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

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

Positive obligations under the Charter

Amidst all the excitement here in Victoria, I’ve been neglecting overseas developments. Two cases this week are interesting in the light they shed on the positive obligations in the Charter. At the Protecting Human Rights Conference, I called for the repeal of some nineteen sections of the Charter, including the definitions section. The latter call was a touch painful, because although nearly all the definitions in Charter s. 3 are bad, there is one important but neglected one:

3(1) In this Charter-… act includes a failure to act and a proposal to act

The only Charter provision that uses the word ‘act’ (in its non-statute sense) is the 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.

This section accordingly sometimes make it unlawful for a public authority to do nothing. I suspect, though, that even without Charter s. 3, the conduct mandate would oblige the government to act in certain situations. The extent of those obligations is quite interesting.

summumaphorismsmonument_lgIn one case being argued this week before the United States Supreme Court, the issue concerns the obligations of governments to promote free expression by weird-sounding religious groups. One such groups of oddballs, the Fraternal Order of Eagles, likes to donate massive stone monuments of the Ten Commandments for display in public parks. One of its monuments has been duly displayed in a public park in Pleasant Grove, Utah for the last thirty-eight years. The plaintiffs before the Supreme Court are another group of oddballs, Summum, who want the agency running the public park to accept their donated stone monument containing these Seven Aphorisms:

  1. SUMMUM is MIND, thought; the universe is a mental creation.
  2. As above, so below; as below, so above.
  3. Nothing rests; everything moves; everything vibrates.
  4. Everything is dual; everything has an opposing point; everything has its pair of opposites; like and unlike are the same; opposites are identical in nature, but different in degree; extremes bond; all truths are but partial truths; all paradoxes may be reconciled.
  5. Everything flows out and in; everything has its season; all things rise and fall; the pendulum swing expresses itself in everything; the measure of the swing to the right is the measure of the swing to the left; rhythm compensates.
  6. Every cause has its effect; every effect has its cause; everything happens according to Law; Chance is just a name for Law not recognized; there are many fields of causation, but nothing escapes the Law of Destiny.
  7. Gender is in everything; everything has its masculine and feminine principles; Gender manifests on all levels.

According to Summum, these are the real message Moses wanted to bring down from Mt Sinai. He was all ready to do so when he noticed the Golden Calf, raced back up the mountain and came back with a dumbed-down translation in the form of the decalogue of depressing and turgidly expressed ‘Thou Shalt Nots’ on the Eagles’ monument. Kinda like the difference between the Consultation Committee’s draft of the Charter and the version that got enacted after the meddlers did their bit. Summum’s case is that the Pleasant Grove City Council is obliged, if it is going to continue to display the Eagles’ version, to also display Summum’s, lest it commit the sin (and First Amendment infringement) of content-based regulation of public speech. The Council’s response is that the Eagles’s monument isn’t public speech, but rather government speech, which can reflect the government’s views. That’s a pretty dicey argument to make in the US, where the government is barred from establishing a religion. Not so scary here for the Victorian government. The appeal is from a 10th Circuit Court of Appeals decision in Sunnum’s favour.


The other case, In Re E (a child) [2008] UKHL 66, decided today by the House of Lords, concerns the limits to the government’s obligation to protect people from things that they have a right against, specifically the European equivalent to this Charter right:

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

The case concerned a horrific Belfast saga back in 2001, where loyalists in a North Belfast neighbourhood targetted Catholic children walking to and from school down Ardoyne Road, which passes through a Protestant estate in a predominantly Catholic area. There was no challenge to the police’s initial step of banning kids from the road altogether. Rather, the case concerned their longer term strategy:

When the new term commenced in September the police had been able to consider what strategy they would follow and what expedients they might adopt. A decision was made by them that their overriding priority was to do everything possible to enable the parents to take their children to school on foot along Ardoyne Road…. The expedient adopted was to station police and military vehicles along both sides of the road, creating a corridor through which the group of children and parents could walk. Police and soldiers were deployed on the protesters’ side and escorting police officers carrying long shields accompanied the group to protect them from missiles. This tactic proved successful, to the extent that no injuries were sustained by any children.

It was argued and accepted that this tactic, while protecting the kids’ lives, still exposed them to degrading treatment. At issue was whether the police should have done more to protect the kids, by barring the protesters from Ardoyne Road altogether. Continue reading

The Charter vs the ICCPR

During the second reading debate on the ART/Embryo/Cloning bills, the shadow A-G, not a big fan of the Charter or international human rights law, referred to both:

The Attorney-General is a very proud advocate, as we know, of his charter of human rights and responsibilities. That charter is based on the International Covenant on Civil and Political Rights of 1966. Article 23 of that covenant provides that: …

The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. The right of men and women of marriageable age to marry and to found a family shall be recognised.

So it seems to me that the international covenant to which Australia is a signatory and has undertaken to the international community to comply with is one that is founded on men and women forming a family and having a right to bring up their children and found a family on that basis….

There’s a reason he cites the ICCPR and not the Charter. The latter provides:

17(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

The differences are no accident. The EM says:

It is not Parliament’s intention to create a right to found a family in the Charter. Parliament intends that the term “families” be given a meaning that recognises the diversity of families that live in Victoria, all of whom are worthy of protection.

The deliberate broad definition of ‘family’ is consistent with the UN Human Rights Committee’s General Comment, which leaves definitional matters to member states:

The Committee notes that the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition. However, the Committee emphasizes that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23.

The reason for omitting the word ‘natural’ from the Charter, while not spelt out, is presumably similar. Doubtless, it might not have sat all that well with the artificial methods of reproduction contemplated in the Assisted Reproductive Technology Bill 2008. Speaking of artificial, what the hell is a ‘group unit’, anyway?

That the ART Bill was very much in mind was confirmed in the Consultation Committee report, Continue reading

An Un-Chartered conviction

A development I have long feared has come to pass:  a guilty verdict in a Victorian criminal case has been upheld despite a Charter argument that might have led to an acquittal. This year, most criminal cases where the Charter has been considered have been interlocutory or collateral matters: bail, DNA sampling, proceeds of crime, trial process, etc. The one exception was DPP v Zierk [2008] VSC 184, where the Charter was held not to apply (and Warren CJ, of course, made it clear that she’d blow it off anyway even if it had) but the defendant was nevertheless acquitted on ordinary statutory interpretation grounds.

Not so in Howe & Ors v Harvey; DPP v Tinkler & Ors [2008] VSCA 181, where the Court of Appeal upheld five findings by the Magistrates Court of breaches of s26 of the (since repealed) Children and Young Persons Act 1989, which provided:

26(1) A person must not publish or cause to be published—

(a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of— (i) the particular venue of the Children’s Court, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, in which the proceeding was heard; or (ii) a child or other party to the proceeding; or (iii) a witness in the proceeding; or

(b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or

(c) except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.


(a) In the case of a body corporate – 500 penalty units.

(b) In any other case – 100 penalty units or imprisonment for 2 years

The case concerned stories (arising in a chain of events recounted by Media Watch here) in the Herald Sun, Today Tonight and Sunrise to the effect that a 14-year old had ‘won a divorce from his mother… on the grounds of irreconcilable differences.’, accompanied by the usual blather about crazy authorities, spoilt brats and parents’ rights. The child had obtained a protection order from the Children’s Court under the then s84 of the CYPA (now s274 of the Children, Young Persons and Families Act 2005.)

Crucially, the various reports gave the child’s name and showed his photo, so it might seem a no-brainer that they breached s26. However, the Court of Appeal expressly ruled that s26(1)(a), at least, was ambiguous in one very relevant respect: does the ban only cover reports that identify the proceedings as Children’s (or related) Court proceedings, or does it extend to the situation here, where the reports only mentioned the outcome of the process and either didn’t mention the Children’s Court or buried it in a reference to ‘the authorities’.? The defendants pointed to numerous decisions elsewhere in Australia and overseas that read similar (but not identical) provisions narrowly, e.g. confining them to narrative accounts of proceedings or to photos while a proceeding was ongoing or to revelations that would have been understood by an ordinary member of the public. In each case, a narrower reading could arguably have meant that the various reports weren’t in breach of the section and, therefore, that the guilty verdicts were wrong.

It might also be thought that the defendants may gain little help from the Charter, because their rights are not the only ones at stake. Charter free expression is balanced against others’ rights, both internally and in two other express rights:

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria…

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

24(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

However, the defendants drew on powerful arguments from the case-law to the effect that a narrow reading of s26 is the appropriate way to strike the balance.

Notably, in Clayton v Clayton [2006] EWCA Civ 878, the UK Court of Appeal gave a narrow reading to a provision that was similar to s26(1)(b) (confining it to ongoing procedures), on three grounds. First, that a decision by the relevant court on a case-by-case basis (available under inherent jurisdiction) was preferable to a blanket decision. (Victoria’s Children’s Court has the power to suppress individual proceedings, whether or not s26 applies, derived from the powers of the Magistrates Court.) Second, that a blanket, open-ended and ambiguous ban would fail the ‘lawful restriction’ test for limits on human rights, while a specific ban issued by the court in question would make it clear to everyone what publications were permitted.  Third, that the penal context – note that s26 carries a potential prison sentence – meant that ambiguities should be resolved in favour of a narrower reading of a criminal provision. These concerns are all familiar parts of human rights law that are routinely applied to resolve difficult conflicts between competing rights and interests and, indeed, the UK case was expressly concerned with the balance between free speech and children’s privacy rights.

So, actually, it’s surely a no-brainer that, at least in the resolution of statutory interpretation questions that the Victorian Court of Appeal considered ambiguous, close attention should be paid to cases like Clayton v Clayton pursuant to Charter s. 32:

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.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

Alas, no:

Clayton can be distinguished on the basis that the Court of Appeal was required to interpret the legislation consistently with the European Convention… In the instant case, it was not contended in oral submissions that the Charter of Human Rights and Responsibilities Act 2006 should be applied in interpreting s 26(1), so the same considerations do not apply.

Oh dear. Continue reading

Three new (non-Charter) rights for Victorians

Amendments to the Equal Opportunity Act 1995 came into force today re-defining discrimination to include the following conduct:

  • unreasonable refusals by employers/principals/firms to accommodate the responsibilities that (a) people offered employment (b) employees (c) contract workers; and (d) partners in firms; have ‘as parents or carers’.
  • refusals by people who provide accommodation to allow a person with an impairment ‘to make reasonable alterations to that accommodation to meet his or her special needs’
  • refusals to ‘provide accommodation to a person with a visual, hearing or mobility impairment because that person has a guide dog’, including requiring that the dog stay elsewhere or charging a special fee

Unlike the previous amendments to the Act, these new rights do not add to or widen the definition of Charter rights. That’s because, while the Charter picks up the definition of discrimination in the EOA, it only does so in relation to discrimination on the basis of an attribute:

3(1) In this Charter… discrimination, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 1995) on the basis of an attribute set out in section 6 of that Act

However, the new anti-discrimination rights in the new amendments alter the definition of discrimination to create a new ‘conduct-based’ sort of discrimination that is different to discrimination on the basis of an attribute. Here are how the alterations look:

3 The objectives of this Act are- (a) to promote recognition and acceptance of everyone’s right to equality of opportunity; (b) to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes; (c) to eliminate, as far as possible, sexual harassment; (d) to provide redress for people who have been discriminated against or sexually harassed.

7(1) Discrimination means direct or indirect discrimination on the basis of an attribute or a contravention of section 13A, 14A, 15A, 31A, 51 or 52.

It seems clear enough that the Charter’s concept of discrimination is now narrower than the EOA’s. Why – and why the Charter’s definition has to be tied to the EOA at all – remains a mystery. Of course, it might be arguable that roughly similar rights flow from Charter s. 8 (in relation to discrimination on the basis of impairment) and Charter s. 17 (protection of families and children.)

Human rights avalanche!

Too many human rights cases, too little time (and, yes, I’m never happy.) Here are some short points on the rush of human rights cases (or related cases or events) that have come out the past few days. I hope to get back to some of them:

  • Sham marriages: In Baiai & Ors, R (On The Application of) v Secretary of State For The Home Department [2008] UKHL 53, the House of Lords examined the compatibility of a statutory scheme that required people under immigration control who wanted to marry to get permission from Home Secretary with the ECHR right to marry. The Lords accepted that the scheme served an important function of preventing sham marriages (designed to advance a prospective immigrant’s domestic rights) – thus overturning a declaration of incompatibility that had been issued – but rejected the regulations applying the scheme, which rejected all applications from people who were in the UK without leave or on only short stays. While marriage is not (presently) part of Victorian law and the Charter has no right to marry, this decision may have some relevance to decisions by the Registrar of Births, Deaths and Marriages on whether or not to register relationships, in light of the Charter’s right of families to ‘protection’ by the State.
  • Discrimination against Mormons: In Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56, the House of Lords rejected a complaint by the Mormons against a law that provided a rate reduction only for public places of worship, which excluded Mormon temples (which only Mormons can enter.) The majority applied the difficult rule of international human rights law that largely limits equality rights to the enjoyment of other protected rights (which arguably also applies to Charter s. 8) to hold that there’s no right against discrimination when it comes to differential building rates. (They followed an equally dubious decision that rejected a challenge to a law that provided relief from child support obligations to people who re-partner, but only with someone from the opposite sex.) Lord Scott of Forscote felt uneasy about this denial of rights, but held that any discrimination against non-public places of worship was justified because ‘secretive’ religions are divisive. Christ!
  • Rights of tenants: In Doherty & Ors v Birmingham City Council [2008] UKHL 57, the House of Lords gave its third judgment on the difficult question of the obligations of public authorities to tenants. Faced with ECtHR decisions holding that some evictions processes were incompatible with tenants’ right to respect for their home, the Lords refused to further widen the common law remedies against public authorities, holding that to do so would undermine the decision of the UK parliament to allow public authorities broad eviction rights in some instances. The decision (again) gives lie to Bob Carr’s claims about the problems the UKHRA supposedly holds for property owners trying to evict trespassers. It also re-affirms my doubts about the conduct of some Victorian lawyers in using the Charter to protect tenants from evictions by Victorian public authorities. Most importantly to me, this decision is highly notable for its detailed analysis of the UKHRA equivalent to Charter s. 38(2), a provision I think deserves a lot more attention.
  • Admissibility of private diaries: In Lifely v Lifely [2008] EWCA Civ 90, the Court of Appeal dealt with a miserable battle between two brothers over their late dad’s milk business. One brother had earlier convinced a court that some of the milk proceeds were intended to be shared between both sons; however, the other brother had since discovered the first brother’s diaries, which seemed to contradict testimony that had been given about what had been agreed. The Court of Appeal rejected an argument that the right to respect for private life meant that the diaries shouldn’t be admitted; rather, not only should they be admitted as fresh evidence to contradict the earlier finding about the agreement, but the whole case should be revisited in light of the doubts the fresh evidence suggested about the first brother’s credibility. Interestingly, the case sounds a note of caution that the law on the protection of privacy may still have some way to develop and that inadmissibility may be the right remedy in an appropriate fact situation. Could be interesting in terms of the application of s138 of Victoria’s new Evidence Bill in civil cases.
  • Politicised criminal investigations: Two fascinating and incredibly high profile decisions on the discretionary powers of criminal investigators. The Constitutional Court of South Africa, in two decisions, upheld most aspects of an investigation by the country’s independent national investigators (the Scorpions) into the business affairs of the country’s next president, Jacob Zuma. Zuma raised a number of his rights under the SABoR, notably arguing that his right to dignity (the core right of SA rights jurisprudence) was being infringed by the stop-start investigation. The Court’s decision was largely statutory, albeit with repeated reference to human rights, and largely upheld the need for workable investigative powers to scrutinise corruption (especially in light of Zuma’s apparent unwillingness to cooperate in the investigation.) In In Corner House Research & Ors, R (On The Application of) v The Serious Fraud Office [2008] UKHL 60, the House of Lords considered a decision of the Serious Fraud Office to drop an investigation of Saudi businesses after the Saudis threatened to stop cooperating in the war on terror. The Lords unanimously held that the decision was within the very broad ambit of prosecutorial discretion. This wasn’t an HRA case, but would seem to have relevance to the question of whether or not prosecutorial decision-making falls within the Charter s 38(2) defence to the conduct mandate.
  • Parole boards: A brief mention of the Charter’s exemption of parole boards from the definition of public authorities in a Victorian case involving a challenge to the revocation of parole following an adverse drug test.
  • Jack Thomas: It seems, he drew the short straw of Gleeson CJ and Hayne J as his special leave panel in his attempt to re-examine the Victorian Court of Appeal’s unfortunate decision to allow the Cth DPP a second bite of the cherry. Should be an interesting trial…
  • Equal Opportunity Review: The release of a review of equal opportunity processes in Victoria, with an emphasis on consistency with the Charter. Some highlights: changing VEOHRC’s name to Human Rights Victoria and introducing a ‘duty to eliminate discrimination’, a conduct-mandate-like legal rule, but without some of the Charter s. 39 limitations.

I could say more about all of these, especially that tenancy case. Whether I have the time is another matter…

The censor’s call

Art Monthly Australia has had a rough trot lately, but it appears to have won at least one battle:

The father of the young girl who posed naked on the cover of an art magazine has welcomed the Classification Board’s decision to approve the image as appropriate for publication. The board reviewed the entire July edition of Art Monthly magazine, which featured a naked image of six-year-old Olympia Nelson on the cover, taken by her mother Pollixeni Papapetrou in 2003. The board gave it an Unrestricted: M rating, which means it is suitable for publication, though discretion is advised for people under the age of 15.

But there’s a very significant caveat to this victory:

Several members of the board did not agree with the final decision, arguing the magazine, which also featured other artworks involving sexually graphic material, should have been given a Refused Classification rating, which would have prevented it from being sold to anyone, a spokeswoman said. “The minority was split on which images warranted the RC,” Clare Bowdler from the Classification Board said. “Those included the cover image and several images inside the publication.”

The article doesn’t reveal how many members comprised the Classification Board on this occasion (out of the 15 members.) Note that the Board’s decision can be reviewed at the request of any Attorney-General in Australia.

To see why the Board could split on this question (and why the Charter would make no difference), see this post.  To see why the minority view could have left Olympia Nelson’s Victorian parents at risk of a conviction for procuring child pornography, see this post.  To see why Art Monthly Australia shouldn’t count on funding from the Victorian government in the future, see this post.

The Charter vs eviction

Hot on the heels of the major new Charter judgment by the Mental Health Review Board, another briefer Charter judgment has appeared on Austlii, showing that June wasn’t so quiet after all. Director of Housing v TP (Residential Tenancies) [2008] VCAT 1275 was brought down three weeks ago and is the Director of Housing’s second attempt to obtain a ‘possession’ order (i.e. an eviction order) against TP, after the first was overturned by the Supreme Court for reasons that aren’t explained in this judgment. The facts of the case, at least those described in the judgment, are simply outrageous. It’s difficult to believe that the case ever got to VCAT, let alone beyond it. I really hope there’s something we don’t know about going on behind these scenes…

TP has been leasing her premises (managed by Aboriginal Housing) for fifteen years. She currently lives there with her four kids and is on two lengthy waiting lists for alternative housing, both to get extra space and in response to violence from DG, the father of two of her kids and the subject of a couple of two domestic violence orders obtained by TP. In March last year, DG showed up at TP’s premises after he was thrown out by his mother because he had brought pots of cannabis plants into her house. TP initially refused him entry, not least because of the cannabis pots he was carrying, but, ultimately, feeling threatened, she allowed him to stay. She insisted that he keep the pots outside while the kids were about, but he insisted on bringing them in at night. After three days, following an unidentified tip-off, the police arrived and arrested DG for cultivating cannabis. That’s the last she saw of him and his pots of pot, but it wasn’t the end of her trouble. Instead, two months later, she was served with an eviction notice by the DoH. Now, my first thought was that the DoH must have thought that the facts were somewhat different. However, in VCAT, it didn’t contest the facts but nevertheless continued to seek TP’s eviction.

The legal issue is whether the DoH could, in these circumstances, issue an eviction notice pursuant to the Residential Tenancies Act 1997:

250(1) A landlord may give a tenant a notice to vacate rented premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.

This is a tricky question, because s250(1) isn’t triggered by the simple fact that a crime occurred in a rented premises. Instead, the premises must be ‘used’ for that illegal (in this case, criminal) purpose. Illegality in premises can range from a permanent installation of cultivation equipment (clearly a ‘use’ of the premises) through to someone visiting with an E in their pocket (clearly not.) The DoH argued that TP’s premises were ‘used’ to provide shelter and security for DG’s cultivation of pot, but VCAT member Genevieve Nihill disagreed She felt that the mere presence of DG’s pots in TP’s garden and laundry – given the transience of DG’s stay (albeit only because of police interruption) and the primary use of the premises as a residence for TP and her kids – were at the other end of the use ‘continuum’. Indeed, Nihill wryly – if tangentially – observed that DG’s pots were not much more of a use of TP’s premises than the equally criminal violence DG had perpetrated against TP there on other occasions.

While that settled the issue, Nihill – unprompted by the parties – raised the Charter as a fallback argument, in particular Charter s. 13(a) (privacy) and Charter s. 17 (protection of families and kids):

In this case, if section 250 were interpreted in the context of these facts, so that the premises were said to have been used for an illegal purpose, the tenant and her children would have been evicted from their home of fifteen years. They may have faced the prospect of extended homelessness. On the other hand, the only interference to the rights of the landlord appears to have been that for three days last year a person stayed in the rented premises with some cannabis plants. If the fact situation of the case had placed it close to the half way mark along the continuum, an interpretation of the statutory provision in accordance with the Charter may have tipped it to one side.

If Nihill’s right, then more significant connections between illegal acts and the premises wouldn’t be enough to justify eviction. Maybe s. 250 wouldn’t have been satisfied even if the cannabis had stayed for a month, or was TP’s or one of her kids’, or DG did some dealing on the premises. If so, the Charter’s going to make a significant difference to Victorian rental law and practice. So, DoH v TP is an interesting judgment indeed.

But is Nihill right? Continue reading

The right to party!

The prosecution of a nameless teen, where every development in an otherwise mundane case is carefully tracked by the Victorian media, goes on and the teen’s fighting:

A VICTORIAN teen accused of producing child porn and creating a public nuisance will fight the charges in the Children’s Court. The eastern suburbs boy, 17, faced the court today ahead of a two-day contested hearing booked for August. His defence laywer told the court the public nuisance charge was unusual. The police prosecutor agreed he couldn’t find any other court matters where this charge had been laid.

The court heard five police and six civilian witnesses would be called to give evidence at the hearing, including a partygoer who made a statement to police about crowd behaviour. A handy-cam allegedly used to film a couple involved alleged sex acts was handed to police by the teen’s step-father, the defence lawyer told the court. The boy is charged with one count each of creating a public nuisance and producing child pornography. A magistrate extended his bail. He will appear again in court on August 18.

The teen may be able to take advantage of Victoria’s Charter. As I suggested when the teen was first charged, the bringing of major charges in a case like this seems quite weird.

Dodgy parties, if they merit criminal prosecution at all, can be charged with all manner of summary offences, including ‘playing at a game to the annoyance of anyone‘, ‘footpath obstruction‘ and abetting ‘drunken disorderliness in a public place‘, as well as some standard offences relating to being drunk or offensive. All these offences carry fines or tiny terms of imprisonment. So, why have the police instead dug through the list of common law crimes for the rarely (if ever) used offence of ‘public nuisance’, which carries a maximum of five years imprisonment? The decision to prosecute smacks of an attempt to teach the lad a lesson and obstruct his dealings with the media. And that raises the interesting question of the interaction of these provisions:

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

21(2) A person must not be subjected to arbitrary arrest or detention.

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.

Victoria Police, of course, are a public authority. So, there seems to be an argument that bringing the charge of public nuisance scarcely seems to fit with the teen’s best interests and, depending on their motivation, might be arbitrary (at least if the teen was arrested.) While the House of Lords recently cast some doubt on whether charging decisions can limit rights, their reasoning (such as it was) may be of limited relevance to Victoria, where courts are exempted from the Charter. So, the burden of keeping discretionary criminal justice compatible with human rights falls to the police. For this reason, I’m also dubious that the mere availability of the charge under Victorian law provides the police with a defence under Charter s. 38(2).

And what about the charge of producing child pornography? Well, any film of one or more minors (or even apparent minors) involved in ‘sex acts’ fits the definition of child pornography. 

child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context

And, unless the teen is quite an artiste with his handicam, he can’t rely on the Commonwealth Classification Board to save the day with a PG rating. Alas, he’s part of a weird trend (and a disturbing statutory quirk) in Victorian prosecutions: Continue reading

Ordinary rendition under the Charter

The War on Terror has given prominence to the practice of extraordinary rendition, where investigators from ‘nice’ countries like the US and (perhaps) Australia arrange for criminal suspects to be interrogated in less nice countries like Egypt and Saudi Arabia.  But, in federations like Australia where only some jurisdictions have human rights laws (and weak ones at that), there’s an easier way: export the application or even the making of your laws. That’s what Victoria does in relation to its child pornography laws.

This Friday’s long expected news that Bill Henson won’t be charged in relation to his photos of naked children in NSW followed a decision by the Commonwealth’s Classification Board to classify the photos as ‘PG’. That decision was merely the nail in the coffin of the prosecution in NSW, given that NSW’s offence also permits the defence of artistic merit which (politicians aside) was a no-brainer. But the Board’s decision is much more important in Victoria, where mild classification is the only formal defence to the creation or publication of something that fits the definition of child pornography (as least where it involves minors, rather than apparent minors.)

As previously blogged here, the classification of the photos was not a no-brainer. Rather, the risk that Henson’s photos would be classified as RC arose from these features of the classification scheme:

  • s11 of the Classification Act, which requires the Board to consider (amongst other things) ‘the standards of morality, decency and propriety generally accepted by reasonable adults’ (who, it seems, may not necessarily include the nation’s politicians or anti-child-abuse lobbyists)
  • the National Classification Code, which
    • requires decision-makers to take account of (amongst other things) ‘community concerns about… the portrayal of persons in a demeaning manner’;
    • requires an RC classification for publication that ‘describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not)’ or ‘incite[s…  in matters of crime of violence’
  • the Guidelines for the Classification of Publications, which require an RC classification for publications that:
    • ‘promote… paedophile activity’
    • ‘contain…   offensive… depictions involving a person who is…  a child under 18’ (with offensive defined as ‘Material which causes outrage or extreme disgust. The Guidelines distinguish between material which may offend some sections of the adult community, and material which offends against generally accepted standards, and is therefore likely to offend most people.’)
    • contain… offensive… depictions of…. sexualised nudity involving minors’ (including ‘poses… that are sexually suggestive’)

So, there are lots of judgment calls to be made, about the meaning of particular terms used here (e.g. What is ‘outrage’ and ‘extreme disgust’? Where is the line between ‘some sections of the adult community’ and ‘generall accepted standards’? Do ‘incite’ and ‘promote’ including unintentioned encouragement of paedophilia? What poses are ‘sexually suggestive’? ), the nature of Henson’s photos and the policy balance between the various classification criteria.

What’s interesting about this from a Charter perspective is that neither the legal questions of interpretation of these documents nor the decisions about how to implement them are subject to the Charter, even though they are crucial to the definition of a criminal offence in Victoria that clearly engages both the right to freedom of expression and the right of children to protection. Continue reading

Art or crime?

Today’s morning papers cover two controversies about art. The pictures say it all:

Queensland painter Van Thunh Rudd (pictured, centre), who has a history of poitically provocative art and clashes with authority, has had his subtle depiction of Ronald McDonald burning a monk with an Olympic torch  barred from an exhibition being run by Melbourne City Council. The MCC claims that the work doesn’t fit the ‘Ho Chi Minh City’ theme and breaches trademark law, whereas Rudd claims that the figure on the left depicts a famous 1963 self-immolation in that very city, a human rights protest that contrasts with globalism, represented by Mr McDonald and his torch. Instead, he alleges, the refusal is censorship by the MCC’s pro-Chinese mayor. If Rudd is right, then Charter implications are obvious, as the MCC is a public authority (Charter s. 4(1)(e)) and cannot act incompatibly with Rudd’s right to freedom of speech unless a law makes it reasonable for it to do so (Charter s. 38). Is there a law that makes it reasonable for a public authority to reject an otherwise eligible artwork from an exhibit on political grounds?

Meanwhile, up in Sydney, Melbourne photographer Bill Henson, has had his exhibition of photos of landscapes, architecture and naked kids closed down by the NSW police, egged on by talkback radio and child abuse campaigners. The police are concerned that the nude photos – of 12 and 13 year-olds – may be child pornography, which has the following definition in NSW:

“child pornography” means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

Henson and his supporters claim the photos are art (and taken with the consent of children and parents.) However, Van Thunh Rudd’s uncle, Kevin Rudd, has joined a line of politicians falling over themselves to declare that the photos are ‘absolutely revolting’, don’t let ‘kids be kids’ and have no artistic merit. The first two opinions seem to be difectly relevant to the definition of child pornography, wheras the last would foreclose the third of the three relevant defences in NSW to disseminating child pornography:

(a) that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child pornography, or

(b) that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC), or

(c) that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose…

The middle defence may not help much either, as the National Classification Code says that an RC publication includes:

[p]ublications that… describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not);

The Publications Guidelines add that ‘sexualised descriptions and depictions of nudity involving minors under 18 generally warrant ‘RC’ classification’. ‘Sexualised nudity’ is defined to include ‘Includes poses, props, text and backgrounds that are sexually suggestive.’ Yikes. The NSW offence carries a penalty of ten years in prison. But at least Henson has the defence of artistic purpose, there.

Henson’s real problems are in his home state of Victoria. According to today’s paper, he took the photos in his Melbourne studio. Given Victoria’s laws, any defence he raises based on artistic merit may depend on the support of the Charter. Continue reading

The Charter vs landlords

The always excellent bulletin of the Human Rights Law Resources Centre is now out, in its June edition. The Bulletin has many Charter-related pieces, including:

  • an analysis of the Statement of Compatibility of the Public Health and Wellbeing Bill 2008, with a particular focus on the compelled examination and control of people who may have infectious diseases. (I blogged about SARC’s call for submissions in relation to that bill here; unfortunately, the newsletter didn’t mention that…)
  • casenotes on Victoria’s Unberbelly case (blogged about too many times here) and comparative notes on decisions concerning remandees, non-oral hearings, the House of Lords case on inquiries into the Iraq war (blogged about here), evictions, the right to privacy of JK Rowling’s toddler (cool!) and the second ACTHRA case of the year (on adoption.)

But, most interestingly, there was a lengthy discussion of an otherwise unpublicised use of the Charter in a Victorian eviction case. It concerned the following provision:

263(1) A landlord may give a tenant a notice to vacate rented premises without specifying a reason for the giving of the notice.

Acting for a tenant – a pregnant single mother to two young children – who received such a grim notice from a community housing landlord, PILCH made two arguments to the effect that evictions into homelessness are now forbidden in Victoria:

  • applying Charter s32(1) – and, I think, Charter s. 13(a)‘s right not to have your ‘home’ arbitrarily interfered with – they argued that the entire clause should have the following words added: ‘if reasonable to do so in the circumstances and if to do so is compatible with the Charter.’
  • applying Charter s38(1), the argument is that the landlord – a registered rental housing agency under the Housing Act 1983 – is a ‘functional’ public authority (presumably under Charter s4(1)(c)) and, therefore must consider the rights of the tenant and her kids (presumably under Charter ss. 13(a) and 17(2).)

Neither of these arguments is particularly appealing. Continue reading

The right to gay marriage

The Californian Supreme Court, in a 4-3 decision, has ruled that mere equality of legal rights for same-sex partners and married people isn’t sufficient; marriage must be equally available to gay and straight. Although it’ll be reported world-wide as a momentous event, it is just the latest of several courts to reach a similar conclusion, including the Constitutional Court of South Africa, various Canadian provincial courts and the top court of Massacussets. These decisions are automatically relevant to the interpretation of all Victorian legislation, including the Charter itself, under Charter s. 32(2):

32(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

But there are some obvious caveats. First, the section says ‘may’, not must. Second, there are a number of other court decisions – notably in other US states – that followed the minority ‘separate but equal’ approach.

Third, the rights in the Charter are not the same as the rights in these other jurisdictions’ constitutions. Notably, the drafters of the Charter, in including a right to the protection of the family, deliberately left out the right to found a family. They cited the Commonwealth’s responsibility for marriage, but really this was a transparent attempt to dodge the vexed issue of gay adoption. Nevertheless, there is still a right to non-discrimination on the basis of sexuality and marital status in Charters ss. 8(2) and 8(3).

Finally, the overseas jurisdictions differ from Victoria in a crucial respect: Continue reading

Chartered waters

The Australian governance stream of the 2020 summit has ‘expressed strong support for a statutory Bill or Charter of Rights, with minority support for a parliamentary Charter.’ Apart from what is (surely) the last gasp for the ‘Bill… of Rights’ langauge in Australia,  there are no surprises here. The media certainly picked up on the charter proposal – they’d probably written this stuff in advance –  although the Republic discussion completely overshadowed it. Interestingly, both the republic and the charter seem to have been the responsibility of a single branch of the governance stream: ‘Rights and Responsibilities’ (sigh). Disappointingly, there’s no hint so far that anyone sees (or is willing to push for) a link between these two issues.

What is also disappointing, and a little surprising, is the lack of language about how such a charter of rights will come about (a contrast to the discussoin of the republic.) This is meant to be a summit of ideas and there’s no way that a mere proposal to have a statutory charter can qualify as that. Reports that Rudd was worried about the lacklustre nature of the governance discussion and got McKew to pep things up adds to my concern. I assume – or at least hope – that some genuinely new ideas about how to get a charter enacted and maybe how it will operate in the federal sphere were discussed and sifted, and that the final report, whenever it emerges, will be more interesting than this stuff.

That being said, there were two interesting tweaks on the charter idea in the initial report that I’m sure that Rudd will seize on. Continue reading

Do police have rights?

Victorian police will soon be told to register any ‘inappropriate relationships’ they have with criminals, a move designed to stop them from being targeted or seduced by organised crime syndicates. Needless to say, the police’s union is unimpressed:

[T]he Police Association says it fears the register will be an intelligence-gathering tool for the Ethical Standards Department. The union has written to Deputy Commissioner Kieran Walshe to protest, saying that the move would probably be shunned by police. “Among the concerns was the probable lack of member acceptance on what will be a major intrusion,” the letter said. It hinted at possible legal action, saying the association believed the policy violated Victoria’s human rights laws. 

Human rights laws? Good to see that the human rights culture has taken grip where it’s most needed.

So, what human rights are at issue?  Continue reading