The Charter vs taxi passengers

October 31st is the date I pronounced the biggest Charter day EVER, given the thrilling combination of two passing mentions in the Court of Appeal and the revelation on Stateline of the (then) most significant Charter challenge to date. Now, thanks to the slow drip feed of cases onto Austlii, I’ve discovered that that Halloween was even bigger still.

XFJ v Director of Public Transport [2008] VCAT 2303 ponders this question:

[W]ould you want to ride with a man who stabbed his wife to death in 1990, never mind the circumstances? Would you want one of your children to ride in those circumstances?

If not, then you might want to skip catching taxis in Melbourne.

As diligent readers of this blog know, the Charter has already been raised by an insurance fraudster wanting to ride a bus, in the face of the Transport Act 1983‘s licensing scheme. Peter Swain’s insurance fraud was a ‘category two’ offence, meaning that there was a presumption against him ever having a public transport licence. But serious violent offenders face a much tougher burden:

169(2) The Director must not issue or renew a driver accreditation if the Director is aware that the applicant-… (b) has been found guilty of a category 1 offence…

VCAT can allow such persons, including murderers, to drive, although perhaps it’d take a brave VCAT member to do so. XFJ, though, managed to slip out of the regime for managing the licensing of criminals altogether, despite these uncontested facts:

XFJ came to Australia in 1989 as a refugee from the upheavals in Ethiopia. He left Ethiopia, travelling through Sudan to Egypt. He says he suffered many hardships in the course of his flight from Ethiopia, including imprisonment and torture in Egypt. In 1990, XFJ, who is now aged 52 years, was in the grip of a serious depressive episode. He was contemplating suicide. Apparently he carried a piece of rope around with him. In the event however, the violent action which he took first was not directed against himself, but against his estranged wife. He killed her with repeated knife blows. Thereafter, he attempted to commit suicide himself by hanging, but the attempt failed when the limb on the tree which he sought to hang himself from broke.

XFJ’s jury found him not guilty of murder on the ground of insanity. He was detained at the Governor’s pleasure and eventually released into the community in 1998 and from all constraints in 2003. The Transport Act has a provision deeming such persons to be offenders for the purpose of the licensing scheme, leading the Director of Public Transport to initially deny him a licence. However, a closer inspection of the provision revealed that it didn’t cover people like XFJ who were dealt with under the pre-1997 insanity regime. Instead, XFJ’s application for a taxi licence had to be dealt with just like most people’s:

169(1) …[T]he Director may grant the application if the Director is satisfied- (a) that the issuing of accreditation is appropriate having regard to the public care objective; and (b) that the applicant- (i) is technically competent and sufficiently fit and healthy to be able to provide the service; and (ii) is suitable in other respects to provide the service; and (c) that the applicant has complied with the application requirements under this Division.

In June this year, safely on the right side of Charter s. 49(3) ,the then Director, Jim Betts, made his decision: to refuse XFJ’s application, citing the public care objective and XFJ’s suitability ‘in other respects’ and, thus, dashing XFJ’s hopes for a flexible job to assist him in caring for his 19-month old, who alas has leukemia.

Appealing to VCAT as his last hope, XFJ raised the Charter. VCAT Deputy President (and Charter virgin) Michael Macnamara dealt with the Charter argument as follows:

I should note that Mr Stanton, on behalf of XFJ, impressed me with a number of arguments arising under the Charter of Human Rights and Responsibilities Act 2006. It has not been denied that, having regard to the timing relative to the present proceeding, that the Charter applies. Again, without rehearsing the arguments which were put by Mr Stanton, and the counterarguments put by Ms McKenzie, it is sufficient, so far as the Charter is concerned, for me to note that Section 32(1) of the Charter Act provides:

(1) So far as it is possible to do so, consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to human rights may be considered in interpreting a statutory provision.

In my view, the approach which I am about to take, relative to the Transport Act 1983, is in accordance with those provisions, and no issue arises of any inconsistency between the Transport Act and the Charter of Human Rights and Responsibilities Act 2006. Hence, even although issues relative to the Charter have been raised and argued before me, it is, as far as I can see, unnecessary for me to consider giving notice to, or inviting argument from, either the Attorney General or the Human Rights Commission.

Hey, no fair! I want to hear what those impressive Charter arguments (and counterarguments) are.

The right not to be hurt

A tiny Supreme Court judgment from a month back has appeared on Austlii. Daniels v Bayside Health [2008] VSC 472 involves an unrepresented man who is convinced that his son’s health and, possibly, his life is in danger from treatment he is receiving as an involuntary patient under the Mental Health Act 1986 at Thomas Embling Hospital. Bernard Daniels has been told be Dr Yolanda Lucire, a Sydney doctor, that his son Garth has been misdiagnosed as a schizophrenic and instead has had a variety of other conditions for the last ten years. Her opinion is that the treatment Garth is receiving, valium and zuclopenthixol, is likely to cause harm to him, in particular to his muscles. The treating doctors acknowledge that the medicine has its risks, but dispute the doctor’s diagnosis of a complicating condition called neuroleptic malignant syndrome.

Daniels senior lodged a review with the Mental Health Review Board but turned up at the Supreme Court because he wanted the medication stopped prior to that review. The Mental Health Act requires that all patients (and, presumably, as appropriate, their guardians) be told their rights. Recent new regulations specify that involuntary patients be told of their Charter rights in these terms:

The Victorian Charter of Human Rights and Responsibilities Act 2006 seeks to promote and protect certain human rights. The Charter defines the protected rights and requires public mental health services to act compatibly with these rights. The Charter also specifies when and how rights can be limited by law. For example, under the Mental Health Act 1986 you may be detained in a mental health service if it is necessary to protect your health or safety or the safety of others. However, any restrictions on your liberty and any interference with your rights, privacy, dignity and self-respect must be kept to the minimum necessary in the circumstances. If you have any questions about the Charter or how it might affect your treatment, contact one of the organisations described at the end of this statement.

This does a nice, if inevitably inadequate job, of explaining the nuances of the Charter. It doesn’t, for example, address the complex issue of whether the Charter places some fundamental new limits on treatment, notably when the treatment is a threat to someone’s health, as Lucire alleges in this case. The statement directs patients wanting more information to VEOHRC. It’d be interesting to know what they’d say in this circumstance.

Daniels senior raised the Charter in these terms:

In the course of his argument, Mr Daniels has raised a large number of matters, many of which are not really matters which I need or can determine at this stage. He raised questions of procedural fairness, the entitlement of his son not to suffer torture under the Charter of Human Rights and Responsibilities 2006, the entitlement of his son not to suffer death or to be at risk of death under the Charter.

Not a bad effort. Daniels has obviously read Charter ss. 9 and 10. The difficulty for him, alas, was that, testifying by phone before the Supreme COurt, Lucire didn’t support the claims of threats to Garth’s life or that there was an intermediate risk, e.g. to his heart muscles. 

Daniels’s reference to procedural fairness – it’s not clear what fairness issues were at stake – was presumably to Charter s. 24. At the Protecting Human Rights conference, I observed that the Attorney-General, intervening in a Mental Health Review Board matter, was described in the judgment as submitting that the right to a fair hearing doesn’t apply to mental health matters. However, Joanna Davidson, in the audience, publicly and firmly objected to my ‘mischaracterisation’, insisting that the issue only arose in passing and that she only canvassed the law briefly. Her vehemence carried the clear implication, before an audience with considerable interest in this matter, that the Attorney-General would never take such a miserly stance. That very public exchange would be quite a relief to many stakeholders in mental health, including Daniels. 

Justice David Byrne treated the matter with appropriate flexibility, deeming it to be an application for an interim injunction for a variation to Garth’s treatment order (even though no application was actually filed.) However, the application was dismissed:

In the circumstances and given the limited area of my concern in this type of application, I find myself not satisfied that the current medication is so dangerous as to warrant the intervention of the court, assuming that the court has the power to intervene in such a case. Accordingly, the application for interim injunctive relief must fail.

While Bryne’s stance is understandable, I’m not convinced that the test applied is appropriate in light of the Charter. While it’s clear that findings weren’t open about breaches of Garth’s rights to life and against degrading treatment, I think that things are a little different given a further Charter right:

The Charter’s complex war on terror

Re Kent [2008] VSC 431 is the first Supreme Court Charter bail case since Kelly Gray became the first ever Charter beneficiary. Remember when judges were using the Charter to grant bail to people with long waits for their trials, without any care to the niceties of the statute’s application, notice, operative or remedies provisions?

Although neither counsel mentioned the Charter in his or her submissions and no argument based on its provisions was put, either by the applicant or by the Crown, the provisions referred to would appear to be highly relevant to the question of bail… If the Charter in fact guarantees a timely trial, the inability of the Crown to provide that trial as required by the Charter must have an effect on the question of bail. It would be difficult to argue that a trial which may well be not held until after the applicant had spent more time in Custody than he is likely to serve upon a sentence would be a trial held within a reasonable time. The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard (or to ensure that it does not breach those obligations so as to prejudice the applicant), is to release him on bail – at least the only remedy short of a permanent stay of proceedings.

Ah, but the Charter’s a tougher, much more negative statute these days:

The applicant was arrested and charged with the offences on 8 November 2005 and has remained in custody since… The applicant was placed on trial before Mr Justice Bongiorno on 4 February 2008… On 16 September 2008 the jury announced that it was not able to reach a unanimous decision in relation to the case of the applicant… The applicant has been remanded for retrial and that trial would be unlikely to commence before the middle of next year. He will have been in custody for three years on 8 November next.When application was first made to this court, reliance was placed upon the Charter of Human Rights and Responsibilities Act 2006. Notices were duly given. When the matter first came on for hearing on 7 October 2008, counsel for the applicant Mr J.V. O’Sullivan abandoned that argument. It would seem as a matter of statutory interpretation it was doomed to failure in any event.

Now, instead of judges raising the Charter themselves, lawyers do the raising, and then engage in some Foucaudian self-discipline, hurriedly disowning any reliance on human rights before a judge can tell them off for doing so. That of course doesn’t stop the judge from swatting the Charter away like an annoying mosquito, without even bothering to spell out what the problem is. 

Whereas Gray was charged late last year with a bog standard crime (aggravated burglary involving a baseball bat), Shane Kent was charged three years ago with the terrorist offences (achieved by providing a ‘resource’, possessing a ‘document’ and joining an ‘organisation’, all with the requisite links to a terrorist act, albeit not any act in particular.) These circumstances pose two apparent difficulties for terror defendants like Kent when it comes to relying on the Charter:

First, Kent is a federal criminal defendant. The Charter’s interpretation mandate doesn’t apply to federal statutes and its obligations mandate doesn’t apply to federal authorities. That being said, Australia’s constitutional arrangements do raise some interesting questions about the application of the Charter to the laws governing Kent’s prosecution:

• Federal criminal law: The Commonwealth’s Criminal Code, like other federal statutes, is beyond the reach of the Charter’s interpretation mandate, which is limited to statutes ‘passed by the Parliament of Victoria’. But there’s a complication in this case, because the Commonwealth provisions, to the extent that they fall outside of regular federal constitutional powers, depend on a reference contained in a state statute: the Terrorism (Commonwealth Powers) Act 2003. Its referral is limited to a schedule setting out offences, including the ones Kent is charged with, and amendments to those offences. The Charter, of course, applies to the state statute, which raises some fascinating (if marginal) issues about the effect of a new interpretation rule on an existing referral statute. 

• Federal criminal procedure: Kent is subject to a federal provision reversing the usual presumption in favour of bail and instead barring bail unless there are exceptional circumstances. Again, the Charter cannot directly apply to the federal statute. But query whether s68 of the Judiciary Act, a federal provision that ‘picks up’ state laws ‘respecting… a procedure… for holding accused persons to bail’ therefore picks up the Charter’s rights with respect to bail and relevant operative provisions giving those rights legal effect. Given that the interpretation mandate is limited to Victorian laws, I guess that it still can’t apply to the federal bail law. Likewise, the conduct mandate is limited to Victorian public authorities. The only such authority is, of course, the Supreme Court itself, but it is only bound in its administrative capacities. Is bail such a capacity? Anyway, the Cth DPP more or less conceded that the enormous delay faced by Kent – who has only faced one of his three charges to date, and the jury hung on that after a six month trial, and who won’t be retried to next year – was an exceptional circumstance under the Cth law.

• State criminal procedure: As it happens, the Cth DPP’s argument that Kent shouldn’t get bail rested on a state law: a routine provision of the Bail Act 1977 (Vic), which bars bail if there’s an ‘unacceptable risk’ that Kent could skip bail, commit an offence or pervert the course of justice. That provision applies to Kent because of s68 of the Judiciary Act, but surely that section also picks up the Charter, including its interpretation mandate and whatever the Charter’s detainee and defendant rights have to offer? Does the meaning of what is ‘unacceptable’ vary when a person faces four years on remand? 

Are these complex and difficult matters what Justice Paul Coghlan was eluding to when he dismissed the Charter as a ‘matter of statutory interpretation’? Alas, probably not.

Instead, he was presumably referring to the Charter’s very worst provision:

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

This stupid provision, read literally, bars all of the Charter’s protections forever to any criminal defendant charged before 2007. That includes the application of the Charter to questions that arise long after the Charter’s commencement date, like the question of Kent’s bail following his failed 2008 trial on one of his charges. What possible justification is there for allowing Kelly Gray, charged late last year and requesting bail early this year, to rely on his Charter rights against delayed trials, while barring Shane Kent, charged three years ago and requesting bail right now, from relying on the exact same rights? Alas, ours is not to reason why, but instead to apply Charter s. 49(2) as a ‘matter of statutory interpretation’. 

But did Coghlan interpret Charter s. 49(2) correctly? There are three reasons why this ‘matter of statutory interpretation’ isn’t so simple when it comes to Kent.

Conference Q&A

One of the best things about human rights laws is the conferences. While I (and everyone I know) doesn’t much like conferences themselves – the locations are another matter – because the papers tend to be narrow, poorly presented and disconnected from one another, human rights conferences tend to produce interesting, connected and (better) presented papers. Friday’s annual Protecting Human Rights Conference was no exception. As the final speaker for the event, I was a bit too distracted to listen carefully to every speech, so I’m looking forward to the papers appearing online (apparently at the end of this week.) Prof. Johannes Chan’s paper, in particular, looks to be a superb and much needed summary of HK human rights cases.

But what did keep me alert was the Q&A’s, where new and interesting things often emerge. Here’s my summary and takes on some of those:

Charter s. 35: Carolyn Evans, in her summary of this-year-in-the-Charter, called for the repeal of Charter s. 35, the Charter’s provision requiring notice to the A-G and VEOHRC of Charter issues in the higher courts, arguing that it hampered making Charter arguments. Pamela Tate and another questioner queried her on that call, citing her comment that the MHRB decisions to date involved not-especially-helpful legal arguments and the supposed inconsistency there. Tate revealed that Charter s. 35 was requested by the courts, who wanted better legal arguments on the Charter. She also suggested that Charter s.35 notices don’t cause delays, citing the weekend turnaround on Sabet’s request for a stay of the HPRB’s decision to suspend him. Evans, in response, mooted making Charter s. 35 transitional but ultimately opted for immediate abolition, referring to the potential for Charter s. 35 to yield government-backed, rather than neutral, legal analysis.

I say: too bloody right. No-one should put the Charter in a corner. Or, to put it more fully (including some of what I said in my own talk):

• The problems of Charter s. 35 in practice can’t be measured by what happens after notices are issued, but rather by the potential for litigants to choose not to issue notices (and therefore make arguments) at all. Sabet, who initiated a Charter-specific claim in the Supreme Court, is hardly a case in point; rather, the relevant concern is a lawyer who thinks up a Charter claim just before or in a trial and is deterred by the threat of a costs order due to the Supreme Court’s appalling Practice Note No. 3 of 2008. More generally, even a short procedural requirement prevents the Charter from being brought up instinctively, regularly and urgently. Why should it be any harder to raise the Charter than any other statute?
• The supposed necessity of legal advice from the A-G & VEOHRC is an insult, not only to other lawyers, but also to the County and Supreme Courts. Why would the State’s most senior judges have so much difficulty coming to terms with a forty-nine section statute that’s been around for over two years now and is the subject of a couple of excellent texts, including an annotation? And what’s the case for treating the Charter differently to other legislation (remembering that the Charter is the weakest statute in Victoria?) The fact that the judiciary asked for Charter s. 35 strikes me as another worrying sign that Victoria’s courts are no enthusiasts for the Charter, and in particular its ubiquitous use in our courtrooms. It makes me wonder: did they ask for Charter s. 4(1)(j) too?
• It’s also worth noting that Evans’s comments about the need for legal advice related to proceedings in the MHRB, not the SC or the CC which are where Charter s. 35 applies.
• The risk of the supposedly helpful legal advice really being the government line in disguise, alluded to by Evans, is all too real. A number of speakers pointed out the lack of funding for VEOHRC to make submissions. Instead, as I argued in my paper, the interventions have all been from the A-G and are all against rights claims. See below.

Charter s. 32:

Hulls’s Charter report card

Rob Hulls, acting premier, deputy premier, A-G and founding father, came to speak at Melbourne Law School today. Alas, the students were not hanging from the rafters as they do for Kirbs. And more’s the pity because, much to my surprise, Hulls is a gifted speaker and, moreover, had plenty of interesting things to say. That may well not be news to people who know him, but I’ve never heard him speak before outside of head-kickin’ soundbites on the news. And, call me jaded (really!), but I’m used to politicians just blabbing out a bunch of mundane political-feed-good-speak, scribbled out by some bored public servant the day before. Yes, I’m talking about you Rob McClelland. (I’m judging that by the media releases he sends me. Maybe you just have to be there.) For that matter, most of the things I read these days, purportedly written by Hulls, are some pretty turgid and defensive statements of compatibility.

So, it was great to hear him describe his journey from law school to acting premier, via Queensland. And it was frankly inspiring to hear his commitment to improving the justice system. It was the latter that brought me to his speech, hoping to hear some tidbits about Justice Statement 2: Electric Boogaloo. He mentioned some new lists for courts (mental health) and the unification of the court system. I thought at first that that meant shifting VCAT to the old magistrates’ court building (which it probably does), but it also apparently means having a single statute for all of the courts. (Big new statutes are defintely not music to my ears, although that one does sound like a great idea.) And lots and lots of ADR – appropriate dispute resolution. Aw.

Anyway, the Charter got a relatively brief mention as one of his achievements, with him emphasising how its main aim is to restrain the executive. (No mention of the parole boards!) And a student asked Hulls about the chances of economic and social rights being introduced after the 2011 review. Hulls’s answer: nope. Basically, it won’t happen unless there’s bipartisan support for the Charter, and we’re a long way from that. Indeed. (Strange that he didn’t mention the federal charter either, which surely is a factor).

But there was one last comment he made that I want to explore a touch. He noted that there are still ‘doomsayers’ who predict that the courts will become clogged with Charter litigation and that criminals will roam the streets. His response was to note, as a positive thing, that the Charter has not yet been raised successfully by any criminal defendants. Is that true? It depends on your definition:

• There’s Kelly Gray from Echuca, who got bail from Bongiorno J back in January, on the basis of his Charter right to a guarantee of a trial without delay. I’m not sure why he doesn’t count: perhaps because he didn’t raise the Charter (Bongiorno did), perhaps because Bongiorno more or less ignored the whole of Part 3 to give him bail.
• There’re at least two more Charter bailees, Qang Hung Pham and  Zlate Cvetanvoski, reported in the media in the Magistrates’ Court. Surely they count? Or is Hulls only talking about cases where Charter s. 35 notices were issued (i.e. Supreme and County Court cases?) For all I know, there’ve been hundreds of these cases.
• And what about the brothers Mirik? It’s true that the court didn’t apply the Charter in their case, but that’s because, once the Miriks issued their Charter s. 35 notices and everyone intervened, Victoria Legal Aid blinked and gave them a (joint) counsel. It’s clear that, but for the Charter, they would have been on their own when it came to defending against a crimes compensation claim. Do you need a court order to count? Or is Hulls discounting them because, like Bell J, he thought the proceedings were civil?
• Next, there’s TP: she avoided eviction for her ex-partner’s crimes. But this is a pretty slim case, as TP was no criminal herself (even though the Department of Housing was happy to treat her like one, instead of the victim of violence they later conceded her to be) and the proceeding was certainly civil. Still, VCAT member Nhill certainly thought that the Charter will mean that future evictions of criminals will be even harder. Good news for the doomsayers?
• Finally, Hai Minh Nguyen and Andrew Duncan, drug offenders, got some sort of vague ruling in their favour from the County Court using the Charter, in their battle against the proceeds squad’s designs on their houses. The Supreme Court affirmed the ruling, without mentioning the Charter.

OK, so Hulls is fairly close to the mark in his claims that the Charter has not benefitted any criminals (give or take the odd baillee and asset-rich drug offender.) Of course, it’d be good to know what was going on the in the County and Magistrates’ Courts, where most criminal defendants hang out. Maybe that proposed unified court system will manage to have a unified website for publishing judgments too?

But isn’t it also worth asking whether the lack of happy defendants is evidence that the Charter is working. Hulls conceded that a number of defendants have tried and failed. Apart from (possibly) the above, who are fish the Charter rejects?:

Charter s. 35 in practice

I’ve just noticed that, ten days ago, the Supreme Court issued a practice note on the operation of Charter s. 35:

35(1) A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if- (a) in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) in any case, a question is referred to the Supreme Court under section 33.

The note is exclusively concerned with timing issues, which Charter s. 35 is silent on. The note notes:

Neither the Charter nor the Regulations set out specific requirements as to when notice is to be given or when the Attorney-General and the Commission are to indicate whether they intend to intervene in a proceeding. The Court is concerned to ensure that, where required, parties comply with section 35 at the earliest opportunity to avoid delays and the wastage of costs which could occur as a result of late compliance. The Court’s expectations of practitioners in this regard are set out below.

Actually, Charter s. 35 doesn’t set out any consequences of late or non-compliance at all and it seems to me that some consideration should be given to the possibility that there are no consequences. While I imagine there’s a strong argument that the purpose of Charter s. 35 is to facilitate the intervention powers in Charter ss. 34 and 41 given respectively to the A-G and VEOHRC, isn’t there a strong counter-argument that creating barriers to the ad hoc raising of the Charter’s interpretative and conduct mandates as a routine matter in litigation is at odds with the human rights culture the Charter is supposed to foster? (My fears here are heightened by unfortunate examples where Charter s. 35 has resulted in the dropping of otherwise quite plausible Charter arguments.) Drawing an analogy between Charter s. 35 and s. 78B of the Judiciary Act (which requires notice to every A-G in the continent on constitutional matters) isn’t apt: the Constitution’s subject-matter is much narrower than the Charter and its legal effect (including invalidity of legislation) is much broader. (Alas, the Court of Appeal has no qualms about using s. 78B to block Charter arguments, even in urgent matters.) For what it’s worth, the note observe that:

Whether service of a notice in close proximity to a hearing or trial necessitates an adjournment will be a matter for the Judge or Master hearing the proceeding.

On the question of timing, the note lays down the following ‘expectations of practitioners’, with non-compliance to ‘be taken into account, where relevant, in relation to the question of costs’:

First, the note notes that the A-G and VEOHRC say that their ‘expected response time’ is 14 days. There’s no further commentary, so the implication is that the Court either backs that estimate or feels that it has to defer to it. I’m no practitioner, so I can’t judge whether or not a fortnight is a reasonable response time and whether or not litigants can reasonably be expected to pick up and formulate their Charter arguments that distance from a trial.

Second, the note also requires that the court and other parties be given the notice at the same time, even though that requirement isn’t in Charter s. 35. This is to ‘ensure that it and other parties to proceedings are informed in a timely fashion of Charter issues arising in a proceeding’. It’s not clear to me why a special rule is needed beyond the usual ones that allow parties to be informed of each others’ arguments. (My bleary memories of civil procedure touch on the word ‘pleadings’.) And why is the Court so keen to know in advance whether or not there’s a Charter issue looming? Aren’t all the judges on top of the statute by now?

But there’s more:

The quiet Charter

Today marks thirty days since the last reported Charter case (Zierk, on 30th May.) I’m basing this on Austlii reporting, which covers the VSC, VCA and VCAT, but not the Magistrates’ or County Courts. That’s the whole month of June, the sixth month of the Charter’s full operation, without this major statute being so much as mentioned by the state’s top court and administrative law workhorse.

What does this mean? Here’s some possibilities:

First, it could just be a statistical blip (something that’s almost inevitable given the tiny sample size.) Last month, May, there were six cases that got a Charter mention, compared to one in April, so this month might have some evening up. On the other hand, I can’t see next month being big, with the winter recess and all. And surely everyone was expecting the numbers to grow as the year progressed?

Second, it could be a welcome development: a decline in pointless passing mentions of the Charter that do little more than pay symbolic lip service to a statute that has a number of non-symbolic and highly complex provisions.

Third, it could be a worrying development, pointing to a gap in confidence or access to the Charter amongst litigants. There are a number of potential culprits: (a) the stupid transitional provision, Charter s. 49(2) (though its effect should be declining as time passes.) (b) the notice provision, Charter s. 35 (which Bongiorno J reckons imposes a mandatory delay as a penalty for raising the Charter, but which I don’t think requires that at all) (c) s78B of the Judiciary Act 1903 (Cth), which – in combination with some dubious constitutional arguments being put by the Attorney-General and some dubious refusals by the courts to apply its expedition provisions – will impose mandatory delays and costs as a penalty for raising the Charter; (d) the Charter’s numerous drafting problems, which might have scared off litigants who don’t want to hire a QC to nut out all the weirdness; (e) the Charter’s many gaps and loopholes, which might have narrowed its potential operation to too few cases.

Despite mulling this over, I really have no idea what is going on. For all I know, there have been heaps of Charter cases but in the lower courts or settled before any judgment is reached. And there may be a stack in the pipeline.

But, from my Austlii-based perspective, there did seem to me to me a fair number of openings for Charter arguments in the last month. Here are some from just the past week from the Supreme Court:

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.

A question of law arises about ‘a question of law arises’

Kortel v Mirik & Mirik [2008] VSC 103, discussed last post, nearly became Victoria’s Marbury v Madison because of these provisions of the Charter:

35 (1) A party to a proceeding must give notice in the prescribed form to the
Attorney-General and the Commission if-

(a) in the case of a Supreme Court or County Court proceeding, a question
of law arises that relates to the application of this Charter or a
question arises with respect to the interpretation of a statutory
provision in accordance with this Charter; or

40. (1) The Commission may intervene in, and may be joined as a party to, any proceeding before any court or tribunal in which a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter.

It all began in 2005 when twin brothers Mirik and Mirik violently assaulted Refik Kortel. The injuries could scarcely have been more extreme, both physically and psychologically.  In 2007, the Miriks pled guilty to these offences and were sentenced by Bell J to lengthy prison terms (and the Court of Appeal raised one of those sentences on appeal.) This year, Kortel applied for an order for compensation, payable by his attackers. When the hearing came before Bell J, Kortel had counsel while both Miriks were unrepresented.

Justice Bell, like Bongiorno J a few weeks later, was gravely concerned about the ability of the defendants to participate in the hearing in the circumstances. Unlike Bongiorno, he didn’t try to deal with this through the use of a common law stay power. Unlike Bongiorno, he leapt at the chance to apply the Charter and, especially, solve the s6(2)(b) mystery. Unlike Bongiorno, he was willing to delay the proceedings by issuing s35(1) notices. However, like Bongiorno, his actions got a result: the next time Mirik and Mirik were in court, they had lawyers funded by legal aid. Problem solved? Not quite, because VHREOC and the Attorney-General both turned up in court. And VEOHRC was determined to argue the 6(2)(b) point.

I’m alarmed by VEOHRC’s conduct here.

A new problem Charter section?

Justice Bongiorno’s discussion of the Charter in the course of his ruling about remand conditions in Melbourne’s terrorism trial didn’t just involve its transitional provisions. Indeed, the judge nominated an alternative provision as highly problematic:

[A]ny attempt at reliance on the Charter would necessarily require compliance with s 35(1)(a), which concerns the giving of notice to the Attorney-General and the Equal Opportunity and Human Rights Commission of a question of law relating to the application of the Charter. Compliance with this provision would, of necessity, involve delay – perhaps considerable delay – which in the context of an application such as this would be at least inconvenient and perhaps even intolerable.

Section 35 of the Charter contains no severance provision, nor does it contain any urgency exception such as are found in s 78B of the Judiciary Act 1903 (C’th). These are major impediments to the smooth operation of the Charter which need the urgent attention of the Legislature. The section needs to preserve a residual discretion in the judge to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason. This is, for obvious reasons, particularly important in criminal proceedings. Without such a power there is a real danger that the notice provisions of the Charter will be used to delay or even disrupt the orderly conduct of criminal trials.

Wow! Is the Charter unworkable? Well, only if you read Charter s.35 in a quite bizarre way.