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. Continue reading

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: Continue reading

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: Continue reading

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. Continue reading

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: Continue reading

The right to relationship ceremonies

The Federal Governement’s threat to veto the ACT’s bill for civil partnerships focussed on its provision for an official ceremony. The first ACT Civil Union Act (until it was vetoed by Ruddock) contained the following provision:

11 How civil union is entered into

(1) Two people who have given notice to an authorised celebrant in accordance with section 9 of their intention to enter into a civil union with each other may enter into the civil union by making a declaration before the authorised celebrant and at least 1 other witness.


(3) The declaration must be made by each person to the other and must contain a clear statement that— (a) names both parties; and (b) acknowledges that they are freely entering into a civil union with each other.

Robert McClelland’s view is that such a ceremony ‘mimics’ marriage. Instead, the ACT will have to follow Victoria’s lead. Victoria’s new Relationships Act 2008 provides as follows:

6 Application to register a registrable relationship

Persons who are in a registrable relationship may apply to the Registrar, in a form approved by the Registrar, for registration of that relationship…

7 Requirements of application for registration

An application under section 6 must include or be accompanied by–

(a) a statutory declaration from each of the applicants verifying that the applicant– (i) consents to the registration; and (ii) is not married or in a registered relationship; and (iii) is not in another relationship that could be registered under this Part…

10 Registration

(1) If an application to register a registrable relationship has not been withdrawn under section 9, the Registrar may register the relationship in accordance with this section.

So, registering a relationship just involves doing a stat dec and then queuing up at a counter and watching some bored public servant type on a computer. No marriage-mimicking here!

But the ACT government also made a further announcement:

[T]oday I have directed my Department to make arrangements for administrative ceremonies to be conducted by the Registrar General or her delegates once the bill is enacted,” Mr Corbell said. “These ceremonies will have no legal status but will provide couples with the opportunity to publically reaffirm their written declaration of commitment.

I’ll leave it to others (hello Robert McClelland!) to ponder the mysterious difference between this approach and the ACT’s preferred approach. But one interesting question this raises is whether a similar approach will be taken in Victoria. And, indeed, whether the Victorian government has any choice in the matter, given the Charter. Continue reading