New Year’s Eve resolutions

lead-nye-fireworks-300x368And now it’s time for a Charter dodge of my own. After one year, 289 posts and 375,000 or so words, this is the end of Charterblog. The site and archive will remain, but there’ll be no more posts from me.  [EDIT: OK, I’ll write an ‘About this blog’ post at some point for folks from the future who want to dig up a time capsule from 2008.]

Why stop now?  I made the decision to stop the blog today back in around July.  Charterblog is, as readers will well know, a very intensive blog . I’ve managed it so far, but I’ve long known that it isn’t sustainable (especially for someone with two regular jobs.) My options were either to make the blog less intense or to make it finite. I didn’t hesitate in choosing the latter. Better an intense, temporary blog, than a perpetual and lame series of links,  one-liners and the odd meaningful post. A year-long blog makes aesthetic sense and matches the year-by-year nature of the Charter’s development too.

As well, 2009 is a big year for me in my academic job: three books (on criminal process, evidence, and substantive criminal law) to write or co-write, as well as a new criminal law course to develop (in the Melboune JD, ditching homicide, theft and rape completely in favour of covering the thousands of more routine offences.) Fortunately for me, all these projects have a significant human rights component, so I won’t be going cold turkey on the Charter. Finally, recently, it’s become clear that it’s probably too early for a perpetual blog charting the development of Charter jurisprudence, as the pace of that development (if, indeed, it is happening at all) is too glacial to sustain a case-by-case analysis.  The result is too many frustrated posts that begin ‘Yet again…’. If I kept this up, I might become jaded!

Thanks are due to a couple of people in particular. First, to my long-suffering partner Denise, who has put up with me hogging the MacBook, staying up late typing and, no doubt, muttering in my sleep about Charter s. 6(2)(b). She would have been well within her rights to issue all sorts of ultimatums, but she didn’t. I don’t deserve her. Second, to both my employers. Blogging carries no cred with DEST and even the folks at Melbourne Uni who defined ‘knowledge transfer’ can’t seem to get their heads around the concept. And my particular blogging style and views bring political risks, not only for SARC but (as it turns out) for Melbourne Law School too. I’m fortunate indeed that neither has raised the slightest objection. That’s quite appropriate, of course, given Charter s. 15, but it’s also courageous, especially when there’s a bully on the block. Finally, thanks to the community of readers for the comments, links, heads-ups and encouragement.

Quitting the blog feels a little like giving up a baby. I can’t recommend blogging highly enough to any academic whose field includes regular contemporary developments. A commitment to regular, public and comprehensive commentary forces an engagement with the subject-matter that exceeds any other academic endeavour, even a PhD. And the informality of blogging is a perfect antidote to the jargon and circuitous nature of formal academic discourse, not to mention the obsequiousness and pomposity of the law.  I imagine that I’ll return to blogging (or whatever its equivalent will be then) in the long-term, maybe even about the Charter (though only if the jurisprudence matures a whole lot.)

But in the short term, it’ll be very weird not posting about all the coming judgments: Bongiorno’s challenge, the FOI challenge, the taxi driver appeal, Hinch’s challenge, the mental health appeal (although the revelation that the plaintiff in that case is named Kracke posed a challenge of its own to my unfortunate tendency to pun that I could not possibly have resisted.) And whatever happenned to the ‘nameless teen’s’ child porn charge? (Seriously, could someone tell me?) There’s also the ACT’s new conduct mandate, which starts in, oh, 75 minutes or so. (I originally planned to make Charterblog subject to the ACTHRA on 1/1/9!) And, there’s the federal consultation too. Still, if a blog is finite, then it has to stop sometime and that time… is… now.

It wasn’t tomorrow!

Why do I make predictions? Here it is:

As we have said, our conclusion about the meaning of the word ‘likely’ in s 11(1) is arrived at by the application of ordinary principles of statutory interpretation, in particular the common law rule favouring that interpretation which least encroaches on individual freedom. That choice of meanings having been resolved, the interpretive task does not attract the operation of s 32(1) of the Charter, which provides: 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.

The Charter has missed out on yet another day in the sun. They dodged it! They dodged it!!!!! We are the ACT….

Well, almost. Justice Nettle, god bless him, actually applied the Charter to reach the same conclusion that the majority reached. We have one third of an authorative judgment. Good one. Though I will presumably change my mind once I read it.

For those who care, RJE is free of his ESO, while ARM remains subject to his. However, as a bonus, ARM got a suppression order and we got a passing mention of the Charter. And Tate’s argument about the meaning of ‘likely’ was firmly trounced.

Obviously, I’ll have more to say eventually…

It’s tomorrow

Thursday December 18th, a very big day for the Charter:

SUPREME COURT LIST FOR THURSDAY 18 DECEMBER 2008
http://www.supremecourt.vic.gov.au

C O U R T O F A P P E A L
===============================

CRIMINAL DIVISION
—————–

The President, Justice Nettle, Justice Redlich
Blue Court, Second Floor, 459 Lonsdale St, Melb.
9:30 – DPP v. Simon Vucko (For Judgment)

Justice Vincent, Justice Weinberg, Justice Robson
Green Court, Ground Floor, 459 Lonsdale St, Melb.
9:30 – R v. Kevin John Dickson (For Judgment)

Justice Buchanan, Justice Vincent, Justice Robson
Green Court, Ground Floor, 459 Lonsdale St, Melb.
9:45 – R v. CP (For Judgment)

The President, Justice Nettle, Justice Weinberg
Green Court, Ground Floor, 459 Lonsdale St, Melb.
10:00 – R v. Vipulkumar Gajjar (For Judgment)
10:00 – Cwlth DPP v. Daniel Hizhnikov (For Judgment)
11:00 – RJE v. Secretary to the Department of Justice (For Judgment)
11:00 – ARM v. Secretary to the Department of Justice (For Judgment)

There’s a stack of judgments due tomorrow, but all Charter eyes will be on RJE & ARM aka the sex fiends’ challenge. Stand by for (a) hopefully a major Charter analysis by the Court of Appeal, surely the most authorative judgment to date; (b) inevitably, some big big headlines in the Hun; (c) some tough choices for Rob Hulls. Unlike the taxi driver affair, he should be well briefed and ready to act on this one. But which statute will he be out defending?

Bell’s Charter

Today’s surprise announcement of Kirby’s replacement on the High Court had two immediate reactions from me: (1) McClelland went for a NSW judge who isn’t Basten?; and (2) why does her name ring a bell?

I am pleased to announce that the Government has decided to recommend to Her Excellency the Governor-General the appointment of Justice Virginia Margaret Bell as a Justice of the High Court of Australia, with effect from 3 February 2009. Justice Bell will be the 48th person, and the fourth woman, appointed to the High Court since Federation. Her Honour’s appointment will follow the retirement of the Honourable Justice Michael Kirby AC CMG after 13 years of outstanding service to Australia’s highest court.

Justice Bell is currently a Judge of Appeal of the NSW Supreme Court. Beginning her legal career at the Redfern Legal Centre in 1978, Justice Bell practised as a lawyer for over 20 years before being appointed a Judge of the NSW Supreme Court in 1999. Her Honour’s time in practice included service as a Public Defender, as Counsel Assisting the Royal Commission into the NSW Police Service, and as a part-time Commissioner of the NSW Law Reform Commission. Most recently Her Honour has also served as President of the Australasian Institute of Judicial Administration.

Ho ho. But I’m not kidding, as she actually has a significant Charter link. Indeed, she’s the first and (putting aside other judgements referring to her judgment) only non-Victoria judge to have mentioned Victoria’s Charter in a judgment to date. (As it happens, the other non-Victorian who came closest was he judge Bell is replacing, but he only did it second-hand, by citing an article by Evans and Evans.)

Her Charter moment is one I’ve covered on this blog before, in the context of critiquing passing mentions. The first and worst such mention was Callaway’s citation of Charter s. 7(2) as a reason to construe Victoria’s Serious Sex Offenders Monitoring Act (where the ‘monitoring’ can include requiring someone to ‘reside’ in the grounds of a prison) narrowly, simply because it reveals Victoria to be a glorious liberal democracy. This pointless Charter reference led NSW courts, at first, to refuse to follow Victoria’s Court of Appeal when it came to construing NSW’s similar (but slightly more draconian) legislation. And the judge who took that step was Bell:

In TSL the Court took into account the provisions of s 7(2) of the Charter of Human Rights and Responsibilities, observing that “The Charter of Human Rights and Responsibilities 2006 (Vic) is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation.” (footnote [15].) In this respect it seems to me that the plaintiff’s submission that s 17(3) of the Act should be construed in accordance with its terms and not by reference to the approach taken to the Victorian Monitoring Act has force.

I have to say that I don’t think much of this argument for not following the Victorian precedent (and nor, it seems, did the Court of Appeal.) But I think there are some quite positive spins to draw from this in terms of Bell and the Charter.

First, it arguably might signal her view that – unlike most Victorian judges – Bell does think the Charter is transformative, to the point that Victoria’s legal system should diverge more and more from the rest of the country (except the ACT.) That’s surely a good thing and, I suspect, one that will contrast with the Howard clones and Gummow.

Second, and more likely, it probably signals her distaste for the quite mild and garbled formulation that Callaway came up with after his pointless Charter mention. Recall that the NSWCA opted for comity with Victoria despite its preference for a standard that was much tougher than Callaway’s, equating the term ‘likely’ with ‘more likely than not’. Bell had adopted that standard in her judgment. And, as it happens, that’s exactly the standard that the Victorian Court of Appeal might adopt, applying the Charter, in the sex offenders’ challenge.

And that makes Bell’s appointment timely indeed, because that challenge is likely to be the first Charter case that makes it to the High Court. (Both parties, or at least both interveners, would be sure to appeal. The only thing that would stop the case reaching the Court is if the Court bizarrely rejects special leave or the Victorian government renders the matter moot by passing new, clearer legislation, though that would invite a further Charter challenge.) So, it’s pretty clear what standard Bell would opt for, Charter or not. Lucky that, as a NSW judge, she wouldn’t have to recuse herself from a case on a Victorian statute.

More broadly, this signals the main joy of Bell: Continue reading

A Frank consultation

Oh, I’m very happy.  Not that I thought of this criterion in advance – in part because it never occured to me that it would be met – but who could be more ideal as head of the federal charter (oops, human rights) consultation but a Victorian who isn’t a Charter groupy  It’s the perfect mix of experience and independence. And his non-groupiness isn’t based on under-the-radar politicking, but simply some outspoken views about how rights should work that doesn’t fit the usual line.

[EDIT: Victorian? Nope. Why don’t I check these things? He’s based at ACU’s North Sydney campus, not its Melbourne one. Still, he’s clearly engaged with events in Victoria. Thanks to Andrew Bartlett for pulling me up.] [DOUBLE-EDIT: But, now I look at it, his phone numbers are Victorian! Or is that just the phone number of the ACU’s Institute of Legal Studies Fitzroy campus? His various degrees are spread along all the Eastern states.]

Most obviously (to me anyway) is his contribution to the major political debate on the Charter to date: the abortion bill, its non-conscience clause and Charter s. 48:

The Williams committee stressed that such a provision was ‘not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement.’

They made what must now be seen by their political masters to be a remarkably misconceived observation: ‘In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law.’

Unless the Victorian upper house acts to amend those provisions of the bill which presently negate the freedom of thought, conscience, religion and belief of health professionals, the matter will need to be resolved by the courts.

Meanwhile the Catholic hospitals and conscientious health professionals opposed to abortion on demand are well justified in taking their stand against an unjust law which carries the hallmarks of totalitarianism. Any self-respecting civil libertarian should support them, regardless of their views on the morality of abortion on demand.

Some of the details are inaccurate, but the basic point is a suspicion of the human rights movement as engaged in preferential treatment of some pet issues and the adoption of political exemptions that is both miserly and misguided. I can’t see him backing the kind of cherry-picked and manipulatable Charter that the good folks on the  Victorian commmittee produced.

But he also has a fine ear to the costs of a rights-free system:

Without an overriding bill of rights, the judge does not have guidance from the legislature or the people about the priority of individual liberty and the common good to be applied to particular statutes or to discrete situations calling for a development of the common law. Without recourse to a bill of rights, the judge who has taken the oath to administer justice according to law must define the jurisdiction of the court and interpret the law without the benefit of a prior comprehensive, legislative endorsement of a hierarchy of rights and interests. The judge must find his way through an increasingly complex thicket of legislation which is not subject to any overriding codified set of rights and she must develop the common law where statute is silent with less assistance from judges from other jurisdictions whose decisions are increasingly guided by their own bills of rights.

That is, of course, the right answer to James Allan’s argument that rights turn judges into dictators. They are already dictators in the present system; a rights bill would at least give judges more scope for looking for some underlying values than common law history and the mysteries of local statutory interpretation.

How Brennan will walk the line between these two concerns remains to be seen, but I’ve no doubt that these are the key issues at stake in the rights consultation. As for the remainder of the Committee, I don’t know much about Tammy Williams, Mary Kostakidis or Mick Palmer, but the latter’s presence may offset a major problem with the Victorian one: an apparent lack of experience, attention or knowledge about what is likely to be the major area of effect of any rights law: criminal justice.

But what about the other components of today’s announcement: the terms of reference, the background paper, the Committee’s role, the support staff and timelines?: Continue reading

The Federal Charter consultation

… will be announced sometime around 7pm tonight:

ATTORNEY-GENERAL TO DELIVER INAUGURAL EVATT ANNUAL LECTURE

Attorney-General Robert McClelland will today deliver the inaugural Evatt Annual Lecture to commemorate the 60th Anniversary of the Universal Declaration of Human Rights. Highly-respected Labor Statesman Dr H V (Doc) Evatt was President of the United Nations General Assembly when the Declaration was first adopted by 47 countries, including Australia.

DATE: Tuesday, 9 December 2008.

TIME: 6:30 pm

LOCATION: Eastern Avenue Auditorium, Eastern Avenue, Camperdown Campus, University of Sydney.

Not that I have the slighest insider knowledge… [EDIT: And, if any proof was needed of that, here it is:

26. And so, tomorrow, on the 60th anniversary of the Universal Declaration of Human Rights, I will launch a national consultation on the protection and promotion of human rights and responsibilities in this country.

27. Our consultation will do far more than honour an election commitment.  It will provide all Australians a chance to have their say. To have their say about the kind of rights and responsibilities that ought to be protected and how we can better protect and promote those rights and responsibilities now and into the future.

28. The consultation will take the form of a broad based nationwide consultation conducted by a committee of four eminent Australians. I will announce their names tomorrow.

29. The consultation isn’t just about whether we should or shouldn’t have charter of rights. In fact, judging by some of the contributions to the debate so far, I expect there will be robust discussion on a broad range of possibilities. Some will be in favour of change. Some will be in favour of the status quo. Some will suggest other enhancements.

30. Whatever views are out there, I think it’s paramount that the consultation hears from as many Australians as possible, with attitudes and views right across the country and right across the spectrum.

OK, there was an announcement of the announcement at 7pm tonight. The main reveal is that the Federal Human Rights Consultation Committee will consist of ‘four eminent Australians’. Well, that certainly follows the script.

But who will the four be?: Ca-thy, Ca-thy, Ca-thy….]

The Charter in passing

After midday on 22nd February 2006, four or so months before the Charter was enacted, Peter Kokkios took a walk through Richmond’s public housing estate, not far from where I live. He was approached by a short skinny man and a tall fat one – that rules me out! – who asked him for a cigarette. When Kokkios said no, the next request was for his $1800(!) Tag Heuer watch, a request backed up by a syringe produced by the skinny guy. After taking a further $50 from Kokkios’s pocket, they ran off, with the taller one shouting ‘Come on Ant!’. Who was this ‘Ant’?

Mr Kokkios recalled that the skinny man had bloodshot and baggy eyes along with bad skin and bad breath. Mr Kokkis recalled that he was about 5 feet 10 inches tall and his hair, which was slicked or combed back, was black. He recalled that the skinny man looked European – Italian or Greek – was clean shaven, had brown eyes, a very long and skinny face and was approximately 20 to 25 years old. He recalled that he was wearing a red top and black ‘parachute’ tracksuit pants and a red T-shirt.

The next day, Kokkios identified Antonio Falcone from a photoboard. Falcone’s alibi wasn’t the best. He said that he went with his mum to the Commonwealth bank on nearby Bridge Road to get some money out, but left empty-handed when it turned out his account was in the red. A computer record showed that his discussion with the bank happened at 11.40AM. The disappointed pair went home. A couple of hours later, Falcone pawned some of Mrs Falcone’s jewelry. He denied having entered the housing estate that or wearing red or black clothing.

At Falcone’s trial for armed robbery, late last year, the deliberating jury had the following question for the trial judge:

If we find that we can place him at the scene, but believe he is not the man with the syringe, can we still find him guilty?

The jury’s question probably arose because of the account of Raglus, another possible eyewitness, who said he saw two men eyeing off a flash car near the housing estate close to midday. The witness also identified Falcone from a photoboard, but said that it was the other taller guy who was wearing red and black. After consulting both counsel, the trial judge responded:

If you find that the accused man wasn’t the one with the syringe, then you must have a reasonable doubt about the identification made by Mr Kokkios as identifying this accused man because he gives no description of Man No. 2 other than broader and bigger than Man No. 1. So if you were to reach this position then you must look at what’s left before you in the case and that’s the evidence of Scott Raglus and what you make of that, the evidence of Mr Trojan the man at the bank and what you make of that, the evidence of Mr Falcone and Detective Senior Constable Roberts and finally what the accused man had to say during his interview with the police. So that’s how I’m going to answer your question and I’ll otherwise ask you to return to the jury room and if there’s anything else that I can assist you with, please let me know

I’m not convinced that this is actually what the jury wanted to know. This account is directed to whether or not the evidence could support a finding that Falcone was the other man. But I suspect that what the jury really wanted to know was whether you could still be guilty of armed robbery even if you weren’t the one carrying the syringe. Because of the doctrine of ‘acting in concert’, the answer is, almost certainly, yes, as the trial judge had earlier directed them. Three days later, the jury convicted Falcone of armed robbery. In R v Falcone [2008] VSC 225, the Court of Appeal overturned Falcone’s conviction and ordered a new trial. The reason was that the Crown’s sole theory presented in the trial was that Falcone was the guy with the syringe. Australia’s common law doesn’t allow a new factual theory to be introduced without the defendant having a chance to respond. So, the trial judge should, instead, have answered ‘no’. 

This mundane, if somewhat depressing, procedural error yielded the following Charter remark from Vickery J, writing the judgment for the court:

The right to a fair trial is an essential safeguard of the liberty of the individual under the law. It finds expression in Article 14 of the International Covenant on Civil and Political Rights 1966 and is reinforced by s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

This is a ‘passing mention’. I complained about this practice back in February, during the (in hindsight) happy era when the Supreme Court’s jurisprudence was characterised by feel-good vagueness, rather than the misreadings and lousy analysis that soon rose to the fore. It is to be distinguished from both the outright sloppiness of approaches like Bongiorno’s and Lasry’s (amongst other reasons, because the Charter wasn’t applicable in Falcone’s case due to Charter s. 49(2)) and also the helpful approach of Neave and Warren (who mentioned the Charter to indicate what difference it may make in the future.) Rather, Vickery’s approach is similar to the dull jurisprudence of the ACT Supreme Court on its HRA, where the Charter is seen as, in some vague and unimportant way, restating the existing law. It’s worth recalling why this is a lousy practice. Continue reading