The right to review

The central question in the recent Charter-focused Mental Health Review Board ruling was what happens when this provision is breached:

30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.

The respondent had been on a CTO since 2005, but the extension of his CTO in early 2007 was not only not reviewed within 8 weeks, but not reviewed at all prior to a further extension early this year. So, was his CTO still valid?

Ordinary law is good at posing questions like this but not at answering them. As the Brennan High Court observed in Project Blue Sky v ABA [1998] HCA 28:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

Various High Court cases refer to such hard to pin down tests as parliament’s intent, the consequences of the various options and (in the unfortunate Gleeson era) circular tests about jurisdiction. The Mental Health Act has its own interpretative provision, but it also pushes in competing directions on this issue:

4(2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that-

(a) people with a mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and

(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances.

Unsurprisingly, the MHRB favoured the interpretation that s30(4) had no effect on the validity of CTOs, a reading it said would preserve the best possible care of the mentally ill (continued compulsory treatment, naturally) while allowing the Board ‘an appropriate degree of flexibility’. (It did, however, hold that s30(4) required substantial compliance, although apparently this could be met by  not doing a review at all for twelve months!)

This sort of interpretative neverland is the raison d’être of the Charter’s interpretation mandate:

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

But there’s a problem: the Charter only contains a review right for criminal convictions and sentences (Charter s. 25(4)) or to a review of the lawfulness of detention  (Charter s. 21(7)). Even if CTOs were considered to involve detention (because of either the requirement to attend a medical facility for treatment or the potential for an order on where to live), Charter s. 21(7) wouldn’t assist in interpreting s. 30(4) because it is only satisfied by review by a court (rather than a tribunal like the MHRB.) So, what rights are engaged by a provision requiring a review? Continue reading

A judgment at last!

Many thanks to Phil Lynch at HRLRC for forwarding me a judgment of the Mental Health Review Board, brought down on Tuesday. And here’s the excitement: of its 43 pages and 247 paragraphs, about half of them  – particularly 12 pages and 53 paragraphs of actual analysis by the Board – aredevoted to the Charter. That is easily more Charter analysis than has appeared in all the reported Charter judgments in Victoria combined. In fact, I’m pretty sure that it’s more than anything that has appeared in all the ACT judgments on the HRA combined as well. It is, in short, what I’ve long been waiting for: a detailed, step-by-step, analysis of some key operational and rights provisions of the Charter in an actual contested tral, where it’s obvious that both parties have made full arguments on these points and the decision-maker has taken those arguments seriously.

The downsides: It’s not a formal precedent in any way, as the MHRB is not a court. Indeed, the MHRB doesn’t even have to be comprised of lawyers, though any questions of law must be resolved by the Board’s legal member, in this case a Mr John Lesser. On the other hand, lawyers represented each side and the Attorney-General intervened and was made a party. The judgment doesn’t carry an official name and is not available on Austlii (whose database on MHRB judgments seems to have died sometime in 2006.) Nor is it available on the MHRB website. But perhaps it’ll be posted on the HRLRC website or somewhere soon enough. Anyway, I have it, thanks to Phil Lynch. [EDIT: Alas, the judgment isn’t publishable as it needs anonymising. I’ll refer to the man involved as ‘the respondent’, until I can come up with something better. For a detailed description and critique of the judgment, see Lynch’s analysis. FURTHER UPDATE: The anonymised judgment has now been published here.]

Here’s the short summary (and it’s a weird and new experience indeed to have more than two lines to ‘summarise’; it took me over an hour to read the thing once, and I will need to read it several times more!):

Back in 2005, the respondent was placed on a community treatment order (CTO) by his psychiatrist. CTOs are the mildest form of coercive power used against people with mental illnesses and are available when people have been made the subject of an involuntary treatment order (which can authorise someone’s detention for the purpose of being treatment) but a psychiatrist decides that detention isn’t necessary:

14(2) A community treatment order is an order requiring the person to obtain treatment for their mental illness while not detained in an approved mental health service.

(3) A community treatment order- (a) must specify the duration of the order, which must not exceed 12 months; and (b) may specify where the person must live, if this is necessary for the treatment of the person’s mental illness.

Clearly,  ‘Mildest’ doesn’t mean ‘mild’.  The respondent in particular is very unhappy about his and wants out of it, so he can stop taking his medication and move on to milder treatment like valium.

CTOs expire twelve months after they are made but they can be extended. GK’s CTO has been extended three times: in April 2006 (by the MHRB), in February 2007 (by the respondent’s psychiatrist) and January 2008 (again by his psychiatrist.) The problem is at the February extension was never reviewed by the MHRB as required by this provision of the Mental Health Act 1986:

30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.

As is often the way, s30(4) doesn’t specify any consequences for breach. The respondent argues that the breach meant that his CTO expired sometime in 2007 and that the purported extension in 2008 and the planned review of it by the MHRB that was about to happen couldn’t happen, with the result that GK is free to stop taking his medication until his psychiatrist restarts the whole process. But the alternative argument is that nothing happened to the CTO and GK remains subject to a CTO. So, the principal (but not sole) question for the MHRB is a question of statutory interpretation: what are the consequences of a breach of s30(4) of the Mental Health Act 1986? This question is a tricky one in statutory interpretation and their are competing High Court cases on the issue. Applying non-Charter law, the MHRB, perhaps unsurprisingly, rejected the respondent’s interpretation. But what difference does the Charter make? Continue reading

The fruits of torture

Previously on Charterblog:

Freidrich von Metzler, banker: “My son has disappeared and someone wants… one million Euros!”

Magnus Gäfgen, law student: “Jakob’s still alive, but I won’t say where!”

Wolfgang Daschner, Vice President of the Frankfurt Police: “Tell me where or my colleague will inflict great pain (but no injuries!)”

Magnus Gäfgen: “I killed Jakob. I’ll show you where to find his body and some other evidence implicating me!”

Frankfurt Regional Court: “Daschner, I sentence you to a suspended fine. Gäfgen, I sentence you to life imprisonment! ”

Magnus Gäfgen: “What about my human rights? Also, I want money!”

The following takes place between Article 3 (right against torture) and Article 6(1) (right to a fair hearing) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (but the rights are the same in the Charter.) Events take place in surreal time.

In last night’s decision, Gäfgen v Germany [2008] ECHR 565, a seven judge chamber of the European Court of Human Rights, despite rejecting Gäfgen’s claims that he was threatened with rape and pain even after the police realised that Jakob was dead, held that the young law student, killer and incompetent blackmailer was treated inhumanely, albeit with ‘mitigating factors’:

The Court would like to underline in this connection that in view of the absolute prohibition of treatment contrary to Article 3 irrespective of the conduct of the person concerned and even in the event of a public emergency threatening the life of the nation – or, a fortiori, of an individual – the prohibition on ill-treatment of a person in order to extract information from him applies irrespective of the reasons for which the authorities wish to extract a statement, be it to save a person’s life or to further criminal investigations. Moreover, the applicant’s treatment must be considered to have caused him considerable mental suffering, which is also illustrated by the fact that, having persistently refused to make correct statements until then, he confessed under the influence of such treatment where he had hidden J. Thus, the Court finds that the treatment the applicant was threatened with would, if carried out, amount to torture.

However, the questioning lasted for some ten minutes only and, as was established in the criminal proceedings against the police officers (see paragraph 46 above), took place in an atmosphere of heightened tension and emotions owing to the fact that the police officers, who were completely exhausted and under extreme pressure, believed that they had only a few hours to save J.’s life, elements which can be regarded as mitigating factors… Furthermore, the threats of ill-treatment were not put into practice and have not been shown to have had any serious long-term consequences for the applicant’s health. 70. In the light of the above, the Court considers that in the course of the questioning by E. on 1 October 2002 the applicant was subjected to inhuman treatment prohibited by Article 3 of the Convention.

But six judges of the court held that the German courts had already provided Gäfgen with sufficient remedies for his treatment, as they had recognised that the law student was treated illegally and that his rights were breached, exposed his tormentors to career penalties and thrown out the confessions Gäfgen made in the days and weeks after the treatment:

It is true that the applicant has not to date obtained payment of any compensation in the official liability proceedings he instituted against the Land of Hesse; these proceedings are currently still pending. Having regard to all the circumstances of the case, the Court finds, however, that in a case such as the present one, in which the breach of Article 3 lies in a threat of ill-treatment (as opposed to actual physical ill-treatment attaining the threshold for Article 3 to apply), redress for this breach is essentially granted by the effective prosecution and conviction of the persons responsible. The Court finds that, not least in view of the wide public approval of the treatment to which the applicant was subjected, the criminal conviction of the police officers responsible, which acknowledged in an unequivocal manner that the applicant had been the victim of prohibited ill-treatment, was essential in affording him redress in a manner other than by the payment of a sum of money.

So, Gägner might have got some money if he had been courageous in the face of the threat of torture to the point where the German police actually had to torture him. Or if the German people hadn’t been so solid in their support for the threats. Or if his almost-torturers hadn’t been given a slap on the wrist…

And what about the small matter that Gäfgen is serving a life sentence based on a trial that was full of evidence that he had directed the police to immediately after he was threatened with torture? Continue reading

The Charter vs Jack Bauer

The TV series 24 – whose shtick is its real time format, where every second on your TV equates to a second of plot development – was originally pitched with a plot about a couple on their wedding day. But it was quickly switched to a terrorism drama, which it has maintained for six seasons now. Terrorism is a natural for the real time format, because of the recurrence of ticking bombs, inevitably with red LED countdowns, or their equivalents: ticking viruses, ticking nerve gas, ticking nukes, ticking deaths of all varieties.

And all that ticking has given the show its signature moral dilemma: what do you do when the one person who knows where the bomb (or equivalent) is won’t tell you? For Jack Bauer, the series protagonist, there’s no dilemma at all. He just tortures them with whatever’s handy: drugs, an electric cord, even a towel. The series writers know where they stand, because Bauer’s approach usually (though not always) saves more lives than its costs.

But, in real life, there’s a legal issue. In 1999, the Supreme Court of Israel was asked to rule on the legality of torture in a hypothetical ticking bomb situation, in a case on whether the state security service could apply low level torture methods (akin to those approved by Bush) on suspected terrorists:

In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information?

The Supreme Court ruled that the criminal law defence of necessity could not provide any advance authority for torture, because the nature of the defence was an improvised response to an emergency. However, the Court did not resolve two further questions:

We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect.

In the last couple of years, Germany’s courts have had to deal with both of these questions in an extraordinary non-terrorism case. And, this Monday, the European Court of Human Rights will have to resolve the second one.

In 2002, 11-year-old Jakob von Metzler disappeared shortly after getting off his school bus. An hour later, a ransom letter was sent to the boy’s family – his father was a senior bank executive – demanding 1 million Euro. The money was dropped off at a tram station and the police observed a law student, Magnus Gäfgen, the brother of a friend of Jakob’s, picking it up. Gäfgen, who later said that he wanted to impress his wealthy girlfriend and lead a life of luxury that matched his planned status as a lawyer, banked part of the money. He was arrested at Frankfurt airport trying to leave the country. At his interrogation in Frankfurt’s central police station, the law student accused others of perpetrating the kidnapping and claimed that the boy was alive, citing several hiding places none of which yielded Jakob. Cue the ticking clock.

Concerned that the boy was starving or exposed to the elements somewhere, the Vice President of the Frankfurt police, Wolfgang Daschner, signed an official note ordering a subordinate to inflict pain on Gäfgen (without causing ‘injuries’) under medical supervision. Within ten minutes of being confronted with this threat (which Gäfgen claimed included the prospect of being raped by fellow detainees) and without any inflicting of actual pain, Gäfgen confessed that he had killed Jakob and directed the police to the lake where the body had been dumped and other evidence tied Gäfgen to the kidnapping. Gäfgen later confessed to the murder and kidnapping to the police and  before a court. These events created an extreme dilemma for the German courts. What were they to do now with Gäfgen and Daschner? Continue reading

Bob Carr vs prison health

In a parliament known for its high percentage of lawyers (in contrast to Victoria’s), I forgot that Bob Carr is a rare exception: a journalist. So, I perhaps he can forgiven for not doing the very basic legal research required to test his rights statute anecdotes, which, it seems, he (or his UK mate) probably just gathered by googling. Here are his two UKHRA claims concerning prisoners:

In Scotland, because of a delay in placing toilets in prison cells, the Scottish Law Reporter estimates that prisoners may be entitled to awards totalling pound stg. 76 million ($158.7 million) because their cells violated the European Charter of Fundamental Rights. The Government had been caught up with another priority, expanding drug rehabilitation programs for inmates. Last year, pound stg. 750,000 was paid to 197 heroin-addicted prisoners who successfully argued that cutting short their treatment while in prison breached their human rights.

Now, he has the law right in both cases but he left out some interesting facts  and made one serious misrepresentation.

One interesting fact is that the ‘Scottish Law Reporter‘ isn’t, despite its name, a professional legal journal but rather a blog (and who would trust what’s written in a blog?) In fact, this blog mostly just sets out others’ comments and the entry apparently relied on by Carr (for the claim about the conflicting government priorities) was actually an Oped written by Lord McCluskey. He happens to be a long-time critic of the HRA (and the Canadian Charter) whose strident criticism of the HRA back in 2000 (including aspersions cast on particular European nations and the claims of ‘convicted prisoners [and] men engaged in homosexual conduct in private’), delivered in a Scottish newspaper right after he rejected an appeal of Dutch nations raising their ECHR rights, saw that decision overturned and him effectively barred from all future HRA cases. No wonder he author of the blog (“Legal Beagle’) described the OpEd as ‘pontification.’ Carr’s journalism skills seem to be a little rusty!

Another curiosity is that, in contrast to his willingness to mention the relevant rights in his BC doctors anecdote, Carr (unlike McCluskey) somehow failed to mention that the main right in issue in both of the cases described by Carr was the right against ‘degrading treatment’, which, in Europe and Australia is protected in the following terms:

10 A person must not be- (a) subjected to torture; or (b) treated or punished in a cruel, inhuman or degrading way…

Fancy giving the courts a say (when it comes to statutory interpretation and executive discretion) on issues like this? (The toileting case also relied on the right to privacy, but only as an alternative if the degrading treatment argument was incorrect.)

Also, neither of the payouts he mentions was ordered by a court, but was rather the product of a a legal settlement between the various crowns involved and the prisoners, in each case with the crown insisting that it careful chose between meritorious and unmeritorious claims. But there were earlier court decisions in each case. The Scottish case involved a remandee who had suffered from extreme eczema from the age of 2 months who, despite suffering an infected outbreak, was placed in a cell block that used the toileting practice of ‘slopping out’ – basically, you and your cellmate shit in a bucket that you  and other prisoners poured into a communal trough up to four times a day, a practice long abolished elsewhere in the UK and slated for abolition years earlier in Scotland before funding was diverted – and not moved despite having one of the worst outbreaks a prison doctor had ever seen. The heroin case was a ECtHR ruling involving a heroin-addict who died three weeks after being imprisoned, having spent most of the time of vomiting. The ruling was based on poor medical response to her dehydration, but the English authorities were probably a little chilled by the Court’s endorsement of her treatment with heroin withdrawal medication, as they had recently switched to a ‘cold turkey’ approach to heroin addicts. In short, both cases – and the resulting settlements – concerned the duty of the state with respect to prisoners’ health, hardly a matter that is typically regarded as the proper realm of parliamentary politics.

And what of Carr’s delicious claim that the Scottish toileting problem was the result of diversion of funding to drug rehabilitation, which presumably would have been handy to those heroin-addict prisoners (or at least any Scottish ones?) Continue reading

The Charter and mental health

MH6 v Mental Health Review Board (General) [2008] VCAT 846 is a sad case about a man who was thrown off his horse back in 1982 and suffered a brain injury. Detioration and imprisonment for indecent assault ensued and he ended up committed to Mary Guthrie House. Despite the warm and fuzzy name, this is a high secure detention facility for adults with brain disorders. While the average stay is 6-12 months, MH6 has been there since 2002. He now wants out.

Standing in his way is the Mental Health Act 1986, which provides for continued involuntary treatment:

36 (1) This section applies on an appeal or review for a patient who is detained in an approved mental health service under an involuntary treatment order.

(2) If the Board considers that the criteria in section 8(1) do not apply to the patient, the Board must order that the patient be discharged from the involuntary treatment order.

(3) If the Board is satisfied that the criteria in section 8(1) apply to the patient, the Board must confirm the involuntary treatment order.

MH6 disputed the application of one of the s8(1) criteria:

(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.

His counsel tried to rely on the Charter:

Mr Hancock in his written submission contended that in making any determination under s 8(1)(e), I must consider this provision of the Mental Health Act in light of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (The Charter). Without drawing to my attention in what way, and where relevant, which particular parts of the protected rights claimed were engaged, Counsel simply submitted that the following sections of the Charter were relevant :

10 Protection from torture and cruel, inhuman or degrading treatment

12 Freedom of movement

21 Right to liberty and security of person

22 Humane treatment when deprived of liberty.

His submissions in support of his contentions as to the application of those sections of the Charter were one and the same as those set out at the commencement of my consideration of the application of s 8(1)(e). Mr Hancock did not elaborate further on how the sections of the Charter applied.

Those do seem to be the relevant rights, especially given that Charter s. 10(c) contains a right against non-consensual medical treatment. Continue reading

Pepper and porn

Two recent Victorian police actions seem to cry out for Charter analysis. One is the use of capscicum spray at the Australian Open, which arguably is an unjustified breach of the rights of (at least) the uninvolved spectators to not be treated in a degrading way and to security. The question of remedies (especially damages) is much less clear.


The other action that sparked my Charter interest is the arrest of everyone’s favourite teenage party animal on, of all things, producing child pornography. This is only interesting if the ‘child pornography’ is – as some suspect – mobile phone footage of consensual conduct with a person who is just under 16 (or appears to be) with the knowledge of all involved, i.e. a technical and trivial instance of child porn. If that’s the case, then the arrest reeks of ulterior motives, e.g. vengeance or stopping the lad from doing the media rounds, motives that arguably make his arrest arbitrary. There’s also an argument that criminalising harmless aspects of teenage sexuality (if that’s what this was) is a breach of freedom of expression, though that’s not a claim that is likely to go down well with the Victorian public!