals/firms to accommodate the responsibilities that (a) people offered employment (b) employees (c) contract workers; and (d) partners in firms; have ‘as parents or carers’.
• refusals by people who provide accommodation to allow a person with an impairment ‘to make reasonable alterations to that accommodation to meet his or her special needs’
• refusals to ‘provide accommodation to a person with a visual, hearing or mobility impairment because that person has a guide dog’, including requiring that the dog stay elsewhere or charging a special fee

Unlike the previous amendments to the Act, these new rights do not add to or widen the definition of Charter rights. That’s because, while the Charter picks up the definition of discrimination in the EOA, it only does so in relation to discrimination on the basis of an attribute:

3(1) In this Charter… discrimination, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 1995) on the basis of an attribute set out in section 6 of that Act

However, the new anti-discrimination rights in the new amendments alter the definition of discrimination to create a new ‘conduct-based’ sort of discrimination that is different to discrimination on the basis of an attribute. Here are how the alterations look:

3 The objectives of this Act are- (a) to promote recognition and acceptance of everyone’s right to equality of opportunity; (b) to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes; (c) to eliminate, as far as possible, sexual harassment; (d) to provide redress for people who have been discriminated against or sexually harassed.

7(1) Discrimination means direct or indirect discrimination on the basis of an attribute or a contravention of section 13A, 14A, 15A, 31A, 51 or 52.

It seems clear enough that the Charter’s concept of discrimination is now narrower than the EOA’s. Why – and why the Charter’s definition has to be tied to the EOA at all – remains a mystery. Of course, it might be arguable that roughly similar rights flow from Charter s. 8 (in relation to discrimination on the basis of impairment) and Charter s. 17 (protection of families and children.)

Human rights avalanche!

Too many human rights cases, too little time (and, yes, I’m never happy.) Here are some short points on the rush of human rights cases (or related cases or events) that have come out the past few days. I hope to get back to some of them:

• Sham marriages: In Baiai & Ors, R (On The Application of) v Secretary of State For The Home Department [2008] UKHL 53, the House of Lords examined the compatibility of a statutory scheme that required people under immigration control who wanted to marry to get permission from Home Secretary with the ECHR right to marry. The Lords accepted that the scheme served an important function of preventing sham marriages (designed to advance a prospective immigrant’s domestic rights) – thus overturning a declaration of incompatibility that had been issued – but rejected the regulations applying the scheme, which rejected all applications from people who were in the UK without leave or on only short stays. While marriage is not (presently) part of Victorian law and the Charter has no right to marry, this decision may have some relevance to decisions by the Registrar of Births, Deaths and Marriages on whether or not to register relationships, in light of the Charter’s right of families to ‘protection’ by the State.

• Discrimination against Mormons: In Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56, the House of Lords rejected a complaint by the Mormons against a law that provided a rate reduction only for public places of worship, which excluded Mormon temples (which only Mormons can enter.) The majority applied the difficult rule of international human rights law that largely limits equality rights to the enjoyment of other protected rights (which arguably also applies to Charter s. 8) to hold that there’s no right against discrimination when it comes to differential building rates. (They followed an equally dubious decision that rejected a challenge to a law that provided relief from child support obligations to people who re-partner, but only with someone from the opposite sex.) Lord Scott of Forscote felt uneasy about this denial of rights, but held that any discrimination against non-public places of worship was justified because ‘secretive’ religions are divisive. Christ!

• Rights of tenants: In Doherty & Ors v Birmingham City Council [2008] UKHL 57, the House of Lords gave its third judgment on the difficult question of the obligations of public authorities to tenants. Faced with ECtHR decisions holding that some evictions processes were incompatible with tenants’ right to respect for their home, the Lords refused to further widen the common law remedies against public authorities, holding that to do so would undermine the decision of the UK parliament to allow public authorities broad eviction rights in some instances. The decision (again) gives lie to Bob Carr’s claims about the problems the UKHRA supposedly holds for property owners trying to evict trespassers. It also re-affirms my doubts about the conduct of some Victorian lawyers in using the Charter to protect tenants from evictions by Victorian public authorities. Most importantly to me, this decision is highly notable for its detailed analysis of the UKHRA equivalent to Charter s. 38(2), a provision I think deserves a lot more attention.

• Admissibility of private diaries: In Lifely v Lifely [2008] EWCA Civ 90, the Court of Appeal dealt with a miserable battle between two brothers over their late dad’s milk business. One brother had earlier convinced a court that some of the milk proceeds were intended to be shared between both sons; however, the other brother had since discovered the first brother’s diaries, which seemed to contradict testimony that had been given about what had been agreed. The Court of Appeal rejected an argument that the right to respect for private life meant that the diaries shouldn’t be admitted; rather, not only should they be admitted as fresh evidence to contradict the earlier finding about the agreement, but the whole case should be revisited in light of the doubts the fresh evidence suggested about the first brother’s credibility. Interestingly, the case sounds a note of caution that the law on the protection of privacy may still have some way to develop and that inadmissibility may be the right remedy in an appropriate fact situation. Could be interesting in terms of the application of s138 of Victoria’s new Evidence Bill in civil cases.

• Politicised criminal investigations: Two fascinating and incredibly high profile decisions on the discretionary powers of criminal investigators. The Constitutional Court of South Africa, in two decisions, upheld most aspects of an investigation by the country’s independent national investigators (the Scorpions) into the business affairs of the country’s next president, Jacob Zuma. Zuma raised a number of his rights under the SABoR, notably arguing that his right to dignity (the core right of SA rights jurisprudence) was being infringed by the stop-start investigation. The Court’s decision was largely statutory, albeit with repeated reference to human rights, and largely upheld the need for workable investigative powers to scrutinise corruption (especially in light of Zuma’s apparent unwillingness to cooperate in the investigation.) In In Corner House Research & Ors, R (On The Application of) v The Serious Fraud Office [2008] UKHL 60, the House of Lords considered a decision of the Serious Fraud Office to drop an investigation of Saudi businesses after the Saudis threatened to stop cooperating in the war on terror. The Lords unanimously held that the decision was within the very broad ambit of prosecutorial discretion. This wasn’t an HRA case, but would seem to have relevance to the question of whether or not prosecutorial decision-making falls within the Charter s 38(2) defence to the conduct mandate.

• Parole boards: A brief mention of the Charter’s exemption of parole boards from the definition of public authorities in a Victorian case involving a challenge to the revocation of parole following an adverse drug test.

• Jack Thomas: It seems, he drew the short straw of Gleeson CJ and Hayne J as his special leave panel in his attempt to re-examine the Victorian Court of Appeal’s unfortunate decision to allow the Cth DPP a second bite of the cherry. Should be an interesting trial…

• Equal Opportunity Review: The release of a review of equal opportunity processes in Victoria, with an emphasis on consistency with the Charter. Some highlights: changing VEOHRC’s name to Human Rights Victoria and introducing a ‘duty to eliminate discrimination’, a conduct-mandate-like legal rule, but without some of the Charter s. 39 limitations.

I could say more about all of these, especially that tenancy case. Whether I have the time is another matter…

The Charter vs discrimination exemptions

Ever since the enactment of the Charter, Victoria has had two anti-discrimination laws. There’s this one:

8(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

And there’s also the Equal Opportunity Act 1995. They share a common definition of ‘discrimination’, but what else do they have in common? This question is the subject of two reviews of the EOA, one of its basic structure, the other of its exemptions. Of the exemptions, there are a slew of particular ones (like the sex and age exceptions to the rule against discrimination in sport) but also one general one:

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…..

Late last year, businesses involved in defence contracting gained renewals of their exemptions from the ban on nationality discrimination, on the basis of the need to comply with US regulations barring contractors who receive some information from giving it to people of other nationalities (including, as it turns out, people with dual nationalities.) The timing for these three-year exemptions – weeks before the full operation of the Charter – was interesting. Judge Harbison certainly noticed it:

I have advised the Applicants that on the next occasion that an application for exemption is made, the provisions of the Victorian Charter of Human Rights and Responsibilities Act 2006 will be operative. By reason of this Act, the Tribunal in considering any further exemption application, will be required to interpret the relevant provisions of the Equal Opportunity Act in a way that is compatible with human rights, as those rights are defined in the Charter. International law and the judgments of domestic, foreign and international Courts and Tribunals relevant to a human right may all be considered when interpreting a statutory provision.

But what difference will the interpretation mandate make? Well, according to a decision that just came down from the ACT’s equivalent to VCAT, nothing.

The margin of appreciation

This really has been a big week. My particular interest in criminal justice led me to ignore, until just now, the biggest human rights decision of the week: In re P [2007] UKHL 38. This case concerned the right of unmarried couples to adopt. The couple in this case were opposite-sex de factos, who had jointly cared for the mother’s kid for ten years and wanted to make that joint parenting (but not their relationship) ‘official’. That ambition was blocked by the Adoption (Northern Ireland) Order 1987:

14(1) An adoption order shall not be made on the application of more than one person except in the circumstances specified in paragraph[s] (2) …

(2) An adoption order may be made on the application of a married couple where both the husband and the wife have attained the age of 21 years.

The substantive human rights issue was whether this order was at odds with the ECHR’s equality rights.

One question under the ECHR is whether discrimination against unmarried couples if allowed. This depends on whether being unmarried is a ‘status’. Amazingly, the Court of Appeal held that being unmarried isn’t a status, but just a lack of status. Baroness Hale, while forgiving of the take of ‘family lawyers’ on this topic, held, along with the other laws, that lack of status is a status. This wouldn’t arise as an issue in Victoria, which, while having a closed list of attributes for the purposes of the Charter’s equality rights, has a somewhat lengthier list than the ECHR and includes both the presence and absence of marital status, which includes being in a domestic relationship or a registered relationship.

The other question is whether the discrimination is justified. Baroness Hale, along with some of the other Lords, raised her eyebrows at the couple’s decision not to marry:

It is therefore appropriate to look with deep suspicion at the reasons why a couple who wish to adopt are unwilling to marry one another. These are not the olden days when the husband and wife were one person in law and that person was the husband. A desire to reject legal patriarchy is no longer a rational reason to reject marriage. It is not expensive to get married. Marriage should not be confused with the wedding. The only rational reason to reject the legal consequences of marriage is the desire to avoid the financial responsibilities towards one another which it imposes on both husband and wife. Why should any couple who wish to take advantage of the law in order to become the legal parents of a child be anxious to avoid those responsibilities which could become so important to the child’s welfare if things went wrong in the future?

Man, what is her problem? But, anyway, Hale was willing to accept that the prospective adoptive parents crazy views shouldn’t be taken out on their (unfortunate) prospective adoptive child, who would also be discriminated against by the restriction on adoption to married couples. All the Lords were dubious about the Crown’s argument that marriage serves as a good proxy for testing the long-lastingness of a relationship. Putting aside some factual doubts about this – not that the Lords seemed to have those – they were unconvinced by the need to have any proxy at all, given that entitlement to apply to adopt was just the first step in a lengthy vetting process that looks to the best interests of children.

Instead, the big difficulty the Lords faced was the political sensitivity of the issue of adoption. They were all well aware of this, as the change in English law five years ago to allow unmarried couples (including, gulp, gays) to adopt was a painful process where the relevant provisions changed as the bill shuttled back and forth between the houses of parliament. It was pretty obvious that a similar change would not go down all that well in Northern Ireland. This issue of political sensitivity – who makes the call? – broke down to three sub-issues:

The right to Aussie Rules

The Charter, at last, is the lead story in the Herald Sun. And not, as I would have predicted, to pillory the statute for freeing a rapist or terrorist or some such. How could I miss the fateful interaction between Victorians’ human rights and Victorians’ main obsession? Alas, I’d voice my own views on AFL here, pursuant to Charter s. 15(2), were it  not for Charter s. 15(3)(b)…

The issue is girls in footy (as opposed to women on the Footy Show):

A 14-YEAR-old girl is attempting use Victoria’s new Charter of Human Rights to allow her to play finals footy with her local team. In what could be a precedent-setting case, Evelyn Rannstrom’s parents are arguing their daughter should be able to continue playing in the under-14s team at Gembrook Cockatoo Junior Football Club as they push for the finals. Ms Rannstrom has been denied an age exemption by the Dandenong Ranges Junior Football League to play in the under-14s as AFL Victoria rules exclude girls from playing once they turn 14 and discourage them from playing with boys above the level of under-12s.

Earlier this year, Ms Rannstrom’s parents lodged complaints against AFL Victoria at the Victorian Equal Opportunity and Human Rights Commission. However this failed and today the case moved to the Victorian Civil and Administration Tribunal where it was argued that under the terms of Victoria’s new Charter of Human Rights, she should be allowed to play. The Charter became law on July 25 last year.

Apart from that last sentence – a year out and ignoring the crucial commencement dates – this is an accurate summary. Nice to see that everyone’s dropping the Responsibilities these days.

The case looks set to be a test (if far from the only one) for the interesting question of the interaction between the Equal Opportunity Act 1995 and the Charter. Here’s my quick take on the issues:

Bob Carr vs the Constitution

Bob Carr was on RN’s Law Report today, repeating his case against statutes like the Charter. While the core of his case is the familiar claim that human rights law lets judges decide things that should be exclusively for parliament, his argument gets its teeth from two anecdotes:

• “British Columbia came up with a scheme to encourage doctors to practise there, with a finely tuned system of incentives. The provincial Supreme Court struck it down, citing section 6 (“mobility rights”) and section 7 (the “right to life, liberty and security”) of the Canadian Charter of Rights and Freedoms. Canada’s rural population is still under-served by doctors, thanks to judges who want to write society’s rules.”
• “[P]olice and bureaucrats in Britain anticipate getting overruled on human rights grounds and start to shape their responses. Pity the factory owner who, this month, had to pay pound stg. 20,000 to bailiffs to remove 40 Gypsies who had torn down a 2.4m fence and occupied his factory land. The police refused to act so as not to breach the travellers’ human rights.

To the Law Report’s credit, it interviewed  Brian Walters SC who (unlike Carr) identified the relevant British Columbia case and pointed out that the scheme – designed by a Commission, not parliament – was struck down on the basis that it gave preferential treatment to British Columbians (by grandfathering anyone in BC when the scheme was introduced.) So, the issue was not freedom of movement, but discrmination on the basis of residence.

Some further points about the British Columbian case are also worth making. First, contrary to Carr’s claim, the BC Supreme Court, far from ‘citing’ section 7 of the Canadian Charter, instead found that the scheme did not breach any of the doctors’ rights to liberty. The Court of Appeal, without giving the issue much consideration, agreed with the lower court. Second, the BC decision is not applicable under the Victorian Charter, because Victoria’s right against discrimination is limited to specific grounds, which do not include residence of a state. However, third, the BC scheme would almost certainly be struck in Australia under s. 117 of the Commonwealth Constitution:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

So, Carr’s BC example isn’t an argument against the Charter; it’s an argument against the Commonwealth Constitution.

And that’s no surprise, because his other example – the one about gypsies – echoes a familiar objection that was aired about the Commonwealth Constitution.

The rights of inhalers, the diseased, sex workers and blood donors

Another SARC report, another analysis of the rights of the less popular (and blood donors.) Alert Digest No. 6 of 2008 raised the following human rights concerns:

• Drugs, Poisons and Controlled Substances (Volatile Substances) (Repeal) Bill 2008: This bill removes the sunset clause from  a 2003 package of harm minimisation measure for kids who use inhalants, ranging from searches to confiscation of devices to detention until a willing carer arrives, all mediated by a requirement to act in the best interests of the child. SARC asked, not only whether these measures were reasonable limits on kids’ rights to movement, privacy, liberty and property, not to mention discrimination on the basis of age, but also whether adults were being discriminated against because the harm minimisation measures cut-off as soon as an inhalant user turns 18.
• Public Health and Wellbeing Bill: This massive bill was accompanied by 25 small-type Hansard pages of statement of compatibility. SARC’s report analyses the bill according to its effect on:
  • individuals: are measures to tell people who may be diseased to submit to testing and treatment (at pain of criminal penalties); control their movement (using force); require people involved in needle-stick and other incidents with medical workers, police officer and prison guards to be tested for disease (again using force); test the dead for disease; and control mass movements during health emergencies reasonable limits on the bevy of rights these measures engage?
  • activities: SARC focussed on brothels. Should parliament have a specific provision against sex workers being ‘required’ to service clients that only covers narrow circumstances (like clients refusing to wear a condom?) Should sex workers be allowed to tell clients the results of their compulsory medical check-ups? Should DHS officers be allowed to enter brothels at any time they please to check whether the towels are clean or everyone’s wearing a condom?
  • information: Here, SARC forcussed on blood donation, where donors and the Red Cross get a statutory defence from liability so long as blood is tested and donors are asked some questions. Should all men be asked whether they’ve had male-to-male sex in the last twelve months, or is a different question more appropriate?

• Public Wealth and Hellbeing Bills: Tax, appropriation, etc…

Don’t forget that SARC has advertised for public submissions on the Health bill. They close tomorrow.

The right to gay marriage

The Californian Supreme Court, in a 4-3 decision, has ruled that mere equality of legal rights for same-sex partners and married people isn’t sufficient; marriage must be equally available to gay and straight. Although it’ll be reported world-wide as a momentous event, it is just the latest of several courts to reach a similar conclusion, including the Constitutional Court of South Africa, various Canadian provincial courts and the top court of Massacussets. These decisions are automatically relevant to the interpretation of all Victorian legislation, including the Charter itself, under Charter s. 32(2):

32(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.

But there are some obvious caveats. First, the section says ‘may’, not must. Second, there are a number of other court decisions – notably in other US states – that followed the minority ‘separate but equal’ approach.

Third, the rights in the Charter are not the same as the rights in these other jurisdictions’ constitutions. Notably, the drafters of the Charter, in including a right to the protection of the family, deliberately left out the right to found a family. They cited the Commonwealth’s responsibility for marriage, but really this was a transparent attempt to dodge the vexed issue of gay adoption. Nevertheless, there is still a right to non-discrimination on the basis of sexuality and marital status in Charters ss. 8(2) and 8(3).

Finally, the overseas jurisdictions differ from Victoria in a crucial respect: