The Charter vs VGSO

Well, the year hasn’t ended with a bang, but there’ve been heaps of Charter whimpers, even one in the High Court. But, before I get to all of those, there’s also been some negative press about the Victorian Government Solicitor’s Office, which raises (in my mind at least) some interesting Charter issues.

One story involves an intra-University dispute:

Last week, government solicitor John Cain jnr sent a letter to James Doughney, a member of the university’s governing council, demanding he publicly apologise for “false and defamatory allegations” in an attack on a plan by university leadersto cut jobs. The letter says the university’s chancellor, Supreme Court judge Frank Vincent, and vice-chancellor Elizabeth Harman, reserve their rights to take legal action if Dr Doughney does not withdraw and apologise for his comments.

In October, The Age revealed Dr Doughney had sent a six-page letter to state and federal MPs accusing Professor Harman of using a “pea-and-thimble trick” to create a cash crisis to justify slashing 270 jobs. With Victoria University and the tertiary union in an industrial dispute, Mr McGowan said the defamation threat was an attempt to intimidate Dr Doughney in his role as state president of the union. Dr Doughney, an economist and elected staff representative on the university council, has said it was extraordinary for the chancellor to use a government solicitor in a bid to “gag” an academic.

As they say, disputes within Universities are so bitter precisely because so little is at stake. This story really only got attention because it involves some non-University players: a sitting judge and the head of the VGSO. The NTEU thought that the government should butt out, but the Attorney-General snapped back that Victoria Uni is the government:

Mr Hulls’ spokeswoman, Meaghan Shaw, said Victoria University was a statutory entity. She said the institution had been a client of the Victorian Government Solicitor’s Office for some years.

But sometimes it’s not so fun to be the government, depending on whether you fall within the definition of public authority:

4(1) For the purposes of this Charter a public authority is-

(a) a public official within the meaning of the Public Administration Act 2004; or

(b) an entity established by a statutory provision that has functions of a public nature; or

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise);…

So, who’s a public authority here?:

  • Victoria Uni? This isn’t entirely clear. It’s definitely a ‘statutory entity’, so it’s a public authority if it ‘has functions of a public nature’. Is tertiary education a function of a public nature? I bet that question taxes University heads every day.
  • Frank Vincent? (whose free speech credentials shone through in the Underbelly judgment.) This is clearer, but there’re two murky catches. He’s definitely a ‘public authority’, because he’s a ‘public official‘ under the Public Administration Act 2004, which includes judges, magistrates and the like. (He’s probably also a holder of a statutory office too, through his Chancellorship.) But one question is whether he’s a ‘court’ (or is that strictly his day job?) and then whether his Chancellorship is a non-administrative function under the dreaded Charter s. 4(1)(j). The other is whether his little letter to Dr Doughney, threatening a private law action, is an ‘act of a private nature’? So very murky. 
  • VGSO? This is the clearest. I can’t be bothered tracking down what VGSO is, exactly, but it’s almost certainly a public entity and, hence, a public official, and hence a public authority (gawd.) (If not, then things depend on the status of VU, as VGSO in this case is acting on behalf of them, right?) 

Anyway, the NTEU and Dr Doughney will be thrilled to know that that means that there’s no way that VGSO would do anything that was incompatible with human rights, including Dougney’s freedom of expression:

…[F]ormer Melbourne University vice-chancellor David Pennington said it was “silly” and “nonsense” for Dr Doughney to suggest the conflict was about academic freedom of speech. “It is not an issue of academic study and expertise, he told The Age. Professor Pennington said Dr Doughney was in a conflicted position in his roles as the elected academic representative on the university’s governing council and his position as the union’s state president. “This is a matter of political and industrial positioning.” Dr Doughney had the right to participate in the decision-making process of the university’s council, Professor Pennington said, but his primary responsibility was to the “institution and the corporation”.

Well, that’s a relief. But Doughney shouldn’t have worried anyway. Victoria’s top lawyer, Pamela Tate, is a member of the Australian Academy of Law and (until two months back) was on the advisory committee to Melbourne Law School’s Centre for Comparative Constitutional Studies. No way would she have a bar of any infringements on academic freedom.

The other story is the long-running saga of Mark Morgan, the Castlemaine solicitor whose miseries started after he won a heady victory for the victims of some dodgy police conduct. The police, mostly still on the job, were too poor to pay, but Morgan initially got an order for Victoria to pick up the tab. Alas, that victory triggered demands from Morgan’s ‘no win no fee’ barristers that they get paid, which wasn’t looking like it’d happen anytime soon because Victoria was appealing. The barristers convinced Morgan, who was no longer acting in the case, that he should promise the court that he’d repay the fees to Victoria in the event that it won its appeal. Of course, Victoria did and Morgan is up for a lot of money, as neither the police officers (ever) nor  the barristers (initially) paid up. According to the Court of Appeal, the VGSO officer in charge named Hugh McArdle got pissed off at Morgan (in part because he mistakenly thought a failed contempt action by the barristers had Morgan’s backing) and threw the legal book at him, demanding payment despite further High Court proceedings and the absence of any time-condition on Morgan’s undertaking, and threatening and eventually bringing contempt actions.

Alas, McArdle’s contempt action was a bridge too far. This wasn’t clear at first, because County Court judge Pamela Jenkins found Morgan guilty and made nasty sentencing remarks that caused Morgan a world of trouble with the profession (which, of course, made it even more difficult for him to meet his debt to Victoria.) But, yesterday, in Morgan v State of Victoria [2008] VSCA 267, three appeal judges found that the contempt action was untenable in multiple ways, mostly connected to the failure of either the undertaking or later orders that replaced it to specify a time for Morgan to pay his debt. The Court gave Jenkins a big serve, for being overly happy to wave away service process rules,  for quoting a Bongiorno judgment out of context and for wrongly labelling Morgan’s wrongs extreme. Each of these errors probably piggybacks on errors by VGSO, which is the one who failed to comply with the rules and – just a guess, I dont know – just might have been the one who led Jenkins into error on Bongiorno’s wise words. The most newsworthy point is that the Court firmly disagreed with Jenkins sentencing remarks, instead noting that VGSO came to the party with very dirty hands:

Moreover, Victoria’s position was hardly that of the model litigant which it purports to be and should have been. Throughout, whatever be the explanation for it, Victoria’s position towards the appellant was very aggressive, repayment being sought prematurely and otherwise inappropriately, and contempt proceedings being threatened on several occasions and ultimately being brought when on proper analysis contempt could not be established.

Ooooh. See, it’s sometimes a good thing to be sued by the government!:

2. The obligation requires that the State of Victoria, its Departments and agencies:

(a) act fairly in handling claims and litigation brought by or against the State or an agency,

(c) avoid litigation, wherever possible,

(f) do not rely on technical defences unless the State’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement,

(g) do not take advantage of a claimant who lacks the resources to litigate a legitimate claim,…

But it’s not just the model litigant rules that VGSO is bound by. 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 Charter vs Ministerial rezoning

Last Friday was arguably the biggest Charter day ever. Not only did news emerge of a significant new Charter challenge (actually the second Charter challenge in the news that week), but there were also two Charter cases in a single day, both in the Court of Appeal. I wonder if days like Firday will be routine a few years from now? Not that the cases were too exciting.  Both of them were mere passing mentions of the Charter. Indeed, both were made by dissenting judges. And both cases were within the scope of Charter s. 49(2), the Charter’s overbroad transitional provision.

Nevertheless, the two cases strike me as a positive sign (and not just because I happen to think that the dissenting judges happened to be right.) The passing mentions were not mere footnotes trivialising the Charter, but instead deliberate attempts by two judges to draw attention to possible Charter issues, even if they weren’t live in the case before them. I think this is a terrific development, and a wholly appropriate approach to ‘applying’ the Charter in cases where the Charter unfortunately doesn’t apply. Given the other barriers to raising the Charter, it’s important for lawyers and others to be made aware of potential uses of the Charter in the future. Indeed, such references might be the start of a dialogue that occurs in advance of more formal Charter litigation, like declarations of inconsistent interpretation. As it happens, both involved a common rights issue, the right to notice, albeit in very different contexts.

East Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217 is a planning case, involving Ministerial overrides, a topic that resonates strongly with people like me who lived in Queenland during the Russ Hinze years. In this case, a residents’ group in a well preserved and well heeled Melbourne inner suburb challenged a plan by the local iconic Hilton hotel (across the road from the MCG) to build a new 15 story tower. The plan was fast-tracked by Minister Mary Delahunty, who sidelined the usual planning processes in 2005, citing the then upcoming Commonwealth Games. It was the latter citation that caused her decision to come a cropper in the Court of Appeal, who held that it failed administrative law’s ‘Wednesbury’ unreasonableness standard, because there was no possibility of the tower being built in time for the games. I’ve got to say that I think there’s a lot to be said for the dissent of Chief Justice Marilyn Warren, who held that Minister was thinking of Hilton’s promise to refurbish the existing tower (and its implicit threat to withdraw its brand from the icon) if the planning approval wasn’t speedily approved. I would have thought the odds were good of a sucessful High Court appeal, but I’m no administrative lawyer.

Warren’s Charter point was made in relation to the section of Victoria’s Planning & Environment Act 1987, which allows the Minister to ditch the usual procedure for making amendments to a plan (supply of copies, public availability and specific notice):

20(4)The Minister may exempt himself or herself from any of the requirements of sections 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepares, if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

Warren commented:

Some additional observations may be made regarding the interpretation of s 20(4), although the ultimate determination of this case is not based on them. First, the relevant test for s 20(4) is set out in the section itself. It requires that ‘the Minister considers that compliance with [the notice] requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.’ These terms are disjunctive. The use of the word ‘or’ indicates that the Minister need only consider that either compliance with the notice requirements is not warranted or that the interests of Victoria, or any part of it, make exemption from the notice requirements appropriate. Nevertheless, it is unnecessary to determine the point for present purposes. Indeed, it was not argued at the trial or in the appeal. Moreover, and although it did not arise in this case, consideration may be required in future of the ramifications of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the application of s 20(4) of the Act.

Warren (unfotunately) didn’t identify which Charter rights she had in mind. Continue reading

The Charter vs methane

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

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

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

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

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

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

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

Property rights in the County Court

A new Supreme Court case, DPP v Nguyen & Anor; DPP v Duncan & Anor [2008] VSC 292, doesn’t actually apply the Charter itself but reveals that the Charter was applied earlier this year in the County Court. Once again, let me note the unfortunate fact that Victoria is the ONLY Australian jurisdiction that doesn’t make the judgments of its intermediate court publicly available online. (Qld‘s, SA‘s and WA‘s are on Austlii. NSW‘s is on Lawlink. ACT, NT and Tas don’t have intermediate courts.) It’s true that a random selection of VCC cases are available on the VCC website, but it’s also clear that numerous significant judgments aren’t there, including the one mentioned in this case. It’s an appalling situation. Michael Rozenes, what are you doing?

What’s especially interesting is that this VCC case applied one of the Charter’s weirdest rights:

20 A person must not be deprived of his or her property other than in accordance with law.

This right is weird because it isn’t in the ICCPR. It’s also weird because it seems to simply give a right against unlawful behaviour (which surely goes without saying.) However, as it turns out, the right may well do more than that.

The VCC case is another one concerning Victoria’s horribly drafted confiscation law. Unlike the previous VSC case on that law, this one concerned the more straightforward situation where a person is charged, a restraining order is placed on their property and then they are convicted. Or, at least, it should be straightforward. Here’s the relevant provision:

35(1) If-

(a) a person is convicted of a Schedule 2 offence; and

(b) a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on- (i) the defendant’s conviction of that offence; or (ii) the charging or proposed charging of the defendant with that offence or a related offence that is a Schedule 2 offence; and

(c) the restrained property is not the subject of an exclusion order under section 22-

the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after- (d) the making of the restraining order; or (e) the defendant’s conviction– whichever is later.

The complication is that it can be hard to work out what day a person was convicted. In the case of the two defendants in these cases, the matters were continually listed and relisted for hearing and, in the course of one of the hearings, the defendant announced that he would enter a guilty plea. The listing judge – who wouldn’t have known that was coming – noted the guilty plea and then adjourned the matter for sentencing. And, in each case, the defendant remained on bail until the sentencing matter came up.

At issue in each case was the question of whether the conviction occured when the guilty plea was made or at some later point, such as when the defendants were sentenced. This mattered because each defendant applied for an exclusion order, protecting the property from forfeiture, at a point that was more than 60 days after the guilty plea but less than sixty days after the sentence. The OPP’s confiscation squad (who pursue these matters like each of them will individually get a cut of the proceeds – surely not?) argued that conviction happened at guilty plea, thus avoiding any need for a court to work out if the property really ought to be forfeited or not. Indeed, there was another temporal confusion in one case because of the gap between the lodging of the application (within the 60 day limit on any view) and the hearing of it (outside of the limit on the OPP’s view of things.) Why the delay between lodgment and hearing should work against the applicant is beyond me, but their argument, turning on a since repealed County Court rule (model litigants my arse!), didn’t have to be dealt with.

Anyway, the courts gave short shrift to the OPP’s arguments. The OPP rested a lot of its argument on the fact that each of the listing judges responded to the guilty plea by getting their associates to give the defendants the ‘allocutus’ (a bizarre latin jargon for saying to the defendants “You have pled guilty. Do you have anything more you want to say?”, a practice that is itself a vestige of quaint old times when sentences were brought down moments after convictions.) But the courts noted that a finding that a conviction occured then and there was at odds with the adminsitrative nature of the hearing and the fact that, not only was neither defendant immediately punished, but they were each left on bail. From a policy basis, Smith J was decidely unimpressed with the OPP’s stance that all this bluriness should be resolved in its favour:

The legal approach suggested for the DPP, in my view, involves a significant change to the law. It would give preference to form over substance and introduce uncertainty and arbitrary outcomes. In the present case there was certainty with the remanding of the defendants for sentence after the hearing of the plea. What the DPP was seeking was “certainty” at the earliest time possible. A disadvantage to the DPP that flows from the alleged “uncertainty” is that he will have to argue the applications for extension orders on their merits. I assume that is not a matter of concern.

And it’s here that Charter s. 20 seems to matter. Justice Smith tells us that McInnery J, the County Court judge in both cases, referred to the Charter in determining that the OPP’s argument should be rejected:

His Honour also noted the relevance in interpreting a statutory provision of s.32 of the Charter of Human Rights and Responsibilities Act 2006, referring to the relevant human right being that spelt out in s.20, that a person must not be deprived of his or her property other than in accordance with law.

Frustratingly, without access to the VCC judgment, it’s hard to know what this means and if it was anything other than a passing reference. It might be thought that McInnery J was taking a fairly naive approach that equates Charter ss. 20 & 32 with a right to strict interpretation of statutes that remove property rights. I don’t think the narrow terms of Charter s. 20 necessarily require such an approach.

However, it may well be that McInnery J had a more subtle argument in mind Continue reading

Tainted property, tainted statute

Another non-use of the Charter today! Here’s the thrilling paragraph from DPP v Ali & Anor [2008] VSC 167:

Initially the respondent called in aid s.26 of the Charter of Human Rights Act 2007. After notice was served under s.35 of that Act upon the Attorney-General and the Equal Opportunities Commission, the Attorney-General intervened and filed submissions. After discussions between the parties’ representatives, the Court was advised on the return hearing date on 17 March 2008 that the respondents no longer sought to rely upon arguments based upon the Charter.

So, once again, the Charter’s requirement that the Attorney-General be notified about any questions of law arising under the Charter has had the result that the defendant withdrew the argument. Alas, we aren’t told why. It might be because the respondent’s arguments were daft and the Attorney-General’s submissions made that obvious. In that case, I guess justice has been served. Or it might be because the Attorney-General threw around a bunch of big, scary, expensive and dubious arguments about the Constitution, thus scaring the defendant away. If that’s the case, then this is a very bad thing, as this case could have been assisted by a bit of Charter-style lovin’. The frustrating thing is that the reasons don’t tell us what happened. The Charter is being settled away out of the public eye. That can’t be a good thing.

It’s a real pity that the Charter wasn’t ultimately involved in this case, because the case involved what I regard as the Charter’s raison d’etre: harsh legislation that’s hilariously badly drafted. Continue reading

The rights of gambling lords, child-beaters and rapists

…or, to put it another way, the rights of property owners, parents and people who have paid their debt to society.

What was in that SARC report whose tabling attracted Parliamentary debate? The Committee made significant comments on three bills:

First, the Gambling Regulation Amendment (Licensing) Bill 2008, which sets up some of the recently announced new arrangements for the licensing of gambling in Victoria. One provision of the bill provides ‘for the avoidance of doubt’ that certain past gaming licence holders and their agents and associates have neither an entitlement or a legitimate expectation to a future wagering, betting or keno licence. The Committee asked the Minister for Gaming whether or not any of the affected people are human beings (as opposed to companies), which would engage Charter s. 20.

Second, the Children’s Legislation Amendment BIll 2008, which makes a variety of changes to how young kids are cared for by paid or organised carers. One provision of the bill enhances an existing ban on corporal punishment and ‘discipline which is unreasonable in all the circumstances’. The Committee agreed with a UK House of Lords decision which held that a ban on corporal punishment is compatible with parents’ rights to freedom of religion (including beliefs about discipline.) However, it asked the Minister for Children and Early Childhood Development what ‘discipline which is unreasonable in all the circumstances’ means and how carers are meant to know what it means.

Third, the Justice Legislation Amendment BIll 2008, which (amongst other things) extends the regime for (so-called) extended supervision orders to cover more offenders. The Committee, noting that such orders put enormous powers to curtail rights in the hands of the Adult Parole Board, which in turn is exempt from most regulation including Charter s. 38(1), asked the Minister for Corrections why the Board was exempt and referred the compatibility of the widening of such a body’s powers with the Charter to Parliament for its consideration. As well, the Committee, noting that existing offenders were captured by the extensions, observed that the New Zealand Court of Appeal held in 2006 that a very similar scheme amounted to punishment for the purposes of the rights against double jeopardy and retrospective penalties, and referred that issue of compatibility to Parliament as well. (This issue is a contender for the first attempt to get a court to make a declaration of inconsistent interpretation.) Finally, the Committee criticised the Statement of Compatibility for, amongst other things, failing to bring the New Zealand decision to Parliament’s attention.

What about the Police Integrity BIll, the focus of this week’s trouble? Continue reading