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. Continue reading

The Charter vs taxi passengers

taxidriverOctober 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. Continue reading

More on the sex offenders’ challenge

I happened to be in the legal precinct today and dropped by to listen in at the sex offenders’ challenge in the Court of Appeal. Pamela Tate was speaking (presumably for the Secretary, rather than with her ‘neutral’ hat on intevening for the Attorney-General. At least, that’s sure how it sounded.) There were nine barristers there (presumably three each for the two fiends – I spotted Kris Walker. Some VEOHRC staff were there, but it didn’t look like the commission was intervening. [EDIT: Nope, they are intervening, and will speak after the S-G. So, maybe I’m wrong and the A-G was intervening too? It’d be handy if they could colour-code those wigs of theirs.] There was no talk of a declaration, so I assume none of the required Charter s. 36(3) notices are out on that one.  

It’s dangerous to try to sense the mood when you only watch part of a case – as the mood can be the opposite when the other side speaks – but the case didn’t seem to be going at all well for Tate, with Maxwell and Weinberg both hammering into her. Nettle was quieter and even helped her out every now and then.

Anyway, some tidbits I picked up:

  • A comity of errors: One issue (possibly the only one) is the interpretation of ‘likely’ in s11 of the SSOMA. It certainly does seem to be in the cards that the CoA will overrule Callaway in TSM (despite only being a three-judge bench.) Indeed, both sides seemed to disagree with Callaway, with Tate describing his judgment as somewhat confused (which it is.) Hilariously, Tate’s argument is that Victoria should follow the present approach of the NSW Court of Appeal. Regular readers will recall that the NSWCA reached that interpretation reluctantly out of comity with Callaway in TSM! To sustain her argument, Tate had to claim that the NSWCA’s actually misinterpreted Callaway and somehow stumbled onto the right answer.  It’s hard to see how this sort of error can be persuasive, especially when the NSWCA clearly said that, but for comity, it wouldn’t have followed TSM at all but rather would have adopted a stricter standard (which, presumably, Tate thinks is the wrong standard.) Tate, trying to get away from Tilman, relied instead on the follow-up case, Cornwall. Readers will recall that Cornwall was the first bloke the NSWCA refused to detain, ruling that there was no ‘high degree of probability that he was likely’ to re-offend and that electronic supervision would do. He had his bracelet off and melted away within 30 minutes. Surprising that the Victorian government thinks that that’s the perfect test. I guess that Tate will argue that, although the NSWCA stated the correct test in Cornwall, they nevertheless misapplied it to the facts. 
  • A non-‘trivial’ bar: Tate’s big pitch was that, whatever the test is, it shouldn’t be quantitative. That’s because she knew that the court would then go for the ‘more likely than not’ standard that the NSWCA would have backed were it not for TSM, which would certainly narrow the SSOMA scheme. Not that she said that; rather, she argued (1) it would go against the legislature’s choice to use the word ‘likely’, which she claimed (to Weinberg’s incredulity) wasn’t quantitative. Maxwell kept point out that all that was clear is that the test isn’t normative (e.g. a Briginshaw-like standard that re-adjusted itself according to what issues were at stake.) Tate very reluctantly agreed with that. 2) It would encourage over-reliance on statistical expert evidence. Weinberg’s response was that the best way to stop statistical evidence is to stop asking for it and listening to it. Maxwell was concerned that trial judges need an intelligible standard. He could hardly keep a straight face when Tate suggested that defining ‘likely’ to mean ‘a sufficiently substantial risk’ would provide the required certainty (and wouldn’t be ‘normative’.)  The judges then mooted the idea that the bar should be high indeed, given how extraordinary ESOs are. Tate firmly stated that the bar should not be ‘trivial’. That’s quite a concession. She then embarked on some stats to show that of the 150 eligible offenders released last year, the Secretary only called for reports on 34 and only sought orders on 10. Of those tenm seven were granted and the other three were… pending. Weinberg asked whether that meant that none had been refused. ‘Um’ retorted the S-G, until Weinberg pointed out the math. Tate countered with more stats, which suggested that of 40 court applications to date, ‘several were withdrawn’, one was reversed on appeal and one was rejected. A high bar indeed. Attrition stats are always tricky in a discretionary system aren’t they?
  • A non-criminal process for locking up criminals: ‘So, you’d better address Charter s 7(2) then’, said Maxwell. Uh, there’s an intervening step, said Tate: have any rights been limited? That is indeed true, but why she wanted to embark down that road is beyond me. But embark she did, passionately arguing that Charter ss. 25(c), 26 and 27 didn’t apply because of Fardon, the High Court’s umpteenth refusal to apply Kable. Maxwell was a bit dubious about the relevance of Chapter 3 to the meaning of ‘punish’, but Tate pressed Gummow’s  ‘normative scheme’ approach. According to Gummow, ESOs are nothing at all like criminal sentencing, because ESOs are simply triggered by guilt but are imposed for other reasons. As opposed to sentencing, which… um…. anyway. Tate also mentioned a UK case that Maxwell snorted was about non-contact orders, not supervision. Somehow, the model litigant didn’t see fit to talk about Belcher, where the NZCA held that almost identical legislation was punishment for the purposes of NZBoRA’s criminal process rights. I guess that’s in the written arguments. But why wouldn’t she be responding to what her opponents said on that? I hope they know about it! Weinberg raised the fact that SSOMA says that proceedings are criminal. Tate said that was not-determinative but just a starting point and was just a mechanism to ensure that the Secretary had the same obligations as a prosecutor. Weinberg was confused: does the Secretary usually have less obligations than a prosecutor? Nettle chimed in with something about having to call adverse witnesses. Maxwell suggested that, if the proceedings are criminal, then maybe contested facts need to be proven beyond reasonable doubt? Tate said she was sur that the test was balance of probabilities. But you’ve gotta wonder if that will be true in 2010 when s141 of the Evidence Act 2008 kicks in.
  • ESOs and helicopter mums: Tate did concede that ESOs limited one right: freedom of movement. (It’s not clear whether or not the fiends raised any others. Self-incrim, alas, didn’t get a look-in.) So, it’s time for 7(2). Tate started by saying that you need to look closely at the nature of the right. Weinberg said: movement’s pretty important isn’t it? It’s essential to liberty. Tate argued that, at international law, ESOs don’t engage the right to liberty at all. Maxwell asked her to say that again so that no-one misunderstands it. Ouch. She valiantly insisted that ESOs could be likened to mum and dad telling the kids to phone then when they get to their destination. Weinberg pointed out that, regardless, movement was high on the scale in 7(2)(a). Tate sounded unhappy about that. I wonder what’s high on her scale? Life, I guess. What I don’t get here is that all the arguments were about the mandatory bits of the ESO scheme. But an ESO also exposes you to the discretion of the Adult Parole Board, which can order stuff like mandatory medical treatment, having to ‘reside’ at Ararat Prison, who you can associate with, whether you can use the net, etc. There are plenty of rights limitations there. The Board, of course, isn’t bound by the Charter. So why don’t ESOs engage all those rights? It’s not clear that that’s what the sex offenders are arguing, though. Strange.

And that was it for the day. They’re at it again tomorrow, but I’ll skip it.

Again, caution is necessary, but Tate seemed to know that she’s going to ‘lose’ at least 2-1, in the sense that the judges are going to toughen up the TSL threshold to ‘more likely than not’, at least and cite the Charter as the reason. I can’t help but think that Tate is just going through the motions now and planning a High Court appeal, where the judges who were in the majority in Fardon will presumably be more sympathetic to her take on things.

The sex offenders’ challenge

My guess last post was right. (Of course, presumably the whole legal community knew this, but not me.) It’s on!:

Two convicted sex offenders are invoking Victoria’s human rights charter to appeal against being given an extended supervision order in what is a legal first.

One of the applicants is a child sex offender jailed for more than 10 years for his crimes. The man, whose name is suppressed, was convicted for sex crimes against his teenage daughter, another teenage girl and his adult partner. He was given a 10-year extended supervision order when he finished his jail term after a County Court judge found a “high degree of probability” he was likely to further offend. However, his lawyer Graham Thomas SC told a Court of Appeal hearing today his client was not a high-risk child sex offender and therefore not eligible to to be subject to the order.

Mr Thomas also said the sentencing judge had indicated she did not believe the man was suitable for an order but later changed her position. But counsel representing the secretary to the Department of Justice, David Grace QC, said the man’s crimes were premeditated and opportunistic. Mr Grace said the sentencing judge included in her reasons the fact the man had shown a lack of insight into his behaviour by denying his wrongdoing. He said the man jumped bail on the day he was due to attend his court hearing on his application for an extended supervision order and had refused to take part in a sex offenders program, despite being offered many times. Mr Grace said the man continued to “thumb his nose up at authority” and suggested he tried to create relationships with females with children while he was in jail so he could groom them for sexual offending.

The second sex offender is appealing an eight-year extended supervision order imposed on him by the County Court on the basis it is too long. The man, whose name is also suppressed, was jailed for more than a year for indecent assault and will also use the charter to argue his case.

Victoria became the first Australian state to implement a Charter of Human Rights and Responsibilities on January 1 and it is the first time it will be considered by Victoria’s appeal court. The hearing before Justices Geoffrey Nettle, President Chris Maxwell and Mark Weinberg continues tomorrow.

Um, it’s actually the sixth time the Charter will be ‘considered’ by Victoria’s appeal court. The appeal court cited the Charter once in 2006 and four times again this year, including in its appalling Underbelly decision. Here’s hoping, though, that this will be the first time the Court actually does the Charter justice, in analysis if not in the final result. Interestingly, all three judges in this hearing are Charter virgins. The case, argued today, is listed for a second day of argument tomorrow. [EDIT: And here’s the Hun’s take. The tabloid refers to the offenders as ‘sex fiends’ (fair enough, I guess) and, as is the norm, gives more details of the legal argument than the Age.]

But what is being argued? The article is tantalisingly vague. I can see three types of rights arguments could be made about extended supervision orders (ESOs): Continue reading

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.

Continue reading

The alienable right to drive

Losalini Rainima has just completed a nine-month stint in a NSW prison for driving without a valid licence. This surprising punishment is the result of her of her refusal to accept conditional bail or, following her lengthy remand in custody, a good behaviour bond, or, following her sentence, the conditions of parole. Her refusal in each case was, I assume, for the same reason as her refusal to accept NSW’s driving licence regime. As she told her magistrate:

God has given me a right that is given to me, it’s within me. … I have a right of passage. I have a right of movement. All living things are given graces; the birds fly, the fish swim, the kangaroo hops, and I’ve been given the graces to drive.

She speaks, of course, of a right that Victorians have under the Charter, albeit given to them not by God but by the Victorian parliament:

12 Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

Appeals to divine law typically fall on deaf ears in courts, but her appeal was accompanied by s78B notices. There, she had the assistance of members of UPMART.

What is UPMART? Curiously, those members told Hidden J that UPMART wasn’t an acronym – perhaps it’s a discount chain? – and declined to say what the name meant. However, the arguments put in their s78B notice were curiously similar to those on the website of a Victorian organisation also called UPMART. Its site offers over twenty phrases spelt out with the letters U, P, M, A, R, T including ‘Unity Pulse of Marriage Assented by Rite of the Trinity’, ‘Universal People Measuring Abundance in Real Time’ (a variation of Time and Relative Dimensions in Space?) and, at the top of the list, ‘United People Movement Against Road Tolls’. They also offer quite a bargain: a driver’s licence that is immune to both fines and tolls and lasts for life. The catch: it’s not offered by VicRoads, but rather the common law. Indeed, the site contains this disclaimer:

PLEASE NOTE the initiatives of UPMART are based on the opinions of some of the members of UPMART, who are not legally qualified, but whose opinions are based on their knowledge of common law, constitutional law, natural law and bible codified common law. The initiative of common law vehicle registration is the most controversial of the initiatives and is presently not recognised by the laws of the states and Territories, and persons participating in this initiative may be exposed to prosecution under the laws of the state or Territory. It is alleged that this initiative is in conflict with State Statutes. Likewise other initiatives also challenge State and Territory laws.

UPMART’s lawyers may well find some surprising comfort, in relation to their views on the inalienability of the common law from state legislation, in the view of Victoria’s Solicitor-General, Pamela Tate, which has protected the common law from being affected by one state statute, the Charter.

Alas, UPMART’s support did not win the day for Ms Rainima. In Rainima v Magistrate Freund [2008] NSWSC 944, Hidden J held:

As I understand it, a distinction is sought to be made between a challenge to the validity of the relevant legislation, on the one hand, and an assertion that the State does not have the power to deny an inalienable right, on the other. For the purpose of this case, however, the distinction is illusory. Either the driver licensing legislation is valid or it is not. If it is, all of us, including the plaintiff, are bound by it and no inalienable right resides within any of us to free us from the obligations which it imposes. Driver licensing is governed entirely by statute, and there is no such thing as a licence “pursuant to common law”. No credible challenge has been mounted to the legislation and there the matter must end.

But that’s nasty NSW. Why doesn’t UPMART bring a similar action in Victoria, where there is a distinction between parliamentary sovereignty and human rights?:

36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

There are a couple of catches though: Continue reading

The new parliamentary dialogue

Today’s Alert Digest from SARC (whom I advise, but that’s it) has two interesting instances of the new sort of dialogue that the Charter has caused.

One  is a second instance of SARC reporting that a statement of compatibility overstated the rights issues raised by a bill. In this case, like last time, the disagreement concerns the Charter’s right to freedom of movement (which, unlike freedom of expression, has no qualifications for other laws or the public interest):

12. Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.  

The statement of compatibility to a bill that overrides Melbourne City Council’s attempts to evict an international flower show from Carlton Gardens thus not only described the potential for the flower show to limit Victorians’ freedom of movement (i.e. in and out of the gardens in the month when the show is on) but ran through a full Charter s. 7(2) analysis about how such a limit is compatible with our free and democratic society. Oy. On some views, a similar analysis is needed every time a traffic light turns red. I think that such analyses trivialise the Charter Continue reading