The alienable right to drive

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

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

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

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

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

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

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

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

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

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

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

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

There are a couple of catches though: Continue reading

The French Court

It was worth electing Rudd after all! I’m smiling today about the appointment of Robert French as the next Chief Justice of Australia. Unless he leaves early, we’ll have nine years of the French Court, which will hopefully be enough to get us over ten years of the Gleeson Court. It’ll be the French Court who will decide some key lingering questions about the Charter, not to mention potentially hear some regular appeals from the Victorian Court of Appeal about its operation.

So, why am I pleased? Mainly, because of my lack of enthusiasm for two of the other judges who’ve been mooted for the job: the CJs of NSW and Victoria. For starters, I’d like some geographic diversity. After all,  would someone like Dyson Heydon have ever been appointed if it wasn’t for Howard’s Sydneyphilia? But it’s also about the incumbents themselves. I’ve never been all that impressed by Jim Spigelman, perhaps because I don’t much like his judgment writing style; I’m thinking two hundred paragraphs of quotes from very precedents, followed by: “For the above reasons, I allow/dismiss the appeal.” But it’s especially because of my shock at an incident back in 2001 when Bob Carr, incensed at the sentences being handed out in rape cases, demanded that Spigs come to talk to him about it… and Spigs went!

As for Marilyn Warren, she’s put her name to two lousy Charter judgments so far this year, both involving giving short shrift to freedom of expression (see here and here), and one involving some very dubious process too (see here.) While I hold onto the hope that these were abberations (or just specific to that particular right), for now, I’m quite relieved that Gillard’s rumoured push for her to be chief has not occurred. That being said, I’m a little torn on gender diversity grounds and certainly hope a woman will replace Kirby (albeit also alarmed at the prospect of three Susans on the court.) So, French is basically the devil I don’t know, as is his court (given its lack of criminal law jurisdiction.) But the Gleeson court (full of state judges and commercial federal judges) leaves me enthusiastic for someone from  a different background, given his association with native title law. 

But, more importantly from a Charter perspective, his published speeches have promising indications on his willingness to engage with Victoria’s new statute in a positive way: he’s clearly been following the new human rights statutes and the debate about them closely, especially in his native WA. While he meets James Allan’s test of not coming out in support of such statutes, I don’t think Professor Allan will be very pleased with his approach, for example relying on George Williams’s analysis of the pros and cons. More importantly, his speeches have touched on two of the big political and constitutional issues about Victoria’s Charter: Continue reading

An annoying argument

More bodginess! I’m more than a little baffled by a piece by Williams & McGarrity in Wednesday’s SMH. They argue that Evans v State of NSW [2008] FCFCA 130 shows the need for a federal charter of rights:

The protesters have won this round. Next time they are not likely to be so fortunate. The Federal Court decision illuminates the fragile nature of freedom of speech in Australia. The right deserves better protection than the legal presumption that Parliament does not intend to breach the right unless it sets this out in clear terms. It is long past time that such an important freedom was safeguarded in a national charter of human rights.

Now, there seem to be three things wrong with this argument:

First, we already have ‘better’ protection for free speech in Australia than the common law presumption against infringing rights: the Constitution’s freedom of political communication. True, it wasn’t tested in this case, because the Federal Court felt that they had interpreted away all of Evans’s and Pike’s problems. But, if interpretation wasn’t an option, there’s surely a good chance that the Constitutional remedy would have been available. Aside from the requirement of proving that their communication was ‘political’ – and, really, is there any doubt about that given the desire of Evans and Pike to talk about hotbed issues like same-sex marriage and state funding of religious events? – this Constitutional protection raises issues that are pretty damn similar to those under Charter s. 15(2). The big difference: the Constitution would actually invalidate the regs if they (or their head statute) couldn’t be read down. 

And that’s the second point: Continue reading

The right to Hinch

Maybe a sex offender won’t be the first person to challenge Victoria’s Serious Sex Offender Monitoring Act. Here’s the alternative:

Victoria Police will investigate whether outspoken broadcaster Derryn Hinch should be charged for revealing the names of two protected sex offenders. The Office of Police Prosecutions (OPP) is referring the matter to police after Hinch named the two men during a rally on the steps of the Victorian parliament on Sunday.

If Hinch is charged, he will simultaneously bring himself within the terms of this provision of the SSOMA:

42(1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order…(c) that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified- must not be published except in the manner and to the extent (if any) specified in the order.

(3) A person must not publish or cause to be published any material in contravention of an order under this section. Penalty:…120 penalty units or imprisonment for 1 year…

and these Charter provisions:

33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter…. that question may be referred to the Supreme Court…

36(1) This section applies if-  (a) in a Supreme 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) the Supreme Court has had a question referred to it under section 33…

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

This development raises two questions, one mildly interesting, one more interesting.

The mildly interesting question is whether a court will make the declaration. Hinch could argue both freedom of expression and protection of children, but you’d have to say that he has the odds stacked against him when it comes to a Charter s7(2) analysis, given the threat of vigilantism posed by… the sort of people who listen the Hinch. Perhaps, there’ll be a narrow interpretation of the words ‘public interest’ in the SSOMA. Perhaps.

The more interesting question is whether a court will, as a matter of discretion,l refuse to even consider making a declaration because of Hinch’s apparent agenda of deliberately breaching the law so that he can be prosecuted under it. Continue reading

A not so fine line

Sigh. Now, here’s a bold call:

New sex offender laws run counter to rights charter

Melissa Fyfe June 1, 2008

PARLIAMENT has passed a law dealing with sex offenders that is likely to be inconsistent with the Charter of Human Rights and Responsibilities, according to a legal expert.

Wow. Who would make such a courageous claim?:

Melbourne Law School Associate Professor Jeremy Gans, who advises a parliamentary committee on the new human rights charter, told The Sunday Age that a judge was likely to find the law, passed last week, inconsistent with the charter. It would be the first such law to fall outside the new charter.

Did I say that? Alas, no. The article quotes me accurately further down:

Mr Gans said offenders were likely to challenge such an order under the charter and a judge was likely to agree that it posed a problem. The key concern was the issue of double punishment and that the law is retrospective. Victorians, under the charter, have a right not to be punished twice. The State Government took the view that extra monitoring was not punishment, but a court in New Zealand, where a human rights charter also exists, held that monitoring regimes were indeed punishment, Mr Gans said.

That’s a big difference. Like the difference between saying someone is likely to be charged with a crime and saying they are likely to be convicted.

For the record, I think a challenge is likely because the Charter argument is open to be made (what with the New Zealand decision) and, unlike many laws, this one isn’t just going to sit on the books unused. It’s going to be applied to some people who will have every interest in attacking it every way they can.

But will the challenge succeed? Continue reading

The scope of the interpretation mandate

The Charter’s two most feted (and, to date, little-used) provisions are its interpretation mandate:

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.

and its declaration power:

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

These provisions won’t turn Victoria’s more draconian laws into rights-friendly ones. But it may ensure that, when parliament expresses itself flexibly, unclearly, unintelligibly or thoughtlessly, the courts will have good reason to resolve the mess in a rights-friendly way. And, when the mess can’t be resolved, the courts can raise a (small) stink about it.

But when do these special rules apply? Their scope is only as wide as the term ‘statutory provision’. That’s defined in the Charter as follows:

statutory provision means an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument

And what’s an ‘Act’ or a ‘subordinate instrument’? These words are defined in the Interpretation of Legislation Act 1984, which self-referentially tells us:

38 In all Acts and subordinate instruments, unless the contrary intention appears-

Act means an Act passed by the Parliament of Victoria

subordinate instrument means an instrument made under an Act– (a) that is a statutory rule; or (b) that is not a statutory rule but- (i) contains regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes; or (ii) is of a legislative character…

Seems pretty wide? But it’s not as wide as the ACT, whose interpretation mandate also covers:

  • old acts of other legislatures (the UK, the Commonwealth and NSW) that were grandfathered in when the ACT got self-government
  • instruments that are not legislative in nature that are made under an Act or instrument or a power under given by any law

The former covers things like the Magna Carta while the latter covers things like search warrants. In the ACT, but not in Victoria, these things can now be re-interpreted under the new mandate.

Still, some laws that apply to Victorians will miss out. The two most obvious ones are the common law and Commonwealth statutes. In its Alert Digest No 6 of 2008, SARC picked up a third category. Continue reading

The other right to smell

Earlier, I outlined the current Australian law of sniffer dogs. There’s some protection against being touched by sniffer dogs, but the bottom line is that the common law doesn’t protect anyone from the passive senses: sight, hearing, smell. So, everyone – you, me, police, dogs – has the right to look at, listen to or smell anyone (or anything) that can be seen, heard or smelled. The flipside of this right to be snoopy is that we don’t have a right to privacy. In particular, the rights to look, listen and smell come at the cost of losing our right to be visible, audible and… smelly. 

Of course, in Victoria, we now have some protection for this other right to smell, in Charter s. 13(a):

A person has the right-

(a) not to have his or her privacy… unlawfully or arbitrarily interfered with…

This right goes beyond the common law right against trespass. Subject to the confines of the operational provisions of the Charter, all Victorians have the very right to privacy that the common law has long denied us.  More precisely, we have two more limited rights: against unlawful interferences with privacy and against arbitrary interferences with privacy. Or, to be still more precise, it is now unlawful for public authorities (including Victoria Police) to do either of these intrusions (or get their dogs to them) unless another law makes it reasonable for them to do so. Any such law must itself be a reasonable limit on the right to privacy or it risks being the subject of a judicial declaration. This new right to be smelly of course comes at the expense of the police’s (and their dogs’) old right to smell (i.e. to sniff.)

So, do Canada’s two recent Supreme Court judgments shed light on when the police can set their dogs to sniff us or our belongings? At first glance, Canada seems to be a poor comparative jurisdiction on this question, because its Charter has no privacy right. Rather, s.8 of their Charter has the following right, borrowed from the Americans:

Everyone has the right to be secure against unreasonable search or seizure.

But it turns out this right is exactly the same as our Charter s.13(a)! The Canadian Supreme Court has long held that a ‘search’ occurs whenever the state does something that intrudes on someone’s reasonable expectation of privacy (ah ha!) And, such a search will be ‘unreasonable’ when it isn’t authorised by law (ah ha!) and isn’t founded on non-arbitrary (ah ha!) grounds. Hooray! So, what do the Canadians say about sniffer dogs?

There were two cases decided last week. One involved the cops being invited to a school, where they set their sniffer dog (Chief) on a pile of backpacks left in a school gym; Chief discovered magic mushrooms and cannabis in one kid’s bag. The other involved the cops conducting surveillance at a bus station, looking for suspicious characters and then offering them the choice of either a consensual search or a dog sniff. One guy exhibited funny ‘eye contact’ and reacted to this choice by getting antsy. Chevy the dog was brought in and (tellingly) sat down. The guy’s bag proved to be full of cocaine. Good Chevy! Or was he?

Alas, the SCC was totally poliarised in both cases, each producing a 4-2-2-1 split. Oh god. Continue reading