The Federal Charter consultation

… will be announced sometime around 7pm tonight:


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….]

Charter s. 39 vs tenants

The interaction between residential tenancy law and human rights law is a major issue, both here and in the UK. VCAT has already used the Charter to suggest a narrower reading of a provision of the Residential Tenancies Act that would allow eviction. But, in the UK, recent cases have suggested that the interpretation mandate and the conduct mandate have limitations (to preserve parliamentary sovereignty) that might make the Charter less effective as a relief against eviction for tenants than some people think. In particular, the interpretation mandate can’t be used to read broad limitations into a statutory eviction right and landlords who happen to be public authorities are probably fairly free to ‘give effect’ to their statutory eviction rights by acting more or less like private landlords. See here and here. A three-week old case  that just turned up on Austlii, confirms some of these limits and introduces a new one that’s unique to Victoria’s Charter, involving the first ever application of Charter s. 39 to refuse a remedy. Unfortunately, VCAT’s reasoning is more debatable. 

Director of Housing v IF [2008] VCAT 2413  involves, not eviction, but rather the Residential Tenancies Act‘s ‘compliance’ scheme, which consists of four stages: a ‘breach of duty‘ notice, a ‘compliance order‘ if the notice is breached,  a ‘notice to vacate‘ if the compliance order is breached, and, ultimately a ‘possession order‘ (i.e. eviction), if the notice isn’t complied with. Whew! In this case, the Director of Housing was attempting to get to the second stage with its tenant, IF. The problem was IF’s alleged conduct towards his neighbours:

The incidents described at the hearing by LS included once when IF threw a log of wood over the fence and hit LS’ wife on the head. LS said that he bought his son a small swimming pool but had to put it away and not allow him to use it. He described an occasion when IF exposed himself to the child. LS called the police, but when they came IF was in his underwear and so drunk that the police said they couldn’t do anything. LS said that every time his wife leaves for her work IF stalks her, walking behind her and calling her “bitch.” Once IF said to LS’ son “your dad is f…ing dead meat – we are going to get him killed.” There have been many threats of death. LS said that IF calls LS a “f…ing Columbian” and yells out that he is going to have LS killed. After the first hearing of this case, on 7 August 2008, LS had to call the police because IF was yelling out that he was going to have LS killed. LS said that IF yells abuse and threats over the fence, and so they have to stay inside and keep the back door locked.. Sometimes IF’s friend SW sits out the front with IF and also yells out abuse at L. LS said that last night – the night before this hearing – a neighbour died and IF, who had been drinking, was yelling out that “the f…ing Columbian killed her.

Broadly, the problem was IF’s alcoholism. LS’s difficulties had been going on for seven years, and (unsurprisingly) LS’s family was on a waiting list for alternative accommodation. A neighbour backed up LS’s account, but IF and IF’s friend blamed LS for the dispute. IF didn’t help his arguments much by threatening LS during the VCAT hearing.

On 24th June this year, the Director of Housing issued IF with a ‘breach of duty’ notice, specifying four incidents of abusive behaviour in the previous month in breach of a statutory duty to not ‘use the rented premises… in any manner that causes a nuisance.’ (The more-apt second part of that duty, which refers to the ‘reasonable peace, comfort and privacy’ of neighbouring premises, wasn’t cited.) The provision governing breach of duty notices states:

208(1) A person to whom a duty is owed under a duty provision or that person’s agent, may give a breach of duty notice to a person in breach of that duty.

(2) A notice under subsection (1) must- (a) specify the breach; and (b) give details of the loss or damage caused by the breach; and (c) require the person, within the required time after receiving the notice- (i) to remedy the breach if possible; or (ii) to compensate the person to whom the duty is owed; and (d) state that the person in breach must not commit a similar breach again; and (e) state that if the notice is not complied with- (i) an application for compensation or a compliance order may be made to the Tribunal…

If someone leaves something smelly in a common area, it makes sense to tell that person to ‘remedy’ that in the ‘required time’ (14 days in most cases) and to not to it again. But it’s not so clear how notices work when the breach of duty consists of a course of conduct that evinces itself occasionally, as happened with IF. What does it mean to ‘remedy’ such a breach within 14 days? And what actions amount to ‘commit[ing] a similar breach again’? These issues were squarely raised by IF, because his neighbours had a quiet month after the notice was given, but another incident (the first of several, apparently) occurred again on 24th July. Did that mean that IF hadn’t ‘complied‘ with the notice, thus allowing VCAT to issue a compliance order?

VCAT Member Geneveive Nihill considered whether Charter s. 32 required her to consider whether or not an interpretation of s. 208 as obliging IF to refrain from abusive behaviour beyond the 14 day remedy period was a limit on IF’s rights. Apparently adopting Tate’s three-step approach to the interpretation mandate, she held that s. 208(1)(d) ‘engages’ IF’s right to privacy but also engages the right to privacy of IF’s neighbours (by promoting them.) Nihill skipped onto Charter s. 7(2) and asked Tate’s third ‘justification’ question. Unsurprisingly, justification was straightforward, given that the compliance scheme merely piggy-backs onto existing legal duties of tenants, which in turn piggy-back onto rights of their own. As enforcement schemes go, the RT Act’s compliance scheme is amazingly attenuated, with multiple opportunities for VCAT review, so it easily satisfied Charter s. 7(2)(e)’s ‘minimal intrusion’ test and the broader ‘proportionality’ test.

This is all well and good, but Nihill’s analysis suffered by not expressly considering the middle step of whether or not s. 208(1)(d) limited Charter s. 13(a). That would have involved considering whether or not s. 208(1)(d) was ‘arbitrary’ or ‘unlawful’. Equally, she also skipped s. 7(2)’s ‘subject under law’ requirement. Both of these tests focus on whether or not s. 208(1)(d) imposes a clear obligation on IF. Arguably, given it’s inaptness to breaches that consist of repeated incidents, it doesn’t. Does s. 208(1)(d) apply forever? Will a single moment of abuse breach it? IF, arguably, had no clear guidance on what would be a breach. Nihill was certainly aware of this problem:

I agree that there may be a different interpretation of the operation of section 208 in the light of different facts, and in particular if a person caused a nuisance in a way that was not manifestly similar to the nuisance described in the notice, or if the repeat of the nuisance took place a very long time after the notice of breach was served. In this case, I find that the breach committed on 24 July 2008 was the same as, or strikingly similar to, the previous breaches. I find that the period of time that has passed is not so long as to make it unfair or unlikely that the tenant would be aware that he was breaching the notice.

That’s all very reasonable, of course, but it treats the task of interpretation as one that can vary depending on the facts before the tribunal. As the UK tenancy cases argued, interpretation doesn’t involve declaring a statute applicable or not to a particular factual scenario, but rather developing a broad principle and seeing if the words can be interpreted to fit it. It may well be that the only way to make s. 208(1)(d) Charter-compliant (in the sense of not capturing the scenarios identified by Nihill and, in particular, providing intelligible guidance to people like IF about what they can and cannot do) is to read it in so narrow a manner that it doesn’t capture IF’s conduct in this case. As it happens, I don’t think such a narrow reading of s. 208(1)(d) was necessary in this case. Moreover, if it was, I think there’s a good argument that it would conflict with the purpose of the provision and, arguably, the Charter rights of IF’s neighbours.

The interpretation mandate is too broad a remedy to fix a provision like s. 208(1)(d) which straddles too many scenarios, sometimes limiting a tenant’s rights, other times providing crucial support for the rights of landlords and neighbours. Instead, a more appropriate remedy is the conduct mandate. The conduct mandate, in public housing cases at least, allows s. 208(1)(d) to be given a broad reading, but potentially ameliorates some of its negative effects by barring public landlords from applying it in individual cases where it would work unreasonably. The good news is that just such an argument was made by IF:

The tenant has made extensive and interesting submissions about the landlord’s obligations under the Charter. Essentially the tenant has submitted that the landlord is a “public authority” under section 4 of the Charter, and is therefore required by section 38 to act compatibly with the Charter. It must do so, submitted the tenant, when exercising its powers under the Housing Act 1983 with respect to the acquisition, disposal, development and management of land. In managing this tenancy, including making the decisions to serve a notice of breach and to apply for a compliance order, the landlord exercised these powers. According to the tenant, it did not do so in a way that was compatible with the Charter. I agree that the Director of Housing is a public authority as defined in section 4 of the Charter. This is clearly the case; the Director of Housing is a public official, and the Office of Housing (a unit of the Department of Human Services) is an entity established by a statutory provision that has functions of a public nature

The finding that the Director and the Office are public authorities is, of course, correct. 

Alas, Nihill held that, even if this argument was correct, she couldn’t do anything about it!:

After careful reflection, I do not consider that I have the jurisdiction to go behind the application made by the landlord, and review whether or not the landlord acted in a Charter compatible way in reaching the decision to make the application. In relation to this proceeding, in this jurisdiction, I can only make decisions about the provisions of the Residential Tenancies Act 1997 and the Victorian Civil and Administrative Tribunal Act 1998. The Residential Tenancies Act 1997 is very detailed. It provides jurisdiction for a wide range of decisions about residential tenancies, boarding house residencies, and caravan park residencies. It makes no distinction between private and public tenancies. It does not provide for the review of decisions made under the Housing Act 1983 by the Director of Housing.  Any challenge to the decisions of the Director of Housing made under the Housing Act would need, I think, to be brought in a different jurisdiction. The conduct of government bodies in the exercise of their decision making power is reviewable under the Administrative Law Act 1978.

If this is true, then it’s quite a problem, as it’ll mean that any public housing case will have to proceed in two courts: VCAT and the Supreme Court (and the latter is scarcely geared towards the quick informal hearings that are generally considered necessary to resolve residential tenancies disputes.) Nihill made it clear by a reference to the dreaded Sabet that her finding is a purported application of the dreaded Charter s. 39(1):

39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

So, this appears to be the first time the Charter’s remedies section has been used to deny someone a remedy.  Charter s. 39(1), you might recall, is meant to reduce the amount of litigation under the Charter; it’d be doubtful that this purpose would be achieved by forcing most public housing disputes into the Supreme Court. So, fortunately, it’s probably a doubtful ruling. Continue reading

The consequences of Charter s. 30

Since 1st January 2007, every bill introduced into the Victorian Parliament except one (the Abortion Law Reform Bill) has been accompanied by a Statement of Compatibility. And every bill has been the subject of a report from SARC. Every bill, that is, except two bills introduced into Parliament last week, which have already passed and will, presumably, very soon be Acts.

One bill is the Salaries Legislation Amendment (Salary Sacrifice) Bill 2008, which got its first, second and third readings in both chambers on Tuesday. The bill’s purpose is to allow parliamentarians and various constitutional officers to salary sacrifice. That is basically a tax dodge, whereby part of your pre-tax income is used to buy something or contribute to super. I’ve never understood why the tax office allows this. Anyway, the legal complication is that it involves, at least technically, a salary reduction, hence the need for clarifying legislation. It’s good to see that Parliament was so concerned about the ability of judges to salary sacrifice that they rushed through the legislation. But. ‘reducing’ judicial salaries is always tricky thing. (Indeed, on a complete side point, salaries full stop are a tricky thing. Hillary Clinton’s appointment as Secretary of State has raised US constitutional concerns because of the ’emoluments’ clause, which bars sitting congresspersons from being appointed to public offices that have had a pay rise during their term. The job of Secretary of State had a cost-0f-living pay increase earlier this year. The proposed solution – pioneered by Nixon! – of reducing the salary before Clinton takes office hasn’t satisfied all the constitutional law experts.)

The other bill is one I recently posted about, fixing the ‘loophole’ in the taxi driver registration scheme for people like XFJ who were acquitted on insanity grounds prior to 1997. It passed yesterday, but not before the Greens bemoaned the lack of a report from SARC:

The second issue is that this bill, which raises important questions of the Charter of Human Rights and Responsibilities — questions that require considered thought, pondering, research and consultation with experts — has not been to the Scrutiny of Acts and Regulations Committee.

The reason for the rush, as the government candidly admitted, was the coverage of XFJ in the Herald Sun. In the end, the Greens were satisfied with a reference to the Council’s Legislation Committee, which immediately considered the bill and approved it. 

The result of these events is, arguably, a breach of a provision of the Charter:

30 The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

The use of the present tense arguably implies that the report must occur while a bill is a bill. That also makes sense as a matter of policy, as the whole point of SARC scrutiny is to advise parliament in its deliberations on whether or not to enact a bill. All too late now.

So, what are the consequences of a breach of Charter s. 30? This issue is the subject of another curious drafting quirk in the Charter. Every other parliamentary event required by the Charter is the subject of an express savings clause providing that a failure to comply with it has no impact on the validity of a law:

29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

31(9) A failure to comply with subsection (3) or (5) in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

So, statements of compatibility, the procedures for override declarations and the procedures following declarations of inconsistent interpretation can all be breached without any possible consequences for validity. Does the absence of such a provision for SARC reports imply that their absence might have consequences for validity or at last found a ‘legal right’ or a ‘civil cause of action’? Oooh. It’s hard to see why SARC’s reports should somehow be more important than these other processes, of course. But maybe it’s another fun Charter argument that XFJ could raise when the question of his accreditation comes up for further litigation. See my earlier post on Charter claims involving Parliametary breaches of the Charter.

That being said, there is a mechanism that would seem to permit SARC to report on both of these statutes eventually. Continue reading

The end of DNA database expansion

Back in March, I referred to a DNA database case before the European Court of Human Rights as the human rights case of the decade, pitting the clearest principles against the clearest practicalities. The House of Lords had unanimously ruled in favour of the practicalities, with one of the Law Lords, Simon Brown, issuing a concurrence just to say:

My concern is simply to indicate how very clear a case this seems to me to be. Indeed my only real problem now, following full investigation of the case with the assistance not only of the parties but from Liberty too, is in discerning any coherent basis on which the challenge can still be sustained.

Yesterday,  the seventeen judges of the European Court’s Grand Chamber unanimously upheld that very challenge, ruling firmly in favour of principle. It’s a stunning development that will put both DNA databases and human rights law at a crossroads.

The applicants in S & Marper v UK [2008] ECHR 1581 were both residents of Sheffield. In early 2001, at the age of 11, LS was arrested on a charge of armed robbery. Two months later, Michael Marper was arrested on a charge of harassing his partner. On June 14th, both were cleared, S by acquittal, Marper by a notice of discontinuance after he reconciled with his partner. Both then asked for their fingerprints and DNA, taken on arrest, to be destroyed, but the police refused, saying they wanted to retain the information for use in future criminal investigations. The police’s plan was made possible by a 2001 change in UK law, following an unsuccessful attempt by two people linked to crimes after their DNA should have been destroyed to challenge their convictions. The new amendment to the Police and Criminal Evidence Act (PACE) allowed the permanent retention of fingerprint and DNA samples in most circumstances:

64(1A) Where – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution.

Subsection (3) required the destruction of DNA taken from people never suspected of an offence (e.g. bystanders, such as residents of a burgled house who DNA is taken to eliminate irrelevant crime scene samples.) So, PACE s64(1A)  allowed the retention of all suspect samples, even when the suspects were cleared. S & Marper’s challenge to the police’s decision under the Human Rights Act was dismissed, in turn,  by a trial judge, the Court of Appeal (in a 2-1 decision with Lord Sedley dissenting) and the House of Lords, before today’s stunning reversal by the ECtHR.

The European Court’s decision was based on the ECHR’s right to privacy:

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The government argued that the only way that DNA can interfere with privacy is at the time of sampling (it wasn’t disputed that S & Marper were lawfully and, it seems, properly sampled) and at the time of matching to an unsolved crime (when the relevant privacy right is the unfortunate right to get away with such crimes undetected.) But the ECtHR has long held that the mere storage of data can amount to an interference with privacy, depending on its content and context.

So, is the storage of DNA and fingerprints an interference? The ECtHR held that this test was satisfied for biological material (because of the wealth of genetic information it contains), the tiny DNA profiles on databases (because they can still be used to show relatedness and ethnic origin) and (overturning an earlier ruling) fingerprints (because they are stored on a computer allowing precise identification in a variety of circumstances.) It’s a little funny that the ECtHR’s reasoning on the most significant and contentious data, DNA profiles, was tied to some relatively recent side-uses of DNA profiles: familial screening (used to trawl the database for ‘partial’ profile matches, yielding possible relatives of the source of a crime scene sample. This technique was notably used to catch the UK’s ‘shoe rapist’, who was detetected after a partial match to his sister, who was sampled after arrest for drink driving), possibly infringing family life too, and ethnicity tests (most famously used to identify London’s gerontophile rapist as Carribean, mostly likely frm the lower Winward islands.) Would cutting out these techniques save the UK database? Probably not, because the ECtHR’s reasoning on fingerprints (which have no such side-applications was based solidly on its traditional identification use, including the utility for computer assisted identification. DNA profiles, being digital, rather than analogue, are much more suited to comptuer-assisted identification (and, indeed, that is by far their primary database use.) I don’t know why the Court didn’t apply the same reasoning for both profiles and fingerprints. Anyway, the finding that retention of any of these things in an identifable form on a crime detection database breached Article 8.1 was a no-brainer (although, alas, a number of UK Law Lords failed the test.)

The really hard question is Article 8.2, i.e. justification. There’s no doubt that s64(1A) exists ‘for the prevention of disorder or crime’ (although some see the potential other uses as a big point.) But is retention ‘in accordance with the law’ and ‘necessary in a democratic society’? The ECtHR had some concerns about the former, because one of the s64(1A)’s use restrictions – ‘the prevention of.. crime’ – is alarmingly vague (ableit tracking Article 8.2 precisely!) But the Court didn’t decide that point, instead focussing on necessity. The Court, while skeptical of statistics from the UK showing the number of crimes, notably murders and rapes, supposedly solved through database matching to profiles retained from cleared suspects, acknowledged that retention would contribute to crime prevention and detection. However:

The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed…; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

The Court’s conclusion was that ‘the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.’

So, that’s the judgment. But what’s really interesting are the implications: Continue reading

SARC in conversation

A major part of the UK Joint Committee on Human Rights’s work, especially its scrutiny work, is writing letters to the government and publishing the responses. This is a form of dialogue and may also be part of whatever is meant by the concept of a ‘human rights dialogue’. Such conversations can have three broad outcomes: to draw the government’s attention to a potential problem with a bill (or law); to prompt the government to provide additional detail to parliament about an aspect of a bill; and to place the government’s take on some specific issues on the record. The latter angle is controversial in the UK, where there’s an argument that a court taking account of a parliamentary report is a breach of a different bill of rights, the Bill of Rights 1689:

9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

Fortunately, Victorian courts don’t have to puzzle over this provision, as the matter is put beyond doubt by the Interpretation of Legislation Act 1984:

35  In the interpretation of a provision of an Act or subordinate instrument-…  (b) consideration may be given to any matter or document that is relevant including but not limited to- …. (ii) reports of proceedings in any House of the Parliament; (iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.

This provision also makes it clear that SoCs can also be considered. 

In Sabet, Hollingworth J, in deciding whether or not Charter s. 25(1) is limited by its heading, considered the relevance of a SARC report (actually a report of a Ministerial response to an earlier SARC query):

 Finally, in arguing that s 25 is not limited to criminal proceedings, Dr Sabet seeks to draw comfort from a comment made by the Scrutiny of Acts and Regulations Committee, when it was considering the Working with Children Amendment Bill 2007. Section 28 of the Charter requires a Minister who introduces any new legislation to cause a statement of compatibility with the Charter to be laid before the House of Representatives before the second reading speech. The committee considers new legislation as part of that process. During the course of its deliberations, the committee raised a concern that a determination by the relevant Secretary to the effect that a person posed a risk to children, because they had been charged with a criminal charge, may breach the presumption of innocence of the person the subject of the charge. The committee quoted the following passage from a European decision which will be considered shortly: “The presumption of innocence is binding not only on the court dealing with the case but also on other organs of the State.”

In responding to the committee’s submissions, the Attorney-General reiterated the position he has adopted in this proceeding, namely, that the presumption does not apply outside the context of criminal proceedings. In doing so, the Attorney-General adopted a broad view of criminal proceedings, saying that they were not limited to the trial, but would include pre-trial matters, such as bail, and post-trial matters, such as sentencing. Even assuming that the court can have regard to views expressed during such a committee meeting, it is not clear how the court is assisted by that particular committee debate. At best, it demonstrates that there are differing views as to the breadth of application of the presumption – a point that is already patently evident in this case from the contrary submissions advanced by Dr Sabet on the one hand, and the Board and Attorney-General on the other.

Hollingworth is spot on there. While that exchange might somehow be relevant to a debate about the meaning of that particular bill amending the Working With Children scheme, it couldn’t possibly cast light on the meaning of Charter s. 25(1), which was enacted two years earlier and wasn’t being amended by the new bill. So, she got something right!

Anyway, the latest SARC Alert Digest No 15 of 2008 contains a number of fairly interesting examples of this sort of human rights dialogue: Continue reading

SARC in short

I don’t usually cover reports of the Scrutiny of Acts and Regulations Committee in detail on this blog. Given my job advising SARC on ‘human rights’ (i.e. the Charter), it’d be invidious to engage in the kind of detailed critique I mete out to judgments and the like. Criticism of the reports (which are the Committee’s, and may or may not be based on drafts I prepare) would either be a breach of parliamentary privilege or some sort of weird self-flagellation. Given the role SARC has taken on providing some scrutiny of Statements of Compatibility, laying into them is also tricky. But that’s a pity, as SoCs and SARC Charter reports form the overwhelming majority of Charter analysis out there at the moment. But I do try to note developments in the parliamentary dialogue, and there are a number of interesting ones in Committee’s final Alert Digest for the year.

SARC’s role under the Charter is set out in its very own section:

30 The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

But what is a ‘report’? Charter s. 30 says what the report has to be about, but it is silent as to the form of the report. Finding an appropriate style for Charter reports is the trickiest part of my job, much tougher than reading bills and researching the wide world of human rights law. The report has to be simultaneously: (a) accessible to lay parliamentarians; (b) defensible in its legal analysis; (c) parliamentary in its language; (d) faithful to Charter s. 30; and (e) as brief as possible. A further foible – familiar to e-mail users – is the difficulty of getting the tone right, with what are, in a sense, critiques of others’ work. These various priorities, as they say in sentencing judgments, ‘pull in different directions’. Given SARC’s tight timelines, it’s impossible to reinvent the stylistic wheel for each issue. But, in these early years, it’s also important not to get trapped by an initial approach.

When the Charter first commenced, Charter commentary by SARC appeared interspersed with the general summary and traditional commentary on particular provisions. That changed in August or so (around the time I started advising), with the adoption of a separate Charter report at the end of the regular report (reflecting (arguably) the terms of Charter s. 30 and the need for the Alert Digest to be conveniently compiled from drafts by two separate legal advisers). A further change in May this year involved dropping the sections explaining why SARC thought a bill was compatible (often just brief summaries of the Statements of Compatibility), again arguably reflecting the terms of Charter s. 30, and also adopting a less wordy style for the report on incompatibility (with less “The Committee additionally notes…” language), in an attempt to ensure that key human rights concerns aren’t lost in a morass of rights-talk dross (a problem that also arises with SoCs.)

Anyway, a further change, appearing in Alert Digest No. 15 of 2008, is the adoption of some stylistic techniques of the UK Joint Committee on Human Rights. (The JCHR isn’t a scrutiny committee, but the problem of communicating human rights analysis to a lay audience remains.) The new feature is the use of short snappy summaries. Here are the ones from today’s Digest: Continue reading

Relationship ceremonies redux

relationship-certificate1Back in May, I mulled over how the Registrar of Births Deaths and Marriages would exercise its powers under this provision of the Relationships Act 2008:

27(1) The Registrar may enter into an arrangement for the provision of additional services in connection with the provision of services relating to the registration of a registrable relationship, including, but not limited to– (a) the provision of information in the form of a decorative certificate or other document; (b) the provision of information from records maintained under section 26 relating to the registered relationship.

The registry has applied an identical provision in the Births, Deaths and Marriages Registration Act 1996 to provide for decorative marriage certificates and for registry marriages in the Old Treasury Building. I wondered whether there’d also be decorative registration certificates and, more interestingly, state-run registration ceremonies:

Arguably, it has to. The steps of the argument are: (a) that Charter s. 8, in providing for recognition before the law, a right to enjoy human rights without discrimination and a right to equal protection of the law, provides a right for unmarried couples to get the same recognition of their relationship that is afforded to marriage couples; (b) that state-run ceremonies are a form of such recognition and that the fact that marriage requires ’solemnization’, whereas relationships don’t, is not a significant difference; (c) that the Registar is a ‘public authority‘ (not much doubt there: see s4(1)(b)); (d) that the Registrar is therefore obliged to provide the same ceremony to both marriages and relationships under Charter s.38(1) (the conduct mandate); and (e) that the Marriage Act does not make it reasonable for the Registrar to not to do so under Charter s. 38(2)…

On the latter point, the ACT Registrar-General now provides such a service in the form of a ‘commitment ceremony’, attended and ‘managed’ by a Deputy Registry-General for a fee of $275 and including a program of the ceremony that is every bit as lame moving as a a modern wedding:

I partner 1 take you partner 2 to be my partner for life,
I promise above all else to live in truth with you,
and to communicate fully and fearlessly
I give you my hand and my heart
as a sanctuary of warmth and peace
and pledge my love, devotion, faith and honour
as I join my life to yours.

It even allows for the exchange of rings or cups(?) and the interminable ‘readings’. ‘Appropriate Symbols and Music may also add to the sense of celebration (couple to supply music and equipment if music to be played throughout the program.)’ Oh god. Robert McCleland, despite his initial concern about ceremonies ‘mimicking’ marrages, has not vetoed the ACT Civil Parternships Act, indicating that he, at least, doesn’t think that such Registry ceremonies involve some sort of conflict with the Commonwealth’s straight-only marriage law. As near  I can tell, the ACT government does not provide a similar service for people who want to get married. [Can someone confirm this?]

Well, the long-awaited commencement day of the Victorian system arrived yesterday, bringing the news that the Victorian Registry now provides a ‘Commemorative Relationship Certificate’ for the bargain price of $39. (It’s not an official certificate that can be used to gain the sole legal benefit of the scheme, proof that you’re in a relationship for the purposes of Victorian statutes. For that, you need to fork out $25.80 for an official certificate.) See commemorative version above between ‘John James Citizen’, labourer and (ahem) “Sam Smith”, student, both living in Richmond but, it seems, in separate houses. Ah, those old-fashioned types! The commerative (but not official) registration certificate will have a space for the newly-regs to nominate when they ‘celebrated’ their relationship, as well as a separate entry for when they both agree that their relationship ‘began’. (Do married people get to make a similar nomination?)

The version shown above is the ‘eternity’ model. Eternity, that is, until one of you decides to lodge an ‘application to revoke a registered relationship‘, in which case your relationship will be deregistered 90 days later, unless you submit a withdrawal form. (Alternatively, one – or, if you’re straight, both – of you can just get married, in which case deregistration is automatic and mandatory.) Maybe such folks should opt for the ‘calligraphy’ model, which features watermark words like ‘love’ and ‘unity’. But, beware, the revocation form isn’t available yet. However, newly-registereds who already have cold feet can just withdraw their application to register, which isn’t finalised until 28 days after application (or longer if you get some details wrong!) Alas, you won’t get back your $180 registration payment! 

But will the Registry offer relationship registration ceremonies? Continue reading

The right to Miranda

Two days ago, in Salduz v Turkey [2008] ECHR 1542, the Grand Chamber of the European Court of Human Rights unanimously overruled one of its lower chambers, in a case concerning a young man accused of breach of Turkey’s anti-terrorism laws through his alleged involvement with the PKK. Seventeen year-old Yusuf Salduz, arrested on suspicion of being involved in a PKK demonstration and hanging an illegal banner (“Long Live Leader Apo”) from a bridge, was interrogated for two days by government security officers. In accordance with the then Turkish security laws, he was not allowed a lawyer, though he was told of his right to remain silent. He confessed to the allegations and gave samples of his handwriting, which an expert report was unable to conclusively match with the banner. After his charge, he retracted the confession, but was convicted on evidence including the confession, a further expert report and evidence from his alleged partners in PKK-support.

But the facts scarcely matter. At issue was this ECHR right:

6.3 Everyone charged with a criminal offence has the following minimum rights:… (c) to defend himself in person or through legal assistance of his own choosing…

The terms of this right appear to speak about the trial itself. The ECtHR has held that it (and its allied fair hearing right) can have implications for pre-trial interrogation, but that requirement was couched in terms of flexible reasonableness standards:

National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances…

But not any more:

[T]he Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 [the ECHR fair hearing right] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6…  The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

This pronouncement recalls the most famous criminal procedure case of all time: the Warren’s Court’s ruling in Miranda v Arizona:

[W]e hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him

What was startling about Miranda, and is startling about Salduz, is the mandatory nature of the rule: no lawyer (and no waiver) = no admissible confession. Indeed, the link between the two cases runs deep indeed. Salduz, like Miranda, bases its rule explicitly on the privilege against self-incrimination:

In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial..  At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused…  Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination.

And Salduz, like Miranda, takes a narrow view of what can count as a waiver of the right to a lawyer:

The Court further recalls that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial… However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance…  Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent.

All of this is most exciting in Victoria, where Miranda has never been the rule. 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 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

A near miss for the Charter

Victoria’s landmark human rights statute almost got run down by a taxi today:

TRANSPORT Minister Lynne Kosky says an insane killer’s appeal to drive a taxi was one of her first briefs as transport minister. The minister announced a change in legislation this morning, after the Herald Sun revealed a tribunal decision to grant the man taxi accreditation, despite pleas from Victoria’s Director of Public Transport to ban him from the roads. A furious Ms Kosky slammed a loophole that allowed the killer to drive a cab because his acquittal was based on an insanity plea. “If this man was found guilty he would not be allowed to drive a cab, whether he had been rehabilitated or not,” Ms Kosky told 3AW radio. “If he had been found guilty of manslaughter he wouldn’t be able to drive a cab whether he had been rehabilitated or not. “Because he was found not guilty by reason of mental insanity he’s actually allowed.

You’ve got to hand it to those Hun copy writers. ‘Insane killer’ is a masterpiece of accuracy without precision. 

This is, of course, the case I covered three days ago. It’s rare for me to be ahead of the Hun. But, fortunately, the events didn’t fit the scenario I painted a couple of weeks back:

[T]he Charter will only come under threat if it becomes a political football – in other words, if something jolts the public from its present mood of indifference and ignorance.

That’s because Macnamara didn’t apply the Charter (or at least said he didn’t), though he certainly said that what he decided was compatible with the Charter, at least leaving open the possibility that alternative approaches wouldn’t be.

VCAT and Macnamara were the subject of the usual diatribes from the Hun’s readers (some of whom weirdly blamed Hulls too) and some not especially veiled criticism from Minister Kosky:

“I don’t want to comment on VCAT how they’ve made this decision. But I’m really disappointed because the intent of the legislation is very clear. “It is about making sure that customers feel safe when they’re in a cab.” Ms Kosky said she had worked tirelessly to clean up the taxi industry and was incredibly upset a decision was taken that may have jeopardised passenegers. “It is about the perception of safety in our cabs,” she said. “Cab drivers are often alone with individuals in the cabs. “People who drive cabs have a special responsibility and I’ve got a responsibility to give that certainty to the public that they can feel safe every time they pop into a cab.”

That’s a specific criticism of Macnamara’s interpretation of the word ‘comfort’ in s164 of the Transport Act. He didn’t use the interpretation mandate to reach that interpretation, but only because he felt it wasn’t necessary. (His view – correct, in mine – is that ‘comfort’ actually referred to upholstery and the like. No smelly taxi drivers!)

Kosky’s hasty announcement of legislation reforming the ‘loophole’ in the Transport Act that allowed XFJ to fully escape the scheme for limiting the registration of offenders seems like exactly the sort of ‘tabloid-to-statute-book’ legislation that is commonplace in NSW. Fortunately, it seems that the legislation has been long in the planning and, for that matter, it makes perfect sense to close this particular loophole (which caught people found insane after 1997 but not before.) But that change won’t keep XFJ out of the taxi drivers’ seat. It seems obvious that Macnamara would have applied this provision if necessary, which allows all killers, even the super-scary non-insane ones, to clean up drunken passengers’ vomit with VCAT’s permission:

169N(1) A person- (a) whose application for the issue or renewal of a driver accreditation is refused on a ground set out in section 169(2)(b) or (c); or (b) whose driver accreditation is cancelled under section 169E- may apply to VCAT for an order that the Director issue, renew or reinstate the driver accreditation (as the case may be).

(2) On an application under subsection (1) VCAT may by order direct the Director to- (a) issue a driver accreditation to the applicant; or (b) renew the driver accreditation of the applicant; or (c) reinstate the driver accreditation of the applicant.

(3) VCAT must not make an order under subsection (2) to issue, renew or reinstate an accreditation unless- (a) VCAT is satisfied of the matters set out in section 169(1)(b); and (b) the applicant has demonstrated that the issue, renewal or reinstatement is appropriate having regard to the public care objective.

Will Kosky be repealing 169N too? And will she be redefining ‘comfort’ in s164 to expressly include the feelings of taxi passengers (including prejudices against ‘insane killers’)?

The really  interesting question is: what statutory reforms would have been on the agenda if Macnamara had relied on the Charter for his interpretation of ‘conduct’, or for his view that the decision needed to be made in XFJ’s failure and without regard to the unfortunate prejudices of Melbournians? Continue reading

The Supreme Court vs the Charter

Ever since Bongiorno J brought down his decision in Gray v DPP [2008] VSC 4, applying the Charter for the first time, I’ve been hanging out for the Supreme Court to consider the question again. Back then, I was deeply unimpressed with Bongiorno’s analysis. It appeared to ignore significant elements of the operative provisions of the Charter. In that respect, it was a sign of things to come. Not reading the Charter has been the hallmark of Charter cases this year.  To my surprise, the issue of bail did not speedily return to the Supreme Court or the Court of Appeal. Newspaper reports revealed that Gray was applied in two later cases in the magistrates court. And then, nothing (published.) More recently, the VGSO seminar and an annual report revealed, with no apparent embarassment, that the magistrates courts simply stopped applying Gray. If true, that’s a surprising approach to precedent and sends a dire message about the significance of Charter precedents, even flawed ones.

Today, over ten months after Gray, the case has, at last, returned to the Supreme Court. In one respect, that’s an exciting development: the first time that the Supreme Court has been asked to apply an earlier Charter judgment setting out rights and an operative response. (The only other Charter judgment that’s been cited in the Supreme Court is R v Williams [2007] VSC 2, but that’s just an authority for not applying the Charter.) Alas, in other respects, Re Dickson [2008] VSC 516, is an appalling development, responding to Bongirono’s non-analysis of the Charter with some opposing non-analysis. The Victorian judiciary’s complete inability to do the slightest justice to a short, important statute is stunning, depressing and the entrenched norm.

George Dickson is, it seems, an even less appealing Charter rights claimant than the Charter’s first ever beneficiary, Kelly Gray:

Mr Dickson is charged with 25 counts of armed robbery and 4 counts of attempted armed robbery alleged to have been committed between August and November 2006. The offences apparently all involve armed robberies or attempted armed robberies on 24 hour convenience stores. These are serious offences involving a disguised offender using a knife. The offences involved the removal of, in some cases, tens of dollars and in other cases several hundreds of dollars. Mr Dickson has prior convictions for armed robbery in Victoria and Queensland….

On 3 April 2008 the applicant was sentenced in the County Court of Victoria for obtaining property by deception to 180 days’ imprisonment. On 23 April 2008, the parole on which he had been released in relation to earlier offences was cancelled. He has remained in custody and, as I understand it, has been serving pre-existing sentences and breached parole for a significant portion of the time since then. I am told that even if he were granted bail in this Court, he would not necessarily be released unless he was granted parole. It is by no means clear that would occur either.

But he has a number of things in his favour. First, he was charged on 20th March 2007, bringing him within the Charter’s stupid transitional provision. Second, the relevant bail provision at issue is the same one as was at issue in Gray (another alleged armed robber):

4(4) Where the accused person is charged-… (c) with an… offence in the course of committing which the accused person… is alleged to have used or threatened to use a firearm, offensive weapon, or explosive… the court shall refuse bail unless the accused person shows cause why his detention in custody is not justified

Third, thanks to the Crown’s decision to lead extensive similar fact evidence at his trial (thus blowing out the expected length of the hearing to three months and requiring a rescheduling), he will spend a minimum of two years and three months in prison awaiting his trial. Indeed, he has already spent a year-and-a-half, engaging the second and third limbs of this interesting right:

21(5) A person who is arrested or detained on a criminal charge- (a) must be promptly brought before a court; and (b) has the right to be brought to trial without unreasonable delay; and (c) must be released if paragraph (a) or (b) is not complied with.

Justice Lex Lasry had this to say about the question of whether or not the ‘delay’ was ‘unreasonable’:

The phrase “unreasonable delay” is not otherwise defined and nor would one expect to be. It must be regarded as descriptive given the particular circumstances. The section also appears to imply that for a delay to be “unreasonable” it would have occurred for reasons not attributable to the fault of the applicant. It was submitted on behalf of the applicant in this case that a total delay of two years and three months is unreasonable. That would be a difficult proposition to reject.

Who knows why the section ‘appears to imply’ that the delay musn’t be attributable to the applicant? Does it say that somewhere? But, anyway, it’s accepted that, in this case, the delay is attributable to the Crown (in belatedly seeking to adduce reams of similar fact evidence) and, perhaps, the County Court, which is notoriously suffering considerable delays. Anyway, Lasry’s finding that 21(5)(b) is satisfied is unequivocal. So, that means that Dickson has the right ‘to be released’. Right?

But, suddenly, Lasry decides to stop reading the Charter and instead goes about the task of distinguish Gray. Not, mind you, on the basis that Gray ignores the Charter’s operative provisions, but rather becuse the facts are different:

It is not submitted on behalf of the applicant before me that he will spend more time in custody than he is likely to serve upon a sentence particularly bearing in mind that his present custody involves revoked parole and is not simply pre-sentence detention. In Gray his Honour further concluded that the applicant was not a flight risk and there was little tangible evidence to suggest that the applicant would interfere with witnesses. Ultimately, his Honour concluded that the applicant had established that his continued incarceration was not justified and he was released on bail. What his Honour’s ruling demonstrates is that the Charter has a significant role to play in emphasising the importance of particular rights, but when it comes to the right to be brought to trial without unreasonable delay, that right remains to be considered within the appropriate or relevant provisions of the Bail Act.  I note at this point that in my opinion the circumstances confronting his Honour in Gray are quite different from those before me. First, in this case given the particular circumstances a significant amount of the applicant’s time in custody might not be reckoned as pre-sentence detention. Second, given Mr Dickson’s mental condition and its apparent connection with his offending, there is a risk that he might commit further offences if he were released. It is put by Mr Atkinson that there is also a risk of interference with witnesses although Mr Atkinson accepts that such a risk is more circumstantial than actual.

These are, indeed, all important differences. But they don’t change the fact that the terms of Charter s. 21(5) are engaged, including Charter s. 21(5)(c), one of the few uneqivocal rights to a remedy that appear in the Charter. Gray, by contrast, didn’t engage Charter s. 21(5)(c), as he had not, at the point of his Supreme Court application, been delayed too long. Instead, the only right he had engaged at that point was Charter s. 25(2)(c), which contains no remedy provision.

So, instead, the question is one of operative provisions. Here’s the argument made by Dickson’s counsel;

Mr Traczyk submitted on behalf of the applicant that the enactment of the Charter has brought about a significant change in the law in Victoria. Prior to the enactment of the Charter, it was submitted, there was no legal right to a speedy trial in Victoria. Mr Traczyk however submitted that s 21(5) of the Charter has clearly created a legal right to be brought to trial without unreasonable delay. It was further submitted that the Charter requires that the provisions of the Bail Act must be interpreted in such a way as to give full effect to this right. Indeed it was initially submitted, on behalf of the applicant, that where a person has been held in custody for a period of time which a court determines is unreasonable, that person should be released on bail, regardless of any other circumstances.

Now, that’s a far from perfect argument, as it appears to treat Charter rights as operative on their own and fails to note the caveats to the interpretation mandate. But, on the other hand, it clearly identifies the relevant operational provision being relied upon. Later, Traczyk makes a less extreme submission:

Mr Traczyk further submitted that even where an unacceptable risk has been shown, the overriding question in determining whether an individual should be released on bail in cases where delay is cited as exceptional circumstances or good cause is whether release on bail is required to give full effect to that individual’s right to be brought to trial without unreasonable delay.

That doesn’t seem to bad an argument. Moreover, Traczyk had a plan to manage any risk posed by Dickson:

It was submitted by Mr Traczyk that if I were inclined to release Mr Dickson on bail I could impose a condition in general terms that he not be released unless and until he was granted parole and that if that occurred, that within 48 hours of release, he report to the North Western Mental Hospital and from then on obey the lawful directions given to him at that institution. Mr Traczyk provided to the Court, on the applicant’s behalf, a letter addressed to the solicitors for the applicant and signed by Ms Elizabeth M. Williams, Psychiatric Nurse at North Western Mental Health. The letter, which is dated 21 November 2008, indicates that should Mr Dickson be granted bail, the clinic at Northern Hospital can offer a Case Management Intake Assessment to the applicant on Friday, 28 November 2008.

A potentially neat case-specific solution to s4(2)(d)’s ban on releasing people who pose an ‘unacceptable risk’. Indeed, there also seems to be an equal protection argument based on Dickson’s diagnosis of schizophrenia, which Lasry was concerned wouldn’t be effectively treated in jail. 

So, isn’t it time, at long last, for a Supreme Court judge to give serious consideration to the meaning and effect of Charter s. 32(1) Alas, no:

I cannot conclude that the Charter requires that the Bail Act be interpreted to allow for an accused to be released on bail, regardless of an established unacceptable risk, whether it be a risk of flight, re-offending, interference with witnesses or otherwise. Section 1(2) of the Charter provides, in relevant part: The main purpose of this Charter is to protect and promote human rights by— (a) setting out the human rights that Parliament specifically seeks to protect and promote; and (b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; …  Section 1(2)(b) of the Charter requires that other statutory provisions be interpreted “so far as is possible” compatibly with human rights. The provisions of the Bail Act contain no reference to delay or to a right to a speedy trial. In this particular case, the Bail Act requires me to refuse bail unless the applicant shows cause why his detention in custody is not justified.

Charter s. 1???? What freaking planet is Lasry from? That’s the Charter’s purpose provision. It doesn’t have any operative effect. Here’s what the relevant operative provision says:

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.

Now, granted, it so happens that Charter ss. 1(2)(b) and 32(1) are in pretty much the same terms. But whereas the former is an aspiration, the latter is a legal command. There’s a ‘must’. There’s also a clear reference to relevant comparative law. And there’s also a requirement that any interpretation be consistent with a provision’s purpose. Relying on Charter s. 1 is the kind of thing a (poor) undergraduate student (or Mirko Bagaric) would do.

Now, it’s clear that Lasry thought that the suggested interpretation went beyond what was ‘possible’ under the Bail Act, something Bongiorno failed to consider. Good for him.

But: (1) Lasry doesn’t explain why the Bail Act can’t possibly be interpreted in that way. What words stand in the way? And why? Overseas judgments have made it clear that the natural or settled meaning of words is no barrier. Some go so far as saying that the words themselves are no barrier. Lasry seems to see things otherwise. But why? (2) While, I certainly think it’s arguable that s4(2)(d), which bars bail for people who are an ‘unacceptable risk’, is pretty hard to get around, it’s less clear that the wording of s4(4)(c) is similarly unmalleable, so surely Lasry had to consider whether or not those words needed to be re-interpreted to permit release in a case of unreasonable delay? (3) Lasry neglects any consideration of the purpose of the Bail Act too, which might be a more sound reason to reject the argument put by Gray. (4) Also, if Lasry is right that the Bail Act ‘cannot be interpreted consistently with human rights’ then shouldn’t Lasry be mulling over the need for a declaration of inconsistent interpretation, which would of course require both notice and a consideration of Charter s. 7(2)? (5) I know this doesn’t seem to have been argued, but isn’t there also a conduct mandate issue too, in relation to the OPP and, perhaps, the County Court’s registry?This argument would face some hefty Charter s. 38(2) & 39(1) hurdles, of course, but the remedy of habeus corpus could be apt. (The fact that Dickson was confined on other charges would, of course, seem to be a barrier to them.) Alternatively, there’s the remedy of a stay, which seems to be the (controversial) Canadian approach.

[EDIT: And, (6) When I think about it, the specific reason for Dickson’s delayed trial – the Crown’s apparently belated decision to lead lots of similar fact evidence and the County Court’s willingness to adjourn to accomodate that – seems to carry lots of opportunities for a remedy for Dickson, although it may be too late now. Wouldn’t a better response have been to tell the Crown that if it wanted to move the trial date, it’d have to accept the bail of Dickson?]

Eh, why even bother listing all these things? They all assume that judges have even the slighest interest in what the Charter actually says. Continue reading

The Charter vs taxi passengers

taxidriverOctober 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. Continue reading

The Charter vs Parliament

nzeditorialOne of the core principles of the Charter is that it doesn’t affect Parliament’s powers. Those powers are preserved by the limited nature of the Charter’s operative provisions (limited to interpretation, and excluding the non-administrative capacities of parliament from the oblgiations mandate.) They are also made clear in three express savings provisions:

29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

32(3) This section does not affect the validity of- (a) an Act or provision of an Act that is incompatible with a human right; or (b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

But could the Charter still be raised in court in an action against Parliament?

Petra Butler recently gave a talk at Melbourne Law School about just such an action in New Zealand. The recently booted-out Labour government caused a lot of controversy by passing a new Electoral Finance Act late last year. (See the pictured front-page editorial in the NZ Herald, featuring a gagged man, which was later the subject of a successful press council complaint.) An article in the latest issue of the Public Law Review outlines a number of concerns about the statute, notably its quite extreme limits on third-party advertising. Indeed, incoming PM Key has earlier announced that repealing the Act will be his first move upon his election. For NZBoRA groupies, a further controversy is how the NZ Attorney-General Michael Cullen fulfilled the following obligation under the NZBoRA:

7 Where any Bill is introduced into the House of Representatives, the Attorney-General shall,— (a) In the case of a Government Bill, on the introduction of that Bill; or (b) In any other case, as soon as practicable after the introduction of the Bill,— bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

Cullent didn’t report. In accordance with the usual (and excellent) NZ practice, the legal advice he received on the issue is published, complete with the names of the advising lawyers: Val Sim, Crown Counsel and (a name now familiar to Charter groupies) Joanna Davidson, as peer reviewer. The advice described the freedom of expression views as ‘finely balanced’ but deferred to Parliament’s ‘wide margin of appreciation’. Andrew Geddis, in the PLR, casts this ‘vet’ as ‘overly deferential to the government’s policy preferences’. 

Somewhat astonishingly, an action was commenced in New Zealand’s High Court seeking a declaration that the Attorney-General was in breach of s7 of NZBoRA. The action was commenced before the Bill was passed, but the High Court declined the request for urgency. By the time the action was heard, the Bill had passed, but declarations were sought on the basis that a declaration should be made about the past breach and that s7 required the Attorney-General to recommend the re-introduction of the bill accompanied by an appropriate s7 statement. The Attorney-General responded with a request to strike out the application as an interference with parliament and as an attempt to seek an unavailable declaration remedy on a moot point. In Boscawen v Attorney-General [2008] NZHC 949, a judge of the High Court agreed to the striking out. Denis Clifford’s key finding was that:

when the Attorney-General responds to his duty under s 7 of NZBORA and determines ­ as the case may be ­ that there are or there are not inconsistencies between a bill and the rights and freedoms contained in NZBORA, and therefore determines whether to draw or not draw such inconsistencies to the attention of the House, the Attorney-General performs a function which falls within the proceedings of Parliament. I think, therefore, that questions of the privilege, whether described in terms of non-interference in the internal proceedings of Parliament, or as questions of Article 9 [of the Bill of Rights 1689] privilege …  mean that judicial review is not available.

According to Butler, the striking out has been appealed to the NZCA, but it would be quite a surprise if it reaches a different conclusion.

The general principles cited in Boscawen are also part of Victorian law. So, would they apply to the equivalent provision of the Charter?:

28(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(3) A statement of compatibility must state- (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

As is well known, Charter s. 28 differs from NZBoRA s7. In NZ, statements must only be made if the A-G thinks a bill is incompatible. By contrast, the Charter requires a statement for every bill. This strikes me as a potentially significant difference, because the making of a statement, as opposed to its content, is not a question of legal judgment about the human rights content of a bill. Continue reading

The rights of the woman without a face

The Age today caught Melbournians up with a crime mystery that’s been circulating for a year now. It concerns an alleged  serial killer, linked to dozens of crimes, big and small, by her DNA. Sometimes called the “Phantom of Heilbronn”, the Age uses her other nickname:

On New Year’s Day in 2003 at Dietzenbach, near Frankfurt, an office was broken into and a coffee tin of loose change stolen. “It was a professional job,” said Guenter Horn, another high-profile prosecutor liaising with police. “She left no fingerprints. But she did leave a scraping of skin, and that was enough to pin the job on (the Woman Without a Face).” In all there have been 30 break-ins and hold-ups that have yielded her DNA identity, in addition to the murders.

On May 2005, in the city of Worms, a local gypsy turned a gun on his brother. Police later found the phantom’s DNA on one of the bullets. Police went on television in April 2005 with an appeal to the public for tips, but to no avail. Then came the killing of officer Michele Kiesewetter. She and a colleague who has never been named were assigned to an undercover drugs squad in Heilbronn when at least two people climbed into the back of the car and shot them both in the head at point-blank range. Ms Kiesewetter died instantly, her partner lingered on in a coma for months, before the bullet lodged behind his right eye was removed. He remembers nothing of the incident. Nothing was taken from them save their handcuffs. Chief Superintendent Horst Haug of Special Commission Parkplatz said: “It was brutal, apparently random and with no apparent motive. What are we dealing with here? And who is the accomplice?”

Police revealed that other DNA traces were found at crime scenes indicating she sometimes operated in tandem with another. But no two crime scenes yielded the same DNA, indicating she picks up and discards helpers with the same casual abandon with which she kills. Kurt Kletzer, a noted Viennese psychiatrist, says the Woman Without a Face is “intriguing and disturbing” in equal measure.

To me, the case has an intriguing and disturbing resemblance to a hypothetical I once raised with a Victorian Parliamentary Committee on 2003, back in my earlier incarnation as a researcher on mass DNA screenings. As it happens, Germany is the world’s leader in ginormous mass DNA screenings, some literally of 100,000 and many in the tens of thousands. Soko Parkplatz is a relatively small one, with only a couple of thousand samples taken from Germany women to date. The thousands of samples are either from Germany’s DNA database of convicted offenders or a so-called voluntary mass screening of some other usual suspects. But that screening assumes that the Woman Without a Face is a criminal! The real woman may be a lot closer than the Germany police seem to think.

Right before I testified, a representative from Victoria Police was asked what he thought of the idea of creating a database of police DNA for elimination purposes. DI Cowlishaw of Victoria Police’ DNA implementation unit said:

The database has been set up for the purpose of finding out who has committed crimes and putting criminals on it. Police officers have very strict rules as to who they can get a DNA sample from. What a lot of police officers say, and have objection to, is that they have committed no offence themselves, apart from being a police officer, and they have been asked to go on a database, where people who have committed crimes such as thefts, theft of motor cars and those sorts of offences, which by community standards are considered to be serious offences, do not have to go on a database. A lot of them object on those grounds.

These are, of course, all claims that would now been framed in terms of the Charter. Indeed, the government has taken a broad and enlightened view of the scope of all sorts of criminal process rights, but only when they apply to police officers. Cowlishaw went on to make a dubious claim that Victoria’s current legislation doesn’t even permit police officers (as opposed to ‘third party volunteers’) from being asked for their DNA.

So, rights vary depending on whether the volunteer is a second party or a third party. But which party is the woman without a face? Continue reading

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: Continue reading

Positive obligations under the Charter

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

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

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

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

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

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

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

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


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

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

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

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

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

Flugge’s challenge

flugge_narrowweb__300x4530Boy, it’s suddenly gotten busy. Two challenges to SSOMA . One to MC(IP)A. Bell’s hearing next week on mental health. A taste of Victoria’s glorious Chartered future. But those are pending matters. Decided matters still drip through and make little splash. Today, the Victorian Supreme Court issued judgment in Trevor Flugge’s Charter challenge, Re AWB Limited [2008] VSC 473. Flugge won, but the Charter point wasn’t considered.

Flugge’s case and its demise follows directly from these conclusions of the Cole report into the Australian Wheat Boad’s role in the Oil-for-Food scandal:

I]n my view:

  • Mr Flugge might have been either reckless, or intentionally dishonest, and might have failed to exercise his powers or discharge his duties either in good faith in the best interests of AWB or for a proper purpose and therefore might have committed an offence against s 184(1) of the Corporations Act 2001
  • Mr Flugge might have dishonestly used his position and been reckless as to whether the use of his position may have resulted in Iraq or an Iraqi entity directly or indirectly gaining an advantage and therefore might have committed an offence against s 184(2) of the Corporations Act 2001
  • Mr Flugge might have failed to exercise his powers and discharge his duties in the best interests of AWB and for a proper purpose and therefore might have contravened s 181 of the Corporations Act 2001
  • Mr Flugge might have failed to exercise his powers and discharge his duties with the degree of care and diligence that a reasonable person would exercise if they were a director of a corporation in AWB’s circumstances and occupied the office held by, and had the same responsibilities within the corporation, as Mr Flugge and therefore might have contravened s 180 of the Corporations Act 2001.

It is a serious matter for an officer of a public corporation such as AWB to authorise the corporation to enter into agreements in breach of statutory duties that the officer owes to the corporation, particularly where the officer acts intentionally, dishonestly or recklessly in breach of those duties.

I recommend that this matter be referred to the Task Force for consideration of whether proceedings under sections 180, 181 and 184 of the Corporations Act 2001 be instituted against Mr Flugge.

I note that section 1317K of the Corporations Act 2001 imposes a six year limitation period for the commencement of proceedings arising from contraventions of civil penalty provisions. Accordingly, the referral to ASIC should only be in relation to the conduct of Mr Flugge that occurred from 2001 onwards

The key nuance is that Cole’s findings supported both ‘civil penalty’ proceedings (which can attract disqualification and ‘pecuniary penalties’) and criminal proceedings (which can attract fines and prison.) While the concept of a civil penalty proceedings was initially conceived as an alternative to criminal prosecution, the scheme was eventually changed to allow criminal proceedings to go ahead even though civil proceedings were in place or had concluded. The reverse couldn’t occur, unless the civil proceeding failed.

In the case of Flugge and four other directors against whom Cole recommended both civil and criminal proceedings, ASIC said that it would do the civil proceedings first, because of the civil statute of limitations. (By coincidence, one of the relevant contracts commenced on 20th December 2001, meaning that the six year cut-off was 19th December 2007. If Coghlan’s ridiculous decision in BAE Systems Australia is correct, then that starting-point, weeks before the Charter’s full commencement, would have barred the Charter from the case. That’s a point wasn’t resolved here.)

What was argued was that the serial procedings were unfair to the defendants, mainly because they would have to choose between revealing their defences (including possibly testifying) in the civil proceedings (which will feed handy information for the criminal prosecutions) or not doing so, possibly harming their civil defence. There is a provision barring the use of evidence adduced by the defendant in civil proceedings in the later criminal ones. But, like the other Charter case involving overlapping proceedings – Bongiorno’s concern about the coercive questioning regime operating in parallel with a criminal prosecution – the bar doesn’t extend to ‘derivative’ information.

Flugge et al argued that the civil proceedings ought to be stayed until the criminal matters are resolved. This would, of course, solve ASIC’s statute of limitations problem, but ASIC nevertheless resisted the stay. The question of whether or not a stay should be granted turned on a 1982 case, McMahon v Gould, which set out an ‘interests of justice’ test that gave priority to the right of ‘plaintiffs’ to pursue whatever actions they want. But later authorities suggested that the balance should shift in favour of a stay, in particular because of the potential for defendants in civil proceedings to have to testify (or otherwise defend themselves), thus undermining their right to silence in a later criminal matters. The Charter was thrown into this mess of precedents as follows: Continue reading

More on the sex offenders’ challenge

I happened to be in the legal precinct today and dropped by to listen in at the sex offenders’ challenge in the Court of Appeal. Pamela Tate was speaking (presumably for the Secretary, rather than with her ‘neutral’ hat on intevening for the Attorney-General. At least, that’s sure how it sounded.) There were nine barristers there (presumably three each for the two fiends – I spotted Kris Walker. Some VEOHRC staff were there, but it didn’t look like the commission was intervening. [EDIT: Nope, they are intervening, and will speak after the S-G. So, maybe I’m wrong and the A-G was intervening too? It’d be handy if they could colour-code those wigs of theirs.] There was no talk of a declaration, so I assume none of the required Charter s. 36(3) notices are out on that one.  

It’s dangerous to try to sense the mood when you only watch part of a case – as the mood can be the opposite when the other side speaks – but the case didn’t seem to be going at all well for Tate, with Maxwell and Weinberg both hammering into her. Nettle was quieter and even helped her out every now and then.

Anyway, some tidbits I picked up:

  • A comity of errors: One issue (possibly the only one) is the interpretation of ‘likely’ in s11 of the SSOMA. It certainly does seem to be in the cards that the CoA will overrule Callaway in TSM (despite only being a three-judge bench.) Indeed, both sides seemed to disagree with Callaway, with Tate describing his judgment as somewhat confused (which it is.) Hilariously, Tate’s argument is that Victoria should follow the present approach of the NSW Court of Appeal. Regular readers will recall that the NSWCA reached that interpretation reluctantly out of comity with Callaway in TSM! To sustain her argument, Tate had to claim that the NSWCA’s actually misinterpreted Callaway and somehow stumbled onto the right answer.  It’s hard to see how this sort of error can be persuasive, especially when the NSWCA clearly said that, but for comity, it wouldn’t have followed TSM at all but rather would have adopted a stricter standard (which, presumably, Tate thinks is the wrong standard.) Tate, trying to get away from Tilman, relied instead on the follow-up case, Cornwall. Readers will recall that Cornwall was the first bloke the NSWCA refused to detain, ruling that there was no ‘high degree of probability that he was likely’ to re-offend and that electronic supervision would do. He had his bracelet off and melted away within 30 minutes. Surprising that the Victorian government thinks that that’s the perfect test. I guess that Tate will argue that, although the NSWCA stated the correct test in Cornwall, they nevertheless misapplied it to the facts. 
  • A non-‘trivial’ bar: Tate’s big pitch was that, whatever the test is, it shouldn’t be quantitative. That’s because she knew that the court would then go for the ‘more likely than not’ standard that the NSWCA would have backed were it not for TSM, which would certainly narrow the SSOMA scheme. Not that she said that; rather, she argued (1) it would go against the legislature’s choice to use the word ‘likely’, which she claimed (to Weinberg’s incredulity) wasn’t quantitative. Maxwell kept point out that all that was clear is that the test isn’t normative (e.g. a Briginshaw-like standard that re-adjusted itself according to what issues were at stake.) Tate very reluctantly agreed with that. 2) It would encourage over-reliance on statistical expert evidence. Weinberg’s response was that the best way to stop statistical evidence is to stop asking for it and listening to it. Maxwell was concerned that trial judges need an intelligible standard. He could hardly keep a straight face when Tate suggested that defining ‘likely’ to mean ‘a sufficiently substantial risk’ would provide the required certainty (and wouldn’t be ‘normative’.)  The judges then mooted the idea that the bar should be high indeed, given how extraordinary ESOs are. Tate firmly stated that the bar should not be ‘trivial’. That’s quite a concession. She then embarked on some stats to show that of the 150 eligible offenders released last year, the Secretary only called for reports on 34 and only sought orders on 10. Of those tenm seven were granted and the other three were… pending. Weinberg asked whether that meant that none had been refused. ‘Um’ retorted the S-G, until Weinberg pointed out the math. Tate countered with more stats, which suggested that of 40 court applications to date, ‘several were withdrawn’, one was reversed on appeal and one was rejected. A high bar indeed. Attrition stats are always tricky in a discretionary system aren’t they?
  • A non-criminal process for locking up criminals: ‘So, you’d better address Charter s 7(2) then’, said Maxwell. Uh, there’s an intervening step, said Tate: have any rights been limited? That is indeed true, but why she wanted to embark down that road is beyond me. But embark she did, passionately arguing that Charter ss. 25(c), 26 and 27 didn’t apply because of Fardon, the High Court’s umpteenth refusal to apply Kable. Maxwell was a bit dubious about the relevance of Chapter 3 to the meaning of ‘punish’, but Tate pressed Gummow’s  ‘normative scheme’ approach. According to Gummow, ESOs are nothing at all like criminal sentencing, because ESOs are simply triggered by guilt but are imposed for other reasons. As opposed to sentencing, which… um…. anyway. Tate also mentioned a UK case that Maxwell snorted was about non-contact orders, not supervision. Somehow, the model litigant didn’t see fit to talk about Belcher, where the NZCA held that almost identical legislation was punishment for the purposes of NZBoRA’s criminal process rights. I guess that’s in the written arguments. But why wouldn’t she be responding to what her opponents said on that? I hope they know about it! Weinberg raised the fact that SSOMA says that proceedings are criminal. Tate said that was not-determinative but just a starting point and was just a mechanism to ensure that the Secretary had the same obligations as a prosecutor. Weinberg was confused: does the Secretary usually have less obligations than a prosecutor? Nettle chimed in with something about having to call adverse witnesses. Maxwell suggested that, if the proceedings are criminal, then maybe contested facts need to be proven beyond reasonable doubt? Tate said she was sur that the test was balance of probabilities. But you’ve gotta wonder if that will be true in 2010 when s141 of the Evidence Act 2008 kicks in.
  • ESOs and helicopter mums: Tate did concede that ESOs limited one right: freedom of movement. (It’s not clear whether or not the fiends raised any others. Self-incrim, alas, didn’t get a look-in.) So, it’s time for 7(2). Tate started by saying that you need to look closely at the nature of the right. Weinberg said: movement’s pretty important isn’t it? It’s essential to liberty. Tate argued that, at international law, ESOs don’t engage the right to liberty at all. Maxwell asked her to say that again so that no-one misunderstands it. Ouch. She valiantly insisted that ESOs could be likened to mum and dad telling the kids to phone then when they get to their destination. Weinberg pointed out that, regardless, movement was high on the scale in 7(2)(a). Tate sounded unhappy about that. I wonder what’s high on her scale? Life, I guess. What I don’t get here is that all the arguments were about the mandatory bits of the ESO scheme. But an ESO also exposes you to the discretion of the Adult Parole Board, which can order stuff like mandatory medical treatment, having to ‘reside’ at Ararat Prison, who you can associate with, whether you can use the net, etc. There are plenty of rights limitations there. The Board, of course, isn’t bound by the Charter. So why don’t ESOs engage all those rights? It’s not clear that that’s what the sex offenders are arguing, though. Strange.

And that was it for the day. They’re at it again tomorrow, but I’ll skip it.

Again, caution is necessary, but Tate seemed to know that she’s going to ‘lose’ at least 2-1, in the sense that the judges are going to toughen up the TSL threshold to ‘more likely than not’, at least and cite the Charter as the reason. I can’t help but think that Tate is just going through the motions now and planning a High Court appeal, where the judges who were in the majority in Fardon will presumably be more sympathetic to her take on things.

More on Bongiorno’s challenge

Further to this previous post, I’ve belatedly noticed that the Charter issue relating to the coercive questioning powers in the Major Crimes (Investigative Powers) Act 2004 is discussed in the Annual Report of the Special Investigations Monitor (SIM). Here’s the discussion:

During one application for a CPO in the period under review, His Honour Justice Bongiorno raised the possible conflict between s. 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) and s. 39 of the MCIP Act. The application concerned a person who was already charged by police for the offences the subject of the application for the coercive powers order. His Honour expressed concern that Victoria Police sought to summon that person to attend for examination and therefore be compelled to testify against himself/herself or to confess guilt contrary to s. 25(2)(k) of the Charter. Accordingly, His Honour sought written submissions on the matter and adjourned the application for the coercive powers order until resolution of the potential conflict.

Subsequent to this application for a CPO before Justice Bongiorno, a further two applications for a CPO and an application for an extension of a current CPO were made before His Honour Justice Cummins. The two applications for a CPO were adjourned on the grounds that the same issue as that raised by Justice Bongiorno applied. In respect of the application for an extension of a current CPO, His Honour Justice Cummins imposed a condition in the following terms:

“Any person who has been charged with any offence linked to the organised crime offence – the subject of the CPO – will not be summoned to give evidence (at an examination) until resolution of the issue with respect to s. 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006.”

The Chief Examiner has advised the SIM that on the instructions of the Chief Commissioner of Police, written submissions, to which the Solicitor General has contributed, have now been compiled by the Victorian Government Solicitor’s Office and submitted to His Honour Justice Bongiorno for consideration. Important issues are involved which are yet to be determined by the Supreme Court.

This fits what I previously discussed. It’d be great to see those written submissions. I’ve never entirely understood why these things aren’t published somewhere. How likely is it that the Solicitor-General’s arguments are going to be full of confidential information? 

What is of particular interest is the news that Cummins J imposed a condition on an existing CPO barring its use in relation to charged defendants. Previously, I couldn’t see how a potential breach of the Charter required that this step was taken. But I hadn’t noticed this provision of the Major Crimes (Investigative Powers) Act 2004:

8 The Supreme Court may make a coercive powers order if satisfied- (a) that there are reasonable grounds for the suspicion founding the application for the order; and (b) that it is in the public interest to make the order, having regard to- (i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and (ii) the impact of the use of coercive powers on the rights of members of the community.

It could be argued that the interpretation mandate now requires that s8(b)(ii) be interpreted to require the Supreme Court to refuse an order (or impose conditions on it) if to do otherwise would be to authorise a breach of Charter rights. On the other hand, though, there’s a question of whether or not this interpretation is tenable, given the balancing test between crime-control and due-process envisaged by s8(b) and the apparent purpose of the legislature to strike such a balance. Presumably, this issue could be resolved by some close attention to Charter s. 7(2).

Interestingly, the same SIM report discusses a court judgment, CR v Attorney-General [2007] VSC 263, about the limits of the Supreme Court’s power to impose conditions on a CPO:

9(1) A coercive powers order must state that the Supreme Court is satisfied of the matters referred to in section 8(a) and (b) having regard to the matters referred to in section 8(b)(i) and (ii).

(2) A coercive powers order must also specify-… (g) any conditions on the use of coercive powers under the order.

Some cheeky judges started imposing a condition that any witness summons be made by the court (rather than by an alternative provision allowing the Chief Examiner to make the summons.) The Chief Ex challenged this as overriding the legislation’s permission for him to do exactly that. But the court held that the rights component of s8(b) allows courts to override the legislation in that way: Continue reading