The right not to be hurt

A tiny Supreme Court judgment from a month back has appeared on Austlii. Daniels v Bayside Health [2008] VSC 472 involves an unrepresented man who is convinced that his son’s health and, possibly, his life is in danger from treatment he is receiving as an involuntary patient under the Mental Health Act 1986 at Thomas Embling Hospital. Bernard Daniels has been told be Dr Yolanda Lucire, a Sydney doctor, that his son Garth has been misdiagnosed as a schizophrenic and instead has had a variety of other conditions for the last ten years. Her opinion is that the treatment Garth is receiving, valium and zuclopenthixol, is likely to cause harm to him, in particular to his muscles. The treating doctors acknowledge that the medicine has its risks, but dispute the doctor’s diagnosis of a complicating condition called neuroleptic malignant syndrome.

Daniels senior lodged a review with the Mental Health Review Board but turned up at the Supreme Court because he wanted the medication stopped prior to that review. The Mental Health Act requires that all patients (and, presumably, as appropriate, their guardians) be told their rights. Recent new regulations specify that involuntary patients be told of their Charter rights in these terms:

The Victorian Charter of Human Rights and Responsibilities Act 2006 seeks to promote and protect certain human rights. The Charter defines the protected rights and requires public mental health services to act compatibly with these rights. The Charter also specifies when and how rights can be limited by law. For example, under the Mental Health Act 1986 you may be detained in a mental health service if it is necessary to protect your health or safety or the safety of others. However, any restrictions on your liberty and any interference with your rights, privacy, dignity and self-respect must be kept to the minimum necessary in the circumstances. If you have any questions about the Charter or how it might affect your treatment, contact one of the organisations described at the end of this statement.

This does a nice, if inevitably inadequate job, of explaining the nuances of the Charter. It doesn’t, for example, address the complex issue of whether the Charter places some fundamental new limits on treatment, notably when the treatment is a threat to someone’s health, as Lucire alleges in this case. The statement directs patients wanting more information to VEOHRC. It’d be interesting to know what they’d say in this circumstance.

Daniels senior raised the Charter in these terms:

In the course of his argument, Mr Daniels has raised a large number of matters, many of which are not really matters which I need or can determine at this stage. He raised questions of procedural fairness, the entitlement of his son not to suffer torture under the Charter of Human Rights and Responsibilities 2006, the entitlement of his son not to suffer death or to be at risk of death under the Charter.

Not a bad effort. Daniels has obviously read Charter ss. 9 and 10. The difficulty for him, alas, was that, testifying by phone before the Supreme COurt, Lucire didn’t support the claims of threats to Garth’s life or that there was an intermediate risk, e.g. to his heart muscles. 

Daniels’s reference to procedural fairness – it’s not clear what fairness issues were at stake – was presumably to Charter s. 24. At the Protecting Human Rights conference, I observed that the Attorney-General, intervening in a Mental Health Review Board matter, was described in the judgment as submitting that the right to a fair hearing doesn’t apply to mental health matters. However, Joanna Davidson, in the audience, publicly and firmly objected to my ‘mischaracterisation’, insisting that the issue only arose in passing and that she only canvassed the law briefly. Her vehemence carried the clear implication, before an audience with considerable interest in this matter, that the Attorney-General would never take such a miserly stance. That very public exchange would be quite a relief to many stakeholders in mental health, including Daniels. 

Justice David Byrne treated the matter with appropriate flexibility, deeming it to be an application for an interim injunction for a variation to Garth’s treatment order (even though no application was actually filed.) However, the application was dismissed:

In the circumstances and given the limited area of my concern in this type of application, I find myself not satisfied that the current medication is so dangerous as to warrant the intervention of the court, assuming that the court has the power to intervene in such a case. Accordingly, the application for interim injunctive relief must fail.

While Bryne’s stance is understandable, I’m not convinced that the test applied is appropriate in light of the Charter. While it’s clear that findings weren’t open about breaches of Garth’s rights to life and against degrading treatment, I think that things are a little different given a further Charter right: Continue reading

Transition in Indonesia

bali-bombers-executed-herald-sun_1226226932385Indonesia enacted its human rights law in 2000 and its constitutional court began operation in 2003. Its very first decision was to declare unconstitutional the retrospective application of Indoensia’s anti-terror laws to the Bali bombings. More recently, it issued a ten-year moratorium on the death penalty. And, today, the Bali bombers Amrozi, Mukhlas and Imam Samudra, who were convicted under Indonesia’s anti-terror laws, were executed for their crimes. It’s a case study of how transitional issues can cause a human rights law to go awry. Such issues, in a much less extreme form, also bedevil Victoria’s Charter.

SIx days after the Bali bombings, Indonesian President Megawati Sukanoputri issued an emergency decree setting out new terrorism offences. The Indonesian Legislative Assembly confirmed that law, as well as a further emergecy decree stating that the terrorism offences could be used against the Bali bombers. Various Bali bombers were soon convicted and sentenced to death. All of them raised constitutional objections to their trial and convictions based on this provision of the Indonesia’s Bill of Rights:

Art 28I(1) The rights to life, to remain free from torture, to freedom of thought and conscience, to adhere to a religion, the right not to be enslaved, to be treated as an individual before the law, and the right not to be prosecuted on the basis of retroactive legislation, are fundamental human rights that shall not be curtailed under any circumstance

This provision is clearly relevant to the Bali Bombers, who were convicted under a law passed six days after the bombings and whose life is very much at stake.

Article 28I(1) covers the ground of a number of  Charter rights, including:

9 Every person has the right to life and has the right not to be arbitrarily deprived of life.

27(1) A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.

(4) Nothing in this section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done.

The omission of an equivalent to Charter s. 27(4) in Indonesia is controversial, given the repeated claims of human rights abuses by former regimes. The Bali court trying the bombers all rejected the bombers constitutional arguments, on the basis that the bombings were offences against international law and that in any case they should be limited in accordance with an Indonesian Constitutional provisions concerned with respecting the rights of others, which could be regarded as roughly similar to Charter s. 7(2).

However, when a lesser participant in the bombings – Maskyur Abdul Kadir – took his conviction for pariticpating in the bombings to the Constitutional Court in 2004, the Court, in a 5-4 decision, construed Art 28I(1) according to its literal terms and declare Indonesia’s terrorism law unconstitutional in relation to its retrospective effect, including to the Bali bombings. Since 2004, all prosecutions in relation to the Bali bombings have since been conducted under the existing Criminal Code, covering offences like murder and using explosives (which still carry the death penalty.) There would seem to be no cogent objection to retrying the people already convicted – including  Amrozi, Mukhlas and Imam Samudra – under those laws.

So far, so straightforward. But then things get weird. And deadly. Continue reading

Brennan (and Hulls?) on abortion

Frank Brennan writes on Charter s. 48 in Eureka Street. Or does he?:

If Victoria is to legislate abortion on demand, there is a need to consider whether all health professionals ought to be conscripted into such a regime. Has the legislature got the balance right here? Presumably the legislators assume the majority of health professionals will have no ethical or moral objection. The issue is whether the minority of health professionals who do have such objections should be forced to act against their conscience.

One would have thought that the Victorian Parliament, armed with its freshly minted Charter of Rights and Freedoms [sic – sigh, that’s Canada’s upbeat name. Victoria’s isn’t so cheery!],  would have the appropriate machinery at hand to find that balance. After all, the Charter guarantees freedom of thought, conscience, religion and belief. The Charter does permit parliament to override prescribed freedoms in rare circumstances. However Professor George Williams and his fellow proponents of the Charter were ‘strongly of the view that it would be inappropriate to use the override clause to sanction a breach of important rights such as freedom of conscience, thought and religion’. They did not tell us that such rights could be overridden without need for an override or even without need for parliament to consider the impact of proposed legislation when those rights could ‘interfere’ with the right to abortion on demand….

Section 48 provides that ‘Nothing in this Charter affects any law applicable to abortion or child destruction’. It was included in the Charter to accommodate the concerns of Professor Williams and his colleagues that the Charter not purport to resolve the question of when life begins for the purposes of defining the right to life. The Williams committee stressed that such a provision was ‘not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement.’ They made what must now be seen by their political masters to be a remarkably misconceived observation: ‘In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law.’

While Brennan is quite correct in characterising Charter s. 48 as an unlimited form of override for laws like clause 8 of the Abortion Law Reform Bill, he’s wrong to blame George Williams and his Human Rights Constultation Committee.

Charter s. 48 did not appear in the Committee’s draft bill. Instead, they followed the ACT approach of limiting the right to life (but no other rights) to the born. However, the unnamed folks who I refer to in this blog as the ‘meddlers’ – the ones who changed the Committee’s draft before it went to Parliament,  invariably for the worse – deleted the limitation on the right to life and instead inserted the risible Charter s. 48. The current one-sided rights argument being won by the pro-life movement may be what is now being reaped from the meddlers’ sowing.

Rob Hulls’s surprise decision to vote against the bill may provide a clue as to who the meddler was on this occasion. He hasn’t revealed the reasons for his conscience vote, with Brumby labelling it a private matter. I’m dubious about that claim: conscience votes are arguably the only reason for voters to pay attention to who they are electing, rather than the party he or she belongs to. Not knowing what Hulls’s objection to the bill was makes it impossible to for his electors to guess how he may vote if the issue or a related one returns to parliament in the future. But maybe the mysterious appearance of Charter s. 48 in the Charter bill, combined with a dropping of the Committee’s gloss on the right to life, shows what Hulls was worried about.

Was Hulls unhappy with denying a key human right to the unborn? This theory gets support (of sorts) from the parliamentary debate on the bill.

Continue reading

The Charter vs methane

The name, ‘Brookland Greens‘, is a warning of its own. It’s the kind of environmentally happy moniker property developers always seem to choose for their least salubrious new estates. In this case, proximity to landfill has left the residents exposed to a greenhouse gas, with methane turning the grass brown and threatening to explode. The residents face having to move out and they and the entire suburb of Cranbourne risk plummeting property prices, but they aren’t the only ones who are sweating. The issue of compensation is looming large.

Interestingly, VCAT is at the centre of the crisis. Casey City Council and the Environmental Protection Agency both opposed the building of the estate so close to the landfill, citing the risk from methane, but VCAT overruled them. To VCAT’s credit, it has put the key judgments up prominently on its website, including the most damning judgment from May 2004 by VCAT senior member Richard Horsfall and member Sylvia Mainwarring:

At the conclusion of the hearing of application P1277/2003 we gave an interim decision that we accept Mr Taylor’s submissions and case that… the required buffer distances of the subdivision from the landfill should be 200 metres, not 500 metres, and should be measured from the active tipping and batter areas, and that the 200 metre buffer zone under the Cranbourne Development Plan could be progressively reduced as the tipping areas/cells are completed , capped and gas extraction systems installed and operating…

Yikes. Lucky for them (and the lawyers and experts) that they have immunity. [EDIT: And that would be why Ben Hardwick, spruiking for a class action, has written a column today shifting the blame from VTAC to the EPA.]

Lately, planning has been very much on the mind of Kevin Bell, VCAT’s new president and a keen follower and developer of Charter law, who spoke at the State Planning Conference a week back. His powerpoints are available, but not his speech. According to The Age:

He said the charter’s provisions would affect “the conduct of almost all holders of statutory power exercising functions of a public nature, including municipal councils and their staff”. Issues in Europe have included the use of land by homeless or transient people and the forced removal of elderly people from run-down accommodation. Justice Bell told the conference the critical human right often cited in Europe was respect for private and family life and the home. “The European cases emphasise the need for planning decision makers to pay careful regard to how the planning decision will impact on the human rights of the various people affected,” he said.

Charter s. 13(a) isn’t the only right at stake. I stumbled across a quite interesting ECtHR case from 2004, the same year VCAT made its fateful decisions about Brookland Greens and its tip. Öneryildiz v Turkey [2004] ECHR 657 is a Grand Chamber judgment that happens to involve the responsibility of state planning authorities for the danger of methane from a rubbish tip. However, the case involved much more significant rights than respect for home life. Continue reading

The Charter vs black holes

Tomorrow is ‘big bang day’, when CERN (the European Organisation for Nuclear Research) turns on its Large Hadron Collider, a 27km circumference particle accelerator, the world’s largest and most powerful. Particle physicists hope the collisions inside the LHC will produce outcomes that confirm some particle physics theories, notably by allowing observation of a Higgs Boson, the so-called ‘god particle’ that is a possible linchpin of the Standard Model of particle physics.

All this talk of big bangs and god particles is bound to give some people the heeby-jeebies. Some scientists argue that the LHC may create some new objects that pose a danger to the LHC, nearby Geneva or the entire planet, notably the possibility of a stable micro black – and all consuming – hole. And some of those have launched lawsuits to stop CERN from turning on the LHC. One action, in Hawai’i, relies on the fact that the LHC receives a lot of US funding to found an argument based on US statutory rules, such as the Environmental Protection Act. The other action, in the European Court of Human Rights, relies on human rights law, in particular the European equivalents to these Charter rights:

9 Every person has the right to life and has the right not to be arbitrarily deprived of life.

13 A person has the right- (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with…

I guess there won’t be a lot of privacy in a black hole. On the other hand, the collapse of the entire planet into a singularity will do wonders for the rights against discrimination.

The crux of the human rights argument is a version of the precautionary principle, as well as a debate about the ethics of scientific research. Continue reading

SARC on abortion

The Scrutiny of Acts and Regulations Committee’s report into the Abortion Law Reform Bill has now been tabled in parliament and is available on the Committee’s website. Because of the Minister’s view that Charter s. 48 ruled out the application of Charter s. 28 to this Bill, SARC’s report will be the only official analysis of the Bill’s compatibility with the Charter that will be available for this week’s parliamentary debate. SARC noted some opposing considerations on this question:

The Committee observes that:

  • Charter s. 48 is limited to ‘any law applicable to abortion or child destruction’. The Bill is not (yet) law.
  • Charter s. 48 provides that nothing in the Charter ‘affects’ a law. Statements of compatibility have no legal effect.
  • Clause 10, in extending the definition of ‘serious injury’ in the Crimes Act 1958 to cover destruction of a foetus, goes beyond the current definitions of abortion and child destruction (which are presently limited to intentional conduct) to cover reckless destruction, threats to destroy, conduct causing danger of destruction, negligent destruction, and dangerous driving causing destruction of foetuses.

SARC, in any case, has a Charter reporting function under s. 17 of the Parliamentary Committees Act, which is not part of the Charter itself and therefore is not affected by Charter s. 48.

SARC’s report identified four issues of Charter concern with the Bill:

  • Decriminalisation of abortion: The Commitee observed that compatibility depends on whether or not foetuses have Charter rights (i.e. whether they are ‘human beings’ under Charter ss. 3(1) & 6(1)) and, if so, whether or not decriminalisation is a reasonable limit on any right of foetuses to have their life protected by the state under Charter s. 9. These questions are discussed by Germany’s Federal Constitutional Court, notably when unification raised the question of the constitutionality of East Germany’s very liberal abortion laws.
  • Potential criminalisation of late abortion: The Committee was concerned that the combination of: (1) provisions permitting late abortions ‘only’ where two doctors have a ‘reasonable’ belief that abortion is appropriate in the circumstances; and (2) a provision extending the criminalisation of intentional serious injury without ‘lawful excuse’ to include foetal destruction that was not in accordance with the Bill; might mean that doctors face the spectre of liability to serious prosecution if they make an unreasonable decision about the appropriateness of a late abortion. This may potentially be an unlawful interference in the right of patients to privacy under Charter s. 13(a).
  • Mandatory referrals: The Committee thought that a provision requiring doctors with a conscientious objection to refer patients seeking an abortion to doctors without such an objection might be incompatible with those doctors’ right not to be coerced away from practices informed by their beliefs under Charter s. 14(2).
  • Exemptions from the Charter: The Committee was also concerned that the extension of the definition of serious injury in the Crimes Act to include some abortions or child destructions may have the effect of exempting a number of major crimes from the Charter (pursuant to Charter s. 48).

It’ll be interesting, perhaps, to see whether the Charter features in the coming free debate and vote.

The Charter vs the Pill

Over at The Court, there’s a lengthy discussion of a 5-4 decision of Chile’s Constitutional Court striking down a decree requiring the contraceptive pill to be distributed through the public health system as incompatible with that country’s right to life. The majority held that: (a) life begins at conception; (b) the right to life is absolute; (c) it’s possible that the contraceptive pill stops fertilised gametes from implanating.

The Charter permits (but does not require) a consideration of the decisions of Chile’s (and everyone else’s) courts on human rights issues in determining the meaning of Victorian statutes:

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.

So, the Chilean decision could be considered when interpreting Charter s. 9:

Every person has the right to life and has the right not to be arbitrarily deprived of life.

This provision differs from the equivalent in the ACT HRA in not specifying that life begins at birth. (The Chilean provision specifies that the right to life includes those ‘about to be born’!)

However, even if Charter s. 9 is interpreted as protecting life from conception, it’s unlikely that the remainder of the Chilean decision will be followed here. Continue reading