Wrapping up 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A very Charter Christmas

shacIt must be the silly season, because why else would The Age cover the Charter?:

STUDENT squatters will try to use Victoria’s charter of human rights to stop their eviction from Melbourne University-owned buildings. The students — who have been occupying the Faraday Street terrace houses in Carlton for the past four months — were summonsed to appear in the Victorian Supreme Court yesterday for an eviction hearing. The Student Housing Action Collective want to use the terraces to create a student housing co-operative, but the university wants to develop it into off-campus student space.

Teishan Ahearne, from the collective, accused the university of using the Christmas break to move against the squatters. “The university is playing Mr Scrooge, attempting to evict homeless students on the eve of Christmas. Their actions are utterly unjust and sneaky,” she said. Yesterday the court heard that the university had begun the proceedings to comply with a building notice issued by the City of Melbourne. That notice said the buildings had to be vacated by January 7.

But Chris Povey, for the students, said his clients would seek to invoke Victoria’s charter of human rights to prevent the university from moving them on. He told the court that should the students be evicted many of them faced homelessness. Justice Cavanough agreed to adjourn the hearing to January 5, but ordered any applications under the human rights charter had to be filed with the court by December 30.

So, the students can spend Christmas in their terrace houses, but, thanks to nasty Charter s. 33 and Practice Note No. 3, they’ll have to spend their holidays swatting up on the Charter.

Alas, as I’ve discussed several times on this blog, the intersection of tenancy law and human rights law is a perfect storm of the Charter’s curmudgeonly operative provisions:

  • First, the students need to find a right that has been breached. In conrtast to some of the more heartrending (or maddening) human rights tenancy cases of yore, this one doesn’t seem to involve any families or kids, so Charter s. 17 won’t help. Nor are there discrimination issues. So, everything will have to rest on the narrow shoulders of Charter s. 13(a)’s right against arbitrary interferences in the ‘home’.
  • Second, there’s the problem that the Residential Tenancies Act‘s statutory language isn’t exactly amenable to re-interpretation to prevent ‘eviction into homelessness’. And there’s also the problem that any such friendly interpretation will be contrary to the rather unfriendly purposes of statutory tenancy law (and, if Hansen rules, may go further than the reasonable limits jurisprudence allows.) (I’ll take the students’ word that they have nowhere to go, though it does remind me of some former friends from my uni days who stole from the Salvo’s. ‘Who’s poorer than us?’, they asked. Fortunately, they both have jobs in top overseas unis now. Maybe that theft let them crawl out of the poverty spiral.)
  • Third, there’s the conduct mandate route. But: (a) is the Uni a public authority?; (b) is eviction incompatible with the Charter right against arbitrary interference in the home?; (c) does the RTA provide the uni with Charter s. 38(2) cover? (d) is relief against eviction one of the non-Charter remedies that can squeeze through the thicket of Charter s. 39?

Bah humbug!. But at least the students may emerge (from their studies and their terrace houses) with some very handy expertise on the limits to Victoria’s Charter….

(Charterblog will, unsurprisingly, go quiet for a couple of days. Alas, there’ll be some more surprising quiet not too long after that. See the flurry of posts around New Years’ Eve….)

Charter s. 39 vs tenants

The interaction between residential tenancy law and human rights law is a major issue, both here and in the UK. VCAT has already used the Charter to suggest a narrower reading of a provision of the Residential Tenancies Act that would allow eviction. But, in the UK, recent cases have suggested that the interpretation mandate and the conduct mandate have limitations (to preserve parliamentary sovereignty) that might make the Charter less effective as a relief against eviction for tenants than some people think. In particular, the interpretation mandate can’t be used to read broad limitations into a statutory eviction right and landlords who happen to be public authorities are probably fairly free to ‘give effect’ to their statutory eviction rights by acting more or less like private landlords. See here and here. A three-week old case  that just turned up on Austlii, confirms some of these limits and introduces a new one that’s unique to Victoria’s Charter, involving the first ever application of Charter s. 39 to refuse a remedy. Unfortunately, VCAT’s reasoning is more debatable. 

Director of Housing v IF [2008] VCAT 2413  involves, not eviction, but rather the Residential Tenancies Act‘s ‘compliance’ scheme, which consists of four stages: a ‘breach of duty‘ notice, a ‘compliance order‘ if the notice is breached,  a ‘notice to vacate‘ if the compliance order is breached, and, ultimately a ‘possession order‘ (i.e. eviction), if the notice isn’t complied with. Whew! In this case, the Director of Housing was attempting to get to the second stage with its tenant, IF. The problem was IF’s alleged conduct towards his neighbours:

The incidents described at the hearing by LS included once when IF threw a log of wood over the fence and hit LS’ wife on the head. LS said that he bought his son a small swimming pool but had to put it away and not allow him to use it. He described an occasion when IF exposed himself to the child. LS called the police, but when they came IF was in his underwear and so drunk that the police said they couldn’t do anything. LS said that every time his wife leaves for her work IF stalks her, walking behind her and calling her “bitch.” Once IF said to LS’ son “your dad is f…ing dead meat – we are going to get him killed.” There have been many threats of death. LS said that IF calls LS a “f…ing Columbian” and yells out that he is going to have LS killed. After the first hearing of this case, on 7 August 2008, LS had to call the police because IF was yelling out that he was going to have LS killed. LS said that IF yells abuse and threats over the fence, and so they have to stay inside and keep the back door locked.. Sometimes IF’s friend SW sits out the front with IF and also yells out abuse at L. LS said that last night – the night before this hearing – a neighbour died and IF, who had been drinking, was yelling out that “the f…ing Columbian killed her.

Broadly, the problem was IF’s alcoholism. LS’s difficulties had been going on for seven years, and (unsurprisingly) LS’s family was on a waiting list for alternative accommodation. A neighbour backed up LS’s account, but IF and IF’s friend blamed LS for the dispute. IF didn’t help his arguments much by threatening LS during the VCAT hearing.

On 24th June this year, the Director of Housing issued IF with a ‘breach of duty’ notice, specifying four incidents of abusive behaviour in the previous month in breach of a statutory duty to not ‘use the rented premises… in any manner that causes a nuisance.’ (The more-apt second part of that duty, which refers to the ‘reasonable peace, comfort and privacy’ of neighbouring premises, wasn’t cited.) The provision governing breach of duty notices states:

208(1) A person to whom a duty is owed under a duty provision or that person’s agent, may give a breach of duty notice to a person in breach of that duty.

(2) A notice under subsection (1) must- (a) specify the breach; and (b) give details of the loss or damage caused by the breach; and (c) require the person, within the required time after receiving the notice- (i) to remedy the breach if possible; or (ii) to compensate the person to whom the duty is owed; and (d) state that the person in breach must not commit a similar breach again; and (e) state that if the notice is not complied with- (i) an application for compensation or a compliance order may be made to the Tribunal…

If someone leaves something smelly in a common area, it makes sense to tell that person to ‘remedy’ that in the ‘required time’ (14 days in most cases) and to not to it again. But it’s not so clear how notices work when the breach of duty consists of a course of conduct that evinces itself occasionally, as happened with IF. What does it mean to ‘remedy’ such a breach within 14 days? And what actions amount to ‘commit[ing] a similar breach again’? These issues were squarely raised by IF, because his neighbours had a quiet month after the notice was given, but another incident (the first of several, apparently) occurred again on 24th July. Did that mean that IF hadn’t ‘complied‘ with the notice, thus allowing VCAT to issue a compliance order?

VCAT Member Geneveive Nihill considered whether Charter s. 32 required her to consider whether or not an interpretation of s. 208 as obliging IF to refrain from abusive behaviour beyond the 14 day remedy period was a limit on IF’s rights. Apparently adopting Tate’s three-step approach to the interpretation mandate, she held that s. 208(1)(d) ‘engages’ IF’s right to privacy but also engages the right to privacy of IF’s neighbours (by promoting them.) Nihill skipped onto Charter s. 7(2) and asked Tate’s third ‘justification’ question. Unsurprisingly, justification was straightforward, given that the compliance scheme merely piggy-backs onto existing legal duties of tenants, which in turn piggy-back onto rights of their own. As enforcement schemes go, the RT Act’s compliance scheme is amazingly attenuated, with multiple opportunities for VCAT review, so it easily satisfied Charter s. 7(2)(e)’s ‘minimal intrusion’ test and the broader ‘proportionality’ test.

This is all well and good, but Nihill’s analysis suffered by not expressly considering the middle step of whether or not s. 208(1)(d) limited Charter s. 13(a). That would have involved considering whether or not s. 208(1)(d) was ‘arbitrary’ or ‘unlawful’. Equally, she also skipped s. 7(2)’s ‘subject under law’ requirement. Both of these tests focus on whether or not s. 208(1)(d) imposes a clear obligation on IF. Arguably, given it’s inaptness to breaches that consist of repeated incidents, it doesn’t. Does s. 208(1)(d) apply forever? Will a single moment of abuse breach it? IF, arguably, had no clear guidance on what would be a breach. Nihill was certainly aware of this problem:

I agree that there may be a different interpretation of the operation of section 208 in the light of different facts, and in particular if a person caused a nuisance in a way that was not manifestly similar to the nuisance described in the notice, or if the repeat of the nuisance took place a very long time after the notice of breach was served. In this case, I find that the breach committed on 24 July 2008 was the same as, or strikingly similar to, the previous breaches. I find that the period of time that has passed is not so long as to make it unfair or unlikely that the tenant would be aware that he was breaching the notice.

That’s all very reasonable, of course, but it treats the task of interpretation as one that can vary depending on the facts before the tribunal. As the UK tenancy cases argued, interpretation doesn’t involve declaring a statute applicable or not to a particular factual scenario, but rather developing a broad principle and seeing if the words can be interpreted to fit it. It may well be that the only way to make s. 208(1)(d) Charter-compliant (in the sense of not capturing the scenarios identified by Nihill and, in particular, providing intelligible guidance to people like IF about what they can and cannot do) is to read it in so narrow a manner that it doesn’t capture IF’s conduct in this case. As it happens, I don’t think such a narrow reading of s. 208(1)(d) was necessary in this case. Moreover, if it was, I think there’s a good argument that it would conflict with the purpose of the provision and, arguably, the Charter rights of IF’s neighbours.

The interpretation mandate is too broad a remedy to fix a provision like s. 208(1)(d) which straddles too many scenarios, sometimes limiting a tenant’s rights, other times providing crucial support for the rights of landlords and neighbours. Instead, a more appropriate remedy is the conduct mandate. The conduct mandate, in public housing cases at least, allows s. 208(1)(d) to be given a broad reading, but potentially ameliorates some of its negative effects by barring public landlords from applying it in individual cases where it would work unreasonably. The good news is that just such an argument was made by IF:

The tenant has made extensive and interesting submissions about the landlord’s obligations under the Charter. Essentially the tenant has submitted that the landlord is a “public authority” under section 4 of the Charter, and is therefore required by section 38 to act compatibly with the Charter. It must do so, submitted the tenant, when exercising its powers under the Housing Act 1983 with respect to the acquisition, disposal, development and management of land. In managing this tenancy, including making the decisions to serve a notice of breach and to apply for a compliance order, the landlord exercised these powers. According to the tenant, it did not do so in a way that was compatible with the Charter. I agree that the Director of Housing is a public authority as defined in section 4 of the Charter. This is clearly the case; the Director of Housing is a public official, and the Office of Housing (a unit of the Department of Human Services) is an entity established by a statutory provision that has functions of a public nature

The finding that the Director and the Office are public authorities is, of course, correct. 

Alas, Nihill held that, even if this argument was correct, she couldn’t do anything about it!:

After careful reflection, I do not consider that I have the jurisdiction to go behind the application made by the landlord, and review whether or not the landlord acted in a Charter compatible way in reaching the decision to make the application. In relation to this proceeding, in this jurisdiction, I can only make decisions about the provisions of the Residential Tenancies Act 1997 and the Victorian Civil and Administrative Tribunal Act 1998. The Residential Tenancies Act 1997 is very detailed. It provides jurisdiction for a wide range of decisions about residential tenancies, boarding house residencies, and caravan park residencies. It makes no distinction between private and public tenancies. It does not provide for the review of decisions made under the Housing Act 1983 by the Director of Housing.  Any challenge to the decisions of the Director of Housing made under the Housing Act would need, I think, to be brought in a different jurisdiction. The conduct of government bodies in the exercise of their decision making power is reviewable under the Administrative Law Act 1978.

If this is true, then it’s quite a problem, as it’ll mean that any public housing case will have to proceed in two courts: VCAT and the Supreme Court (and the latter is scarcely geared towards the quick informal hearings that are generally considered necessary to resolve residential tenancies disputes.) Nihill made it clear by a reference to the dreaded Sabet that her finding is a purported application of the dreaded Charter s. 39(1):

39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

So, this appears to be the first time the Charter’s remedies section has been used to deny someone a remedy.  Charter s. 39(1), you might recall, is meant to reduce the amount of litigation under the Charter; it’d be doubtful that this purpose would be achieved by forcing most public housing disputes into the Supreme Court. So, fortunately, it’s probably a doubtful ruling. Continue reading

The end of DNA database expansion

Back in March, I referred to a DNA database case before the European Court of Human Rights as the human rights case of the decade, pitting the clearest principles against the clearest practicalities. The House of Lords had unanimously ruled in favour of the practicalities, with one of the Law Lords, Simon Brown, issuing a concurrence just to say:

My concern is simply to indicate how very clear a case this seems to me to be. Indeed my only real problem now, following full investigation of the case with the assistance not only of the parties but from Liberty too, is in discerning any coherent basis on which the challenge can still be sustained.

Yesterday,  the seventeen judges of the European Court’s Grand Chamber unanimously upheld that very challenge, ruling firmly in favour of principle. It’s a stunning development that will put both DNA databases and human rights law at a crossroads.

The applicants in S & Marper v UK [2008] ECHR 1581 were both residents of Sheffield. In early 2001, at the age of 11, LS was arrested on a charge of armed robbery. Two months later, Michael Marper was arrested on a charge of harassing his partner. On June 14th, both were cleared, S by acquittal, Marper by a notice of discontinuance after he reconciled with his partner. Both then asked for their fingerprints and DNA, taken on arrest, to be destroyed, but the police refused, saying they wanted to retain the information for use in future criminal investigations. The police’s plan was made possible by a 2001 change in UK law, following an unsuccessful attempt by two people linked to crimes after their DNA should have been destroyed to challenge their convictions. The new amendment to the Police and Criminal Evidence Act (PACE) allowed the permanent retention of fingerprint and DNA samples in most circumstances:

64(1A) Where – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution.

Subsection (3) required the destruction of DNA taken from people never suspected of an offence (e.g. bystanders, such as residents of a burgled house who DNA is taken to eliminate irrelevant crime scene samples.) So, PACE s64(1A)  allowed the retention of all suspect samples, even when the suspects were cleared. S & Marper’s challenge to the police’s decision under the Human Rights Act was dismissed, in turn,  by a trial judge, the Court of Appeal (in a 2-1 decision with Lord Sedley dissenting) and the House of Lords, before today’s stunning reversal by the ECtHR.

The European Court’s decision was based on the ECHR’s right to privacy:

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The government argued that the only way that DNA can interfere with privacy is at the time of sampling (it wasn’t disputed that S & Marper were lawfully and, it seems, properly sampled) and at the time of matching to an unsolved crime (when the relevant privacy right is the unfortunate right to get away with such crimes undetected.) But the ECtHR has long held that the mere storage of data can amount to an interference with privacy, depending on its content and context.

So, is the storage of DNA and fingerprints an interference? The ECtHR held that this test was satisfied for biological material (because of the wealth of genetic information it contains), the tiny DNA profiles on databases (because they can still be used to show relatedness and ethnic origin) and (overturning an earlier ruling) fingerprints (because they are stored on a computer allowing precise identification in a variety of circumstances.) It’s a little funny that the ECtHR’s reasoning on the most significant and contentious data, DNA profiles, was tied to some relatively recent side-uses of DNA profiles: familial screening (used to trawl the database for ‘partial’ profile matches, yielding possible relatives of the source of a crime scene sample. This technique was notably used to catch the UK’s ‘shoe rapist’, who was detetected after a partial match to his sister, who was sampled after arrest for drink driving), possibly infringing family life too, and ethnicity tests (most famously used to identify London’s gerontophile rapist as Carribean, mostly likely frm the lower Winward islands.) Would cutting out these techniques save the UK database? Probably not, because the ECtHR’s reasoning on fingerprints (which have no such side-applications was based solidly on its traditional identification use, including the utility for computer assisted identification. DNA profiles, being digital, rather than analogue, are much more suited to comptuer-assisted identification (and, indeed, that is by far their primary database use.) I don’t know why the Court didn’t apply the same reasoning for both profiles and fingerprints. Anyway, the finding that retention of any of these things in an identifable form on a crime detection database breached Article 8.1 was a no-brainer (although, alas, a number of UK Law Lords failed the test.)

The really hard question is Article 8.2, i.e. justification. There’s no doubt that s64(1A) exists ‘for the prevention of disorder or crime’ (although some see the potential other uses as a big point.) But is retention ‘in accordance with the law’ and ‘necessary in a democratic society’? The ECtHR had some concerns about the former, because one of the s64(1A)’s use restrictions – ‘the prevention of.. crime’ – is alarmingly vague (ableit tracking Article 8.2 precisely!) But the Court didn’t decide that point, instead focussing on necessity. The Court, while skeptical of statistics from the UK showing the number of crimes, notably murders and rapes, supposedly solved through database matching to profiles retained from cleared suspects, acknowledged that retention would contribute to crime prevention and detection. However:

The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed…; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

The Court’s conclusion was that ‘the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.’

So, that’s the judgment. But what’s really interesting are the implications: Continue reading

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 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 right to information

I’ve complained before about the shoddy standards of Victorian courts when it comes to giving the public useful access to their judgments. Whereas all other mainland jurisdictions in Australia place all higher and intermediate court judgments (and quite a few lower courts ones) on their own websites or Austlii, only the Supreme Court of Victoria and VCAT (plus a couple of minor entities) give their decisions to Austlii. A new NSW practice note seeks to formalise the removal of judgments from Austlii when their contents might prejudice a trial. Assuming you buy into the whole ‘suppression order’ dogma (regardless of effectiveness or proprotionality), that makes sense in theory. In practice, it just means that various judgments vanish in arbitrary ways, often indefintely. For example, despite Joseph Thomas’s trial ending some weeks back, nearly all the various judgments in his case (from Cummins J’s appalling admissibility ruling in 2005 to Curtain J’s appalling sentencing judgment more recently) are still not available on Austlii.

I raise this because of a particular mystery about VCAT decisions. I recently covered the interesting Charter/Disability Act decision, LM [2008] VCAT 2084. The day of my post, the judgment vanished from Austlii and is yet to re-appear. Who knows why? Maybe there’s a concern about LM’s privacy, but it is surely important for Charter applications to be on the record. As someone who’s spent years trying to prise case files out of courts, I’m well versed (in that narrow field) with bureaucrats’ tendency to keep information to themselves whenever they can (and to use that control over information to deflect attempts to establish any right to get it.) The dawn of FOI legislation (albeit never applicable to courts) has changed the courts’ rhetoric from ‘mine!’ to ‘we are protecting litigants’ privacy!’, but their conduct is identical. Will the dawn of the Charter make any difference?

In a three-week old VCAT decision that mysteriously materialised on Austlii this week, McDermott v Victoria Police (General) [2008] VCAT 2183 – read it quick before it vanishes! – the applicant, trying to prise documents out of Victoria Police’s Ethical Standards Branch and the Office of Police Integrity about a rejected complaint he made to them, tried out a vague Charter argument to convince VCAT to override some FOI exemptions:

In his reply to counsel for the respondent, counsel for the applicant also submitted that the public interest override should be invoked because the process of sampling was unfair, the Charter of Human Rights had not been observed, the process was one-sided and his client was hampered in his case by being placed at a severe forensic disadvantage by his inability to have all the file available for the benefit of cross-examination of the police witnesses.

VCAT Senior Member Noreen Megay didn’t resolve what the Charter argument was all about:

In counsel’s reply he referred in passing to the obligations imposed by the Charter of Human Rights but this was not a matter articulated during the running of the hearing. Certainly it was referred to, again in passing, in a preliminary argument about the subpoena issued by the Tribunal at the request of the applicant and was dealt with in the preliminary ruling.

Meh. Another inarticulate attempt to raise the Charter, without (it seems) any attempt to identify either operative provisions or rights that are engaged. (Charter s. 49(2) shouldn’t be a problem. The incident complained of and the complaint itself occured in 2006, but the complaint, and the ensuing FOI application, were lodged in 2007. Charter s. 49(3), though, might bite to the extent that McDermott was relying on the conduct mandate as it applies to Victoria Police, who failed to make a timely decision in November 2007 and ulitimately reached its conclusion in December 2007.)

So, what operational provisions were at issue? Probably both the interpretation and conduct mandates. The relevant provision of the FOI Act is this one:

50(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

This section’s foundation is the fact that, often, government agencies have a choice on whether or not to release information. Public authorities must now make that choice in accordance with the Charter’s conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

If not granting access would limit someone’s Charter rights, then access must be granted (subject to the Charter s. 38(2) defence, which presumably would apply in the case of some exempt documents.) Section 50(4) of the FOI Act has been interpreted as only permitting VCAT to make such a decision on an agency’s behalf if the public interest ‘necessitates’ it. But, if the conduct mandate requires entities to grant access, then perhaps s50(4)’s concept of ‘public interest’ should be interpeted as encompassing that very circumtance? (This would be subject to such an intepretation being consistent with s50(4)’s purpose. I’m no FOI wonk, so I have no idea.) On one reading of s50(4), VCAT is standing in place of the original decision-maker ‘the same powers as an agency’ (which include duties, like Charter s. 38(1)), so arguably VCAT is bound to order release under s50(4) if the agency should have released.

But all of that is by-the-by unless there is a right being limited. Continue reading