A very Charter Christmas

shacIt must be the silly season, because why else would The Age cover the Charter?:

STUDENT squatters will try to use Victoria’s charter of human rights to stop their eviction from Melbourne University-owned buildings. The students — who have been occupying the Faraday Street terrace houses in Carlton for the past four months — were summonsed to appear in the Victorian Supreme Court yesterday for an eviction hearing. The Student Housing Action Collective want to use the terraces to create a student housing co-operative, but the university wants to develop it into off-campus student space.

Teishan Ahearne, from the collective, accused the university of using the Christmas break to move against the squatters. “The university is playing Mr Scrooge, attempting to evict homeless students on the eve of Christmas. Their actions are utterly unjust and sneaky,” she said. Yesterday the court heard that the university had begun the proceedings to comply with a building notice issued by the City of Melbourne. That notice said the buildings had to be vacated by January 7.

But Chris Povey, for the students, said his clients would seek to invoke Victoria’s charter of human rights to prevent the university from moving them on. He told the court that should the students be evicted many of them faced homelessness. Justice Cavanough agreed to adjourn the hearing to January 5, but ordered any applications under the human rights charter had to be filed with the court by December 30.

So, the students can spend Christmas in their terrace houses, but, thanks to nasty Charter s. 33 and Practice Note No. 3, they’ll have to spend their holidays swatting up on the Charter.

Alas, as I’ve discussed several times on this blog, the intersection of tenancy law and human rights law is a perfect storm of the Charter’s curmudgeonly operative provisions:

  • First, the students need to find a right that has been breached. In conrtast to some of the more heartrending (or maddening) human rights tenancy cases of yore, this one doesn’t seem to involve any families or kids, so Charter s. 17 won’t help. Nor are there discrimination issues. So, everything will have to rest on the narrow shoulders of Charter s. 13(a)’s right against arbitrary interferences in the ‘home’.
  • Second, there’s the problem that the Residential Tenancies Act‘s statutory language isn’t exactly amenable to re-interpretation to prevent ‘eviction into homelessness’. And there’s also the problem that any such friendly interpretation will be contrary to the rather unfriendly purposes of statutory tenancy law (and, if Hansen rules, may go further than the reasonable limits jurisprudence allows.) (I’ll take the students’ word that they have nowhere to go, though it does remind me of some former friends from my uni days who stole from the Salvo’s. ‘Who’s poorer than us?’, they asked. Fortunately, they both have jobs in top overseas unis now. Maybe that theft let them crawl out of the poverty spiral.)
  • Third, there’s the conduct mandate route. But: (a) is the Uni a public authority?; (b) is eviction incompatible with the Charter right against arbitrary interference in the home?; (c) does the RTA provide the uni with Charter s. 38(2) cover? (d) is relief against eviction one of the non-Charter remedies that can squeeze through the thicket of Charter s. 39?

Bah humbug!. But at least the students may emerge (from their studies and their terrace houses) with some very handy expertise on the limits to Victoria’s Charter….

(Charterblog will, unsurprisingly, go quiet for a couple of days. Alas, there’ll be some more surprising quiet not too long after that. See the flurry of posts around New Years’ Eve….)

Maxwell & Weinberg’s Charter dodge

It’ll take me three posts (I think) to cover the fizzer that was R J E v Secretary to the Department of Justice [2008] VSCA 265. This post is concerned with the majority’s decision not to ‘apply’ the Charter when ruling on the meaning of this provision of Victoria’s Serious Sex Offenders Monitoring Act 2005 (SSOMA):

11(1) A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.

All three judges on the Court of Appeal overturned a previous decision from 2006 that held that likely didn’t mean ‘more probable than not’, instead holding that that’s exactly what it meant.

But Court of Appeal President Chris Maxwell and carpetbagger Mark Weinberg made those findings without reference to the Charter’s interpretation mandate:

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

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

In view of that conclusion, there is no occasion to consider further the question – debated at some length on the appeal – of the correct methodology to be applied where s 32(1) is applicable. While that is undoubtedly a question of real significance following the advent of the Charter, it is not appropriate that we decide that question when it is unnecessary to do so. The correct result is more likely to be arrived at in a case where the choice to be made is of practical consequence, that is, where the court is able to assess the different results which might be produced by the competing approaches.

This is a dodge and a highly controversial one on a number of levels.

First, the proposition that it’s better to hold off choosing between competing methodologies until they make a practical difference is debatable. Antipathy to this sort of thing is common amongst anti-‘activist’ judges (e.g. Dyson Heydon’s love letter to John Howard before his appointment to the High Court, not that he kept his word.) But this practice has previously been known by the friendlier term ‘obiter dicta’ and is part of a venerable tradition of legal development by the courts, on the basis that it is often worth getting the principles right before practical differences start to emerge, rather than long after. The mess that is Charter jurisprudence to date is testament for the benefits of a little ‘early’ guidance from above. Moreover, the claim that it’s better to make the decision in a case ‘where the court is able to assess the different results’ is itself a controversial one, suggesting that choices of methodology are inevitably ‘result-driven’. The alternative view is that such ‘hard cases make bad law’. Anyway, if Maxwell and Weinberg really believed in Heydon’s claptrap, then they wouldn’t have resolved a new meaning for ‘likely’ at all, as, according to them, RJE’s order was bad on any test. 

Second, despite their claim not to be choosing between the ‘competing approaches’, Maxwell & Weinberg’s judgment actually made a choice on one issue: their reasoning in this case clearly draws a distinction between ‘ordinary’ statutory interpretation and Charter statutory interpretation, with the latter playing a fall-back role, apparently only applying if there is a further ‘choice of meanings’ available. There’s four problems with that. One is whether or not this two-step approach is consistent with Parliament’s intention in creating a human rights culture, where (presumably) those rights are front-and-centre of the law-making involved in interpretation. Another is that their choice takes at least a step towards resolving the controversial Hansen debate (that the court claimed it wasn’t resolving), as the majority Hansen view depends on drawing a distinction between ordinary and Charter principles of interpretation.   A third  is that it’s not clear that the ‘choice of meanings’ has been fully explored (as the Briginshaw principle certainly contemplates a beefed-up ‘balance of probabilities’ standard when big issues are at stake.) And a fourth is that the judges completely failed to consider the (admittedly controversial) possibility that the Charter might require a lower threshold than ‘more likely than not’,  because of the competing rights of potential victims of child sexual offenders. (More on that in another post.) 

Third, there’s the (sole) issue that divided the Court: whether it’s proper for Victoria to differ from an authoritative ruling of the NSW Court of Appeal on an identical statutory formulation in a similar (but not identical) scheme, simply because it thinks that view is wrong. Continue reading

The Charter vs One-Man Conspiracies

One of the flurry of Charter passing mentions this week is R v Dickson [2008] VSCA 271, an appeal by a former AFP officer who was convicted of posing as a customs officer to facilitate the theft of some counterfeit cigarettes being held in a Port Melbourne warehouse. He was convicted of conspiring with three other people: Holmes (then a Victoria Police officer), Purdy (an associate of Holmes’s) and Wang (the fence, turned Crown witness.) But there were problems with each of these alleged co-conspirators. At Dickson’s first trial (which was joint with Holmes and Purdy), the trial judge directed an acquittal of the latter two. Because the jury had to be discharged, Dickson was tried again on his own, and it was only then that the prosecution joined Wang as a co-conspirator (arguing that, given his guilty plea, including his role in the original joint trial would have been too confusing for the jury.

The theft occurred in January 2004 and Dickson’s first trial ended in mid-2006. However, it was not until late 2007 that the new presentment against Dickson was filed. Moreover, the prosecution stuffed that one up and they had to have another go in early 2008. These events later events all happened after the Charter s. 49(2) cut-off date of 1/1/7 (and the final presentment occurred after the Charter s. 49(3) cut-off date of 1/1/8.) The convicted Dickson appealed on numerous grounds, including complaints against the presentment and the conduct of the trial, as well as an (apparently vague) complaint that ‘he did not receive a fair trial within the meaning of’ the Charter. The Court of Appeal refused leave and had this to say about the Charter ground:

Counsel for the Crown did not dispute that the filing of the ‘new’ presentment amounted to ‘the commencement of proceedings’ within the meaning of the Charter of Human Rights and Responsibilities Act 2006, and, against that background, the contention was advanced on behalf of the applicant that there has been a breach of s 25(2)(c) of the Charter and a failure to ensure that the applicant was ‘tried without unreasonable delay’. Therefore it was said, the verdict should not be permitted to stand.

Just pausing there, a couple of things to note. First, the Crown here seems to be conceding and the Court seems to be accepting, in what appears to be a first, that King J’s view on the meaning of ‘commenced’ in Charter s. 49(2) as meaning the laying of charges isn’t the end of the story. As I’ve speculated previously, if the charges are changed down the track, then arguably the proceedings re-commence, potentially bringing old criminal proceedings into the purview of the Charter. Certainly, the application of the Charter in this case would otherwise make no sense, as Dickson was originally charged (and, indeed, tried) well before 1/1/7. Second, Dickson’s ‘fair hearing’ complaint seems to have morphed into an ‘unreasonable delay’ complaint, which is a much narrower argument and was dispatched as follows by Vincent, Weinberg and Robson:

There is no need to expand upon the relationship between the rights accorded under the Charter and the principles which this Court must apply in performing its role under s 568 of the Crimes Act in addressing an application for leave to appeal against conviction. The present matter involved a number of alleged offenders and hearings and, having regard to the reasonable expectations that could be placed upon our criminal justice system, could not be assessed as inordinately protracted or resulting in the unreasonable or unjustified delay of the hearing at which the applicant was convicted. Addressed by reference to the function of this Court under s 568, there is certainly nothing that could give rise to any reasonable concern that the lapse of time between the occurrence of the events in question and the time at which it was conducted or by reason of some form of forensic disadvantage that the applicant may have suffered. Indeed none was ever suggested by his counsel.

And there’s two more things to say about this. First, it’s far from clear that there’s ‘no need to expand upon the relationship between’ the Charter and Victoria’s statutory appeal provision:

568(1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal

To the contrary, the Charter’s interpretation mandate may have changed the meaning of that provision (and terms like ‘miscarriage of justice’) and, as well, the Charter’s conduct mandate may have changed what trial and pre-trial events amounted to a ‘wrong decision on any question of law’.

Second, in particular, the Court of Appeal’s assessment focuses only on the ‘reasonable expectations of the criminal justice system’ and the risk of ‘forensic disadvantage’. But that arguably gives short shrift the ‘minimum guarantee’ offered by Charter s. 25(2)(c), which may well cover broader concerns, such as the defendant’s entitlement to a system and processes that can resolve the question of his guilt of theft in under four years, absent exceptional difficulties. In particular, the major delay in this case was the prosecution’s charging of Holmes and Purdy and what proved to be an inadequate case, thus costing Dickson his chance to have the matter resolved in 2006. Dickson’s reasonable expectations and whether or not he suffered a forensic disadvantage are arguably beside the point, as the Charter may have changed the ‘function of this Court under s. 568’ beyond the confines of traditional appellate law.

Anyway, I’m a bit surprised that Dickson’s ‘fair hearing’ complaint ended up shrinking to a ‘reasonable delay’ complaint, as his other appeal grounds raised quite different human rights concerns. Continue reading

The Charter vs VGSO

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

One story involves an intra-University dispute:

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

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

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

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

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

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

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

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

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

So, who’s a public authority here?:

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

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

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

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

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

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

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

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

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

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

(c) avoid litigation, wherever possible,

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

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

But it’s not just the model litigant rules that VGSO is bound by. Continue reading

It wasn’t tomorrow!

Why do I make predictions? Here it is:

As we have said, our conclusion about the meaning of the word ‘likely’ in s 11(1) is arrived at by the application of ordinary principles of statutory interpretation, in particular the common law rule favouring that interpretation which least encroaches on individual freedom. That choice of meanings having been resolved, the interpretive task does not attract the operation of s 32(1) of the Charter, which provides: So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

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

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

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

Obviously, I’ll have more to say eventually…

The right to lawn bowls

Both of VCAT’s recent EOA exemption decisions were decided on the same day and both took the same inordinate time to appear on Austlii. Fortunately, the second decision, by VCAT Vice President Marilyn Harbison, has a much better Charter analysis, indicating, if nothing else, that there’s not a lot of equal protection against discrimination going on within VCAT.

The issue again is gender discrimination, this time in the world of elite lawn bowls. The origin of the exemption application was two earlier decisions of VCAT. The first ruled that lawn bowls, unlike Aussie Rules, didn’t fall within the EOA’s built-in exemption for gender discrimination in sport:

66(1) A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

This decision split the world of Victorian Lawn Bowls between those who thought that the decision had saved lawn bowls and those who thought it had killed it. Various small flurries were decided, with VCAT ruling that the Victorian Ladies Bowling Association had to admit men as members but that it was also allowed to run a one-off women’s event to honour a famous lady bowler. But then VCAT decided to grant a wholesale exemption to re-segregate the elite lawn bowls competitions, on the ground that Victoria’s mixed events didn’t mesh well with the largely segregated national and international lawn bowls world. In Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415, the issue was whether the exemption would be granted again and, of course, Harbison decided that it would.

In contrast to McKenzie’s ruling on the same day, Harbison considered both operative provisions. Her main discussion was of Charter s. 32, which is unsurprising because she was applying a wholly statutory power:

83(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption- (a) from any of the provisions of this Act in relation to- (i) a person or class of people; or (ii) an activity or class of activities…

In response to the applicants’ argument that the Charter wasn’t relevant because this section is ‘clear on its face’, Harbison ruled:

In my view that argument has no merit. In deciding this application, I must consider the Charter because s32 clearly tells me that in interpreting all statutory provisions (and I take that to mean whether they are ambiguous or clearly expressed), I must make sure that I do so in a way that is compatible with human rights. If I am wrong, and the charter only needs to be considered in the event that legislation is not clear, then it is my view that the Charter must be considered in any event because s83 is not clear. It is silent as to the circumstances in which an exemption may be made, and so I must seek the assistance of the Charter in interpreting the section.

Yes indeedy! That’s exactly right. 

Now, onto the next issue: how does the Charter assist? On this point, Harbison herself had the assistance of VEOHRC, who (as always) couldn’t afford to show up, but at least was able to send a letter:

It has been the Commission’s view that the Charter does require a modified approach. The issue as the Commission sees it, for exemption applications, is the impact of s7 of the Charter upon the scope of the discretion vested in the Tribunal under s83 of the Equal Opportunity Act, in the light of the need to revisit its interpretation in accordance with s32 of the Charter. In brief, it is the Commission’s position that s7 of the Charter now defines the parameters of s83 of the Equal Opportunity Act. It follows that the test to apply when exercising that discretion is to ask whether the proposed exemption is or is not a reasonable limitation on the right to equality, using the framework of considerations enunciated in s7. If that analysis identifies that a proposed exemption is not a reasonable limitation on the right to equality then the Commission view is that it should not be granted.

That’s not bad either, although some might see it controversial because it clearly follows the Hansen approach, reading s83 down only to the extent demanded by Charter s. 7(2). While I’ve expressed some doubts about Hansen in some contexts, this context shows why Hansen is necessary, at least some of the time. Given that s83 basically authorises a departure from one of the Charter’s equality rights, it simply can’t be read as wholly compatible with those same rights. So, the only sensible re-interpretation that can occur is to read it as requiring no more than Charter s7(2) requires. (Query whether this reading is ‘consistent with the purpose’ of s83. But who knows what the hell its purpose is?) Harbison backed VEOHRC, but paraphrased its approach as follows:

Looked at in the light of s32 of the Charter, section 83 requires me to consider the purpose of the Equal Opportunity Act, and not make an exemption unless I am sure that the proposed exemption is justified by the purpose of the Equal Opportunity Act, and that the granting of the exemption is compatible with human rights.

That’s a bit vague (and seems to go further than Hansen would), but Harbison’s later analysis basically makes it clear that she will apply her discretion according to Charter s. 7(2). Moreover, she clearly takes the view that the Charter changes the approach to s83, at least in some cases:

This principle might, however, make a great deal of difference to the provision of an exemption where there is no obvious goal underpinning the exemption of redressing disadvantage or discrimination. It will assume particular importance in cases where the result of granting the exemption will be that the exemption will prevent a person from exercising his or her human rights without some public interest benefit from the exemption. It may, for instance, make a difference in cases such as re Boeing Australia Pty Ltd & Ors (2007) VCAT 532.

Oooh. That reads to me as if she knows full well that McKenzie completely buggered up BAE. Harbison later notes that ‘Deputy President McKenzie did not consider herself bound by the Charter in deciding BAE’. ‘[C]onsider’, hey? 

Issue #3: what rights exactly are limited by s83 in general and the proposed exemption in particular?:

Section 7 of the Charter defines what human rights are to be applied in accordance with s32. It is not open to me to make up my own definition as to what is a human right. I must decide whether one or more of the human rights which appear in s7 are engaged by the proposed grant of the exemption. The rights in the Charter which appear to me to be engaged in this analysis are the right set out in section 8(2) to enjoy human rights without discrimination and the right set out in 8 (3) to the equal protection of the law without discrimination. The word “discrimination” is defined in the Charter to mean discrimination on the basis of an attribute set out in the Equal Opportunity Act 1995. Sex is one of the attributes in the Equal Opportunity Act on the basis of which discrimination is prohibited. In the context of this case, the right that I identify therefore is the right of every person to be able to play the sport of lawn bowls without being discriminated against by reason of his or her sex. This right is engaged by the proposed exemption because if I were to grant the exemption, a person of one gender would not be able to exercise his or her right to play bowls in relation to the events limited to the opposite gender for which the exemption is sought.

Snicker. Continue reading

The right to co-education

The trickle of VCAT decisions into Austlii has brought two new Charter decisions, both on the recurrent issue of exemptions to the Equal Opportunity Act. One received some press a few weeks back, with news that the Preshil, the Margaret Lyttle Memorial School, a private school in the middle of Melbourne’s private school belt, would be allowed to continue to discriminate against boys. It’s not at all clear to me why the judgment has taken three weeks to emerge. One consequence, though, is that its crummy Charter analysis hasn’t gotten the contemporaneous criticism it deserves.

Preshil’s application was for exemptions from the EOA’s bans on discrimination against boys in education, the provision of services, requesting information and advertising. Of course, such discrimination is familiar in private schools, due to this provision:

38. An educational authority that operates an educational institution or program wholly or mainly for students of a particular sex, race, religious belief, age or age group … may exclude- (a) people who are not of the particular sex, race, religious belief, age or age group…

But Preshil doesn’t qualify for this exemption, because isn’t a girl’s school, but rather a co-educational one. However, it is – or at least was – at risk of becoming more of a boys school, until it received an exemption from VCAT in 2005:

The material before me and Ms Millane’s affidavit sets out and compares the situation of gender balance at the school in May 2005 and August 2008. In 2005, the ratio of boys to girls was two to one or more at preparatory level, in grades 3, 4 and 5; in grade 6 (where there was one girl and 16 boys) and in years 7 and 10. In August 2008, boys and girls were at a ratio of or exceeding two to one in grade 6 and year 7, with ratios below but close to that figure in its age three nursery. In the other classes, the ratios are much closer and the gender balance, while not equal, does not show swamping. Preshil’s current waiting list has twenty boys and eight girls on it. In the last three years, the percentage of girls attending the school has increased, and the percentage of boys has declined slightly. The school attributes this improving gender balance to the operation of the exemption.

The exemption in particular seeks to offer scholarships and the like exclusively to girls and, in the classes with a 2-1 ratio, to stop taking boys altogether.

In Preshil, The Margaret Lyttle Memorial School (Anti-Discrimination Exemption) [2008] VCAT 241, VCAT Deputy President Cate McKenzie, who gave Preshil its exemption in 2005, gave it again in 2008:

There is possible discrimination here, but there is a significant public interest in granting the exemption. It promotes a coeducational choice at a school with a unique educational philosophy and environment. It prevents girls at the school being swamped in those classes where boys are in very great numbers, and so tries to ensure that boys and girls in all classes receive the same coeducational experience

‘Possible’ discrimination? What the hell is ‘possible’ about this? As a result of this exemption, a number of kids are going to miss out on Preshil’s unique educational philosophy simply because they have penises. Others will miss out on financial support for the same reason. It is discrimination (albeit discrimination that is routinely practiced by single sex schools.) 

McKenzie, readers might recall, both wrongly dodged and completely botched the Charter in granting a race discrimination  exemption to BAE Systems Australia a couple of months back. But, this time, she’s run out of (spurious) excuses and had to ‘apply’ the Charter:

I accept counsel’s submission that my conclusion is compatible with the Victorian Charter of Human Rights and Responsibilities. The school’s approach to coeducation is, in my view, consistent with a number rights in the Charter. For example, the school emphasises the individuality of the child and the freedom of thought, expression and belief. The exemption is aimed at fostering the school’s coeducational environment, and ensures that one sex is not disadvantaged relative to the other. To the extent that any human right in the Charter may be engaged, it is my view that the exemption represents a reasonable limit on that right in the terms set out in s7 of the Charter. The conditions to which the exemption is subject ensure that its operation is limited only to those situations where there is a substantial gender imbalance, and that it operates in the least restrictive way.

This is just gibberish. Where do I start? Continue reading