AB v Western Australia [2011] HCA 42 (6 October 2011)

Summary

The High Court delivered a unanimous judgment affirming the right of transgender people to have their gender officially recognised after undergoing medical or surgical procedures, even if not all of their reproductive organs have been altered. The Court emphasised the purpose of the Gender Reassignment Act 2000 (WA) to alleviate suffering and discrimination transgender people face in society by providing legal recognition of their self-identification and perception of gender.

Facts

AB and AH were born as female but identified as male from an early age, and were diagnosed with gender identity disorder. At the time of hearing, AB was aged 31 and AH was 26. AB and AH had altered their gender characteristics through undergoing bilateral mastectomies and ongoing testosterone therapy. Both have the physical appearance of males and live their lives as men. However, they retain some female sexual organs as neither has undergone a hysterectomy or phalloplasty. Neither AB nor AH wish to undertake any further surgical procedures because they do not consider them necessary to their sense of male identity, and because of the risks involved.

The West Australian Gender Reassignment Board is empowered to issue a recognition certificate as conclusive evidence that a person has undergone a reassignment procedure and “is of the sex stated in the certificate”. The Board refused to issue AB and AH a recognition certificate affirming them as men because of their remaining female reproductive organs and the “adverse social and legal consequences” of issuing a recognition certificate given their capacity to bear children.

AB and AH successful appealed the Board’s decision before the State Administrative Tribunal, before the Tribunal’s decision was overturned by the Court of Appeal.

Decision

The majority in the Court of Appeal assessed “gender characteristics” against “accepted community standards and expectations”, to find that AB and AH would not be “identified” as male while they retained female reproductive organs. The term “identified” was taken as the extent to which a person has assumed the physical characteristics of the opposite sex through surgery, under the assumption that there is a point at which surgery fully renders a person’s transition to male or female.

The High Court held that reliance on “potential adverse social consequences” or “community standard and expectations” were deliberately not included in the Act as a matter of policy and cannot be artificially inserted to deny a recognition certificate. The Court found that the language of the Act revealed the parliamentary intention to use “social recognition” (influenced by physical characteristics being altered) as the relevant test, not the extent to which a person’s body is changed. Broadly speaking, the test is not whether a person has undertaken every surgical procedure available, but whether they have altered their gender characteristics “sufficiently” to be “identified” as the opposite sex. This requires consideration of a person’s physical characteristics (including appearance, behaviour and lifestyle) both in private and public, but does not require knowledge of a person’s bodily state or “remnant sexual organs”. This broader interpretation gives appropriate weight to the Act’s guiding principle; that a person’s sex and gender characteristics are not always unequivocally male or female, but may be ambiguous.

The Court emphasised that the purpose of legislation which protects of enforces human rights must be given particular significance and a “fair, large and liberal” interpretation. In this case, the Act sought to facilitate acceptance and participation of transgender people to live as their reassigned gender within society. The definition of “reassignment procedure” as a “medical or surgical procedure” supports the Court’s interpretation, suggesting that a medical procedure such as hormone therapy may be sufficient to issue a recognition certificate without surgery.

Relevance to the Victorian Charter

The High Court’s decision in AB v Western Australia arguably lifts the bar for interpretation and application of similar laws around Australia and may also be relevant to future applications of the Victorian Charter. Importantly, the decision stands as firm precedent of the acknowledgement that sex and gender may be ambiguous. Thus, flexible understandings are required to grapple with the way that sex and gender are often assumed as unequivocal, in order to adequately respect the rights of transgender people. The decision also stands as authority for “beneficial” legislation which promotes or empowers human rights to be given a broad, fair and liberal interpretation to achieve its human rights objectives, of particular relevance to section 32 of the Victorian Charter.

The decision can be found online at: http://www.gaylawnet.com/laws/cases/ABvStateofWesternAustrlia.pdf

Note: The HRLC recognises that the term “transgender” is contested, and that appropriate language is important when discussing a person’s strongly felt sense of gender. “Transgender” is used in a broad sense inclusive of “transsexual” people, in recognition that a number of people undergoing medical procedures may be affected by the High Court decision but may not identify as “transsexual”, and vice versa.

Lee Carnie is a volunteer at the Human Rights Law Centre.

Eatock v Bolt [2011] FCA 1103 (28 September 2011)

Summary

Federal Court judge Bromberg J recently held that Herald Sun opinion columnist Andrew Bolt and the Herald & Weekly Times had contravened the racial vilification provisions of the Racial Discrimination Act 1975 (Cth) in two articles published in 2009. Bromberg J highlighted that “[a]t the heart of any attempt to secure freedom from racial prejudice and intolerance is the protection of equality and the inherent dignity of all human beings.”

Facts

In 2009, Bolt published two articles – “It’s so hip to be black” and “White fellas in the black” – targeting a group of highly successful Aboriginal people as exemplifying the ‘trend’ of so-called ‘fair-skinned Aboriginal people’ choosing to identify as Aboriginal to gain access to personal and career-based benefits and entitlements, ahead of more deserving darker-skinned Aboriginal people. The articles emphasised the physical characteristics and biological descent of the named Aboriginal people, undermining their legitimacy to call themselves Aboriginal, instead referring to them as ‘political Aborigines’. In response, Aboriginal activist Pat Eatock and eight of the other Aboriginal people named in the articles commenced proceedings in the Federal Court, seeking an apology and injunction on re-publication.

Decision

On 28 September 2011, Bromberg J determined that the articles were reasonably like to offend, insult, humiliate and intimidate ‘fair-skinned’ Aboriginal people under section 18C of the Act. They implied that the fair-skinned Aboriginal people named were not genuinely Aboriginal, had chosen to falsely identify as Aboriginal, and that skin colour is an accurate indication of Aboriginal identity. Bromberg J emphasised that each of the Aboriginal people targeted by Bolt genuinely identifies as an Aboriginal person, and is entitled to do so. They did not ‘choose’ to be Aboriginal, and did not illegitimately or opportunistically use their Aboriginal identity for material gain. This was assessed according to the standards of a reasonable and objective fair-skinned Aboriginal person, without importing general community standards, because to do so would run the risk of reinforcing prevailing prejudice antithetical to the promotional purposes of the Act. Bromberg J also considered how the articles may affect younger and vulnerable Aboriginal people feeling as if they cannot fully identify as Aboriginal for fear of pressure, public disdain or loss of esteem.

Section 18D provides that reasonable and good faith public comments made in the public interest from being unlawful. Bromberg J found that the style, language, manner and errors within the articles prevented Bolt and HWT from claiming this exemption. While it is lawful to publish articles dealing with racial identification, including challenging the genuineness of the identification of a group of people, it is not lawful to do so in the manner in which Bolt wrote the articles in question. The articles contained multiple errors of material fact, distortions of the truth and inflammatory and provocative language. In this sense, the finding of unlawfulness was the same as would have been available under defamation law by virtue of the errors in research and reporting, contrary to journalistic guidelines.

On 19 October 2011, Bromberg J ordered the Herald Sun to publish a 500-word corrective notice next to Bolt’s column twice over the following 14 days. Re-publication of the articles was restricted to ‘historical or archival purposes’, and only where accompanied by the corrective notice. The orders were meant to redress the hurt of the Aboriginal people affected, restore the esteem and social standing lost because of the Articles, inform people about the wrongdoing of the articles and negate the dissemination of racial prejudice.

Relevance to the Victorian Charter

Whilst the decision does not involve application of the Victorian Charter, the case raises interesting questions around balancing the right to be free from racial discrimination against the right to freedom of expression. Issues of censorship, free speech, political correctness and the scope and constitutionality of Part IIA of the Act have also been canvassed in the extensive commentary on the decision.

Given the nature of much of the media reporting on the decision, an observer might be forgiven for concluding that the decision was somehow unprecedented or a departure from accepted legal principles. Arguably the judgment itself is not a radical or unexpected application of the Act. Also of note is the fact that the strategy employed by Bolt and HWT appears to have put him at a significant tactical disadvantage in regards to establishing a defence under s 18D (see para 367), which no doubt contributed to his ultimate failure. One hopes that the Federal Government will be able to bear this in mind and disregard the media hyperbole when grappling with these policy issues in the context of current reforms, namely, the review of federal anti-discrimination laws currently underway and the constitutional recognition of Aboriginal and Torres Strait Islander peoples.

Read a news item and summary of the judgment prepared by the Equal Rights Trust, an international NGO working to combat discrimination and promote equality as a fundamental human right.

The original decision can be found online at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html

The orders can be found online at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/1180.html

Lee Carnie is a volunteer and Anna Brown is Director of Advocacy and Strategic Litigation at the Human Rights Law Centre.

Aldridge v R [2011] ACTCA 20 (22 September 2011)

Summary

The ACT Court of Appeal has held that, by operation of s 11(2) of the Human Rights Act 2004 (ACT), the arrangements for care of children is a relevant factor to be taken into account in the grant of bail, sentencing, and the grant of bail pending appeal against sentence.

Facts

Edward Aldridge was sentenced on seven counts involving burglary and aggravated burglary to a term of imprisonment of three years and six months, with a non-parole period of two years. He lodged an appeal against sentence and applied for bail pending determination of that appeal. Due to a range of delays attributable to the prosecution, the court and Mr Aldridge, the appeal against sentence was scheduled to be heard just two months before expiration of the non-parole period.

In applying for bail pending appeal, Mr Aldridge relied, among other matters, on the fact that his partner had recently given birth to their second child, was suffering from post natal depression and that Mr Aldridge needed to support them.

Decision

The application was allowed and Mr Aldridge was granted bail.

Justice Refshauge reiterated that bail pending appeal against sentence should only be granted in special or exceptional circumstances (see also Sherd v The Queen [2011] ACTCA 17), but stated that there were a range of matters in the present case which, together, amounted to such circumstances. In particular, the Court noted that:

Mr Aldridge’s partner…has been sentenced to three months periodic detention. That leaves her new born and their other child, a two-year old, without proper care over the time she must be in detention. His partner has no close family to assist.

The proper arrangements for care of children is a relevant factor where, as here, the Human Rights Act 2004 (ACT) in s 11(2) mandates that “every child has the right to the protection needed by the child”. This right has been construed by the Constitutional Court of South Africa to be a relevant matter to be taken into account in sentencing. See S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18, as refined by S v The State [2011] ZACC 7.

The decision can be found online at: http://www.austlii.edu.au/au/cases/act/ACTCA/2011/20.html

Phil Lynch is Executive Director of the Human Rights Law Centre

Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

Summary

The High Court’s decision in Momcilovic v The Queen upholds the constitutional validity of the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, the six separate judgments provide varied guidance as to how the Charter should be applied in practice.

The ratio of the High Court’s decision in Momcilovic turns on the interaction between sections 5, 71AC and 73(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). With the exception of Heydon J, all members of the Court held that the phrase “possession for sale” (which forms part of the definition of “trafficking” in section 71AC of the Drugs Act) is a compound expression which does not attract the operation of the deeming provision in section 5 of the Drugs Act which has the effect of reversing the onus of proof. Because section 5 does not apply, the Court held that the trial judge had misdirected the jury as to the matters that the prosecution was required to prove and ordered a retrial.

French CJ was the only member of the Court who expressly relied on the Charter in reaching this conclusion, and even he noted that the common law principle of legality would give the same result in the absence of the Charter. As such, the Court’s more substantive discussion of the Charter in Momcilovic is strictly obiter, and could be altered or clarified in future High Court decisions involving the Charter.

Practical consequences for Charter interpretation

Because of the varied positions adopted by the different members of the Court in Momcilovic in relation to the operation of the Charter, the judgments do not provide a clear approach for Victorian courts to apply when interpreting legislation in accordance with the Charter. However, it appears from the various judgments that the following principles relevant to the interpretation of legislation in accordance with the Charter have the support of a majority of the Court:

Decisions from comparative jurisdictions (the United Kingdom, Canada, South Africa, Hong Kong and, to a lesser extent, New Zealand) are of limited relevance when interpreting the mechanical provisions of the Charter and the relationships between those provisions (supported by French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

• Section 7(2) of the Charter forms part of the definition of the rights set out in Part 2 of the Charter. That is, all Charter rights are subject to section 7(2) (supported by Gummow, Hayne, Heydon and Bell JJ).
• The word ‘compatibly’ has a consistent meaning across sections 28, 32 and 38 of the Charter (supported by Heydon and Bell JJ and, by implication from their reasoning more generally, Gummow and Hayne JJ).
• Section 32(1) of the Charter requires that statutory provisions be interpreted in a way which is compatible with human rights as identified and described in Part 2 of the Charter, including, where it has been engaged, section 7(2) (supported by Gummow, Hayne, Heydon and Bell JJ).
• Section 32(1) of the Charter does not require courts to depart from established understandings of the limits of statutory interpretation (supported by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

With the exception of Heydon J, all members of the Court held that sections 7(1) and 32(1) of the Charter are constitutionally valid. In doing so, the Court rejected any Ghaidan-based interpretation of the scope of section 32(1) and upheld the Court of Appeal’s decision that interpretation under section 32(1) reflects “what courts have traditionally done”.

Relying on the text and structure of the Charter, a majority of the Court held that interpretation of legislation in accordance with section 32(1) must operate with reference to rights as limited in accordance with section 7(2). Some members of the Court noted that this mirrors the approach adopted under sections 5 and 6 of the Bill of Rights Act 1990 (NZ).

Bell J was the only member of the Court to expressly consider the steps that should be followed when interpreting legislation in accordance with the Charter. Under Bell J’s approach, the first step is to identify the “literal or grammatical meaning” of the relevant provision without the aid of section 32(1). However, it is not clear whether the other members of the Court consider this step to be necessary. Gummow, Hayne and Heydon JJ’s judgments arguably envisage that statutory provisions will be interpreted with the aid of section 32(1) — albeit applied by reference to rights as limited in accordance with section 7(2) — without first identifying a separate “literal or grammatical meaning”.

Bell J was also the only member of the Court expressly to consider the role of evidence in relation to section 7(2). According to her Honour, “[c]onsideration of the purpose of the limitation, its nature and extent, and the question of less restrictive means reasonably available to achieve the purpose are matters that commonly will be evident from the legislation.” Given that a majority of the High Court disagreed with the Court of Appeal’s understanding of section 7(2), it is not clear if the Court of Appeal’s reasoning on the role of evidence in relation to section 7(2) remains authoritative.

Practical consequences for declarations of inconsistent interpretation

There was also substantial disagreement between the members of the Court in Momcilovic about the circumstances in which declarations of inconsistent interpretation under section 36 of the Charter could be made or reviewed. Gummow, Hayne and Heydon JJ each held that sections 33, 36 and 37 of the Charter were constitutionally invalid, on the basis that section 36 impermissibly impairs the institutional integrity of the Supreme Court of Victoria, and that the three sections are not severable from each other.

The majority of French CJ, Crennan, Kiefel and Bell JJ upheld the validity of section 36. It appears from the judgments that the following principles relevant to declarations of inconsistent interpretation have the support of a majority of the Court:

• The making of a declaration under section 36 involves the exercise of non-judicial power (supported by French CJ, Gummow, Hayne, Heydon and Bell JJ).
• The making of a declaration under section 36 does not impermissibly impair the institutional integrity of the Supreme Court of Victoria (supported by French CJ, Crennan, Kiefel and Bell JJ).
• The “consistency” analysis conducted by the Supreme Court of Victoria under section 36 is separate from the “compatibility” analysis conducted under section 7(2) (and, by extension, section 32(1)). Section 7(2) is not relevant when determining whether a statutory provision can be interpreted “consistently” with a human right (although it may inform the circumstances in which the Supreme Court exercises its discretion to make a declaration) (supported by French CJ, Crennan, Kiefel and Bell JJ).
• The Supreme Court of Victoria should exercise its discretion to make a declaration under section 36 with caution. It should not make a declaration where:
  • the inconsistency is reasonably justifiable under section 7(2) (supported by French CJ and Bell J); or
  • making the declaration would risk impairing the institutional integrity of the Court (for example, in a criminal matter where the Court would effectively be required to declare that a person’s Charter rights had been violated, but at the same time uphold a conviction) (supported by Crennan and Kiefel JJ).

It is not clear whether the French/Crennan/Kiefel/Bell majority’s approach to the interaction between 7(2) and section 36 is entirely consistent with the Gummow/Hayne/Heydon/Bell majority’s approach to the interaction between section 7(2) and section 32(1). If, as Gummow, Hayne and Heydon JJ held, section 7(2) informs the definition of the various Charter rights, then it is difficult to see how it can be separated from the Charter rights when applying the “consistency” analysis required by section 36. It is not clear whether this apparent inconsistency will have any practical effect on the application of the Charter.

Another inconsistency arises in relation to the question of the reviewability of declarations of inconsistent interpretation made under section 36. As a majority of the Court held either that the declaration made by the Court of Appeal was invalid, or was valid but should not have been made, the declaration was set aside. However, if we accept the conclusion of the French/Crennan/Kiefel/Bell majority that section 36 is valid, and we accept the conclusion of the French/Gummow/Hayne/Heydon/Bell majority that section 36 involves the exercise of non-judicial power, then it follows that declarations made under section 36 should not be reviewable by the High Court, as they are not judgments, decrees, orders or sentences of the Supreme Court of Victoria falling within the High Court’s appellate jurisdiction under section 73 of the Constitution.

Section 109 inconsistency

With the exception of Hayne J, all members of the Court rejected the argument that sections 5 and 71AC of the Drugs Act are inconsistent with sections 13.1, 13.2 and 302.4 of the Commonwealth Criminal Code and therefore inoperative under section 109 of the Constitution.

The decision is at http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html.

Mark Hosking is a lawyer with Allens Arthur Robinson. Allens acted for the Human Rights Law Centre which appeared as amicus curiae in both the Court of Appeal and the High Court.

R v Kara Lesley Mills [2011] ACTSC 109 (1 July 2011)

Summary

In R v Kara Lesley Mills [2011] ACTSC 109 (R v Mills), the ACT Supreme Court delivered an important judgment concerning the right to a fair trial in criminal proceedings with a particular focus on circumstances that may constitute ‘unreasonable delay’. While the decision largely turned on the facts of the case, it serves as an important guide to what may amount to ‘unreasonable delay’ and the options available to the Court to provide a suitable remedy.

Facts

In October 2006, Kara Lesley Mills was charged with four offences including trafficking in a controlled drug, or alternatively, with possessing that drug, and receiving stolen property.

On 6 September 2007, following a committal hearing, Mills was committed to stand trial.

On 28 July 2008, the trial commenced but was later aborted after the informant revealed in evidence that DNA analysis of bags containing the drugs had been tested, contrary to the defence being told that they had not. That was highly relevant to Mills’s defence that the bags were left by someone else.

On 30 June 2009, a pre-arraignment conference was scheduled, but it was twice adjourned (because of counsel and witness unavailability) and when the matter returned on 11 August 2009, counsel for Mills indicated that representations were being made to the DPP regarding a permanent stay of proceedings because of delays. Consideration of that issue led to further adjournments.

On 29 October 2009, the next case conference was held and the matter was set down for trial on 7 March 2011. The stay application was foreshadowed and a timetable set. On 14 April 2010, the prosecution informed Mill’s solicitors that no DNA analysis of the seized drug packaging would be conducted. On 15 April 2010, the pre-trial application was part-heard but then not re-listed until 18 February 2011, apparently because of a death in the family of counsel for the prosecution.

On 7 March 2011, some 4 years after Mills was charged, the rest of the application was heard.

Argument

The sole argument from Mills was unreasonable delay, relying on section 22(1)(c) of the Human Rights Act 2004 (ACT) (Act) which states, “Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else: (c) to be tried without unreasonable delay“. In response, the prosecution seemingly acknowledged the delay, but argued that it would not be unfair to try Mills. The prosecution relied on House of Lords authority to argue that the appropriate response is not necessarily a permanent stay.

Decision

Higgins CJ granted a permanent stay in relation to charges 1, 2 and 3. Charge 4 had been earlier withdrawn by the prosecution.

Higgins CJ found that for a matter to take four years to come to trial after the decision to prosecute was unreasonable. He said, “The delay of two and a half years from the first trial, in a relatively simple case is…egregiously unreasonable, for whatever reason it might happen“. He then turned to what was the appropriate response.

His Honour relied on the decision in R v Upton [2005] ACTSC 52 in stating that the relevant test is one of proportionality. The relevant factors to be considered in His Honour’s view were – length of delay, reasons for delay, Mills’s timely assertion of the right in question, we well as prejudice. His Honour then addressed the particular circumstances of the case – the accused had raised the unfair delay point early, she had been put to the anxiety and expense of two trials, the prosecution had advanced no positive reasons for the delay and most importantly, had failed to explain why the drug bags had not been tested sooner. Interestingly, His Honour went on to critique the lack of resources available to the Courts, which he said may also have contributed to the delay – “the failure to provide adequate resources will, if unreasonable delay results, be a breach of human rights entitlements“.

All of those reasons combined were sufficient in His Honour’s view for the application to succeed and the permanent stay to be granted. The Court was of the view that that was the only appropriate response – an award of costs, relaxed bail conditions or credit for time served, were not.

Relevance to the Charter of Human Rights and Responsibilities Act 2006 (Vic)

The decision in Mills appears to be consistent with the trend in international and comparative jurisprudence to closely monitor delays in bringing matters to trial in criminal proceedings, particularly in circumstances where the prosecution is unable to sufficiently explain those delays.   In Victoria, delays in various trials have been recently questioned by judges and defence teams alike, particularly those with multiple defendants such as in alleged terrorist trials. Finally, the Court’s approach in R v Mills to section 22(1)(c) will certainly inform the interpretation of s 24 (right to fair hearing), s 25 (rights in criminal proceedings), in particular, s 25(2)(c) (right to be tried without unreasonable delay), of the Victorian Charter. Given national and international trends, it seems likely that Victorian courts would take a similar approach to that in Mills and look closely at delays on a case by case basis. Where an unreasonable delay is established, the Court could well apply any number of possible responses, including permanent stays in exceptional cases.

The decision can be found at: http://www.courts.act.gov.au/supreme/judgment/view/3981/title/r-v-mills

Daniel Creasey is Senior Associate & Pro Bono Coordinator (Melbourne) with DLA Piper

Hogan v Hinch [2011] HCA 4 (10 March 2011)

Summary

The High Court of Australia has rejected a constitutional challenge to the validity of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (repealed). That provision allowed a court to prohibit the publication of information that might enable the identification of persons convicted of sex offences and who were subject to post-custodial supervision orders. The High Court found that contravention of a suppression order under the Act required knowledge that the contravention order existed. This was found to be consistent with the obligation in s 15(3) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), requiring that restrictions on the right to freedom of expression be ‘reasonably necessary’ to respect the rights and reputation of other persons.

Facts

Derryn Hinch was charged with five counts of contravening suppression orders under s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (which was repealed with effect from 1 January 2010). That provision allowed a court to prohibit the publication of information that might enable the identification of persons convicted of sex offences, who were the subject of post-custodial extended supervision orders under the Act. It was alleged that Mr Hinch had committed these offences when he named the persons on his website and at a public rally in Melbourne.

Mr Hinch challenged the constitutional validity of s 42 on three grounds, resulting in the removal of these questions to the High Court. First, it was argued that s 42 impermissibly conferred upon the courts to which it applied a function which distorted their institutional integrity contrary to the implied requirements of Ch III of the Constitution. Secondly, s 42 was said to be contrary to an implication in Ch III of the Constitution that all state and federal courts must be open to the public and carry out their activities in public. Thirdly, it was submitted that the provision infringed the implied constitutional freedom of political communication.

Decision

The challenge to the validity of s 42 failed on all grounds. According to French CJ, s 42 neither offended against any implication derived from Ch III of the Constitution, nor infringed the implied freedom of political communication. The first step taken by French CJ was to find the correct construction of s 42. His Honour stated that this question must be resolved before validity can be determined. French CJ held that construction must begin with the words of the section, and requires reference to their ordinary meaning, their context, the purpose of the Act and that of the section itself. The principle of legality will favour a construction which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech. Section 32(1) of the Charter also imposes an interpretive requirement that, 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.

Relevant human rights set out in Part 2 of the Charter include the right to freedom of expression and the right to participate in public life. French CJ found that there are other rights which may be affected by a suppression order, including the right of children to be protected and the right of privacy. Absent clear words, the Parliament should not be taken to have conferred power on the courts to prohibit public dissemination of information in the public domain which is not derived from the proceedings in which the suppression order is made. This is required by the principle of legality and, in the opinion of French CJ, by s 32(1) of the Charter. As a general rule, s 42 did not authorise the court to prohibit publication of the fact that a person of a stated name has been convicted of a serious sexual offence and sentenced to a term of imprisonment (unless, from its context, that fact would reveal that the person had been a party to, or otherwise participated in a proceeding under the Act). French CJ stated that this interpretation of s 42 was consistent with the character of s 42(1)(c) as an ancillary provision, the context and purpose of the Act, the principle of legality and s 32 of the Charter. Consistency with s 32 in this context ‘will limit the scope of the power to the minimum interference with freedom of expression’.

In a joint judgment, all the remaining members of the Court considered the requirement for an exercise of power under s 42(1)(c) that the suppression order be ‘in the public interest’, finding that the question of what is in the public interest has ‘more than one dimension’. This additional dimension is provided by the Charter. The majority judgment stated that the phrase in s 42(3) ‘publish or cause to be published in contravention of an order’ indicates a requirement of knowledge of that order in contravention of which the publication is made. ‘Contravention’ was found to be used in the sense of disputation or denial rather than mere failure to comply with an unknown requirement. The majority judgment found that this interpretation of s 42(3) also better accommodates the provision in s 15(3) of the Charter respecting reasonably necessary restrictions upon the right to freedom of expression. Similarly, French CJ stated that the words ‘must not publish or cause to be published any material in contravention of an order’ do not displace the presumption that the alleged contravenor must know of the existence of the suppression order which he or she is said to be contravening. According to French CJ, ‘the proposition that the offence is a strict liability offence is singularly unattractive.

The Court ordered that a declaration should be made stating that s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) is not invalid on any of the grounds submitted to the Court. There remains in the Magistrates’ Court of Victoria so much of the cause as was not removed to the High Court.

The decision is at www.austlii.edu.au/au/cases/cth/HCA/2011/4.html.

Katherine Cooke is a lawyer with Allens Arthur Robinson

In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010)

The ACT Supreme Court has declared that a provision of the ACT Bail Act 1992 is inconsistent with the right to liberty under s 18 of the ACT Human Rights Act 2004 (‘HR Act’).  Section 9C of Bail Act requires those accused of murder, certain drug offences and ancillary offences, to show ‘exceptional circumstances’ before having a normal assessment for bail undertaken.  This was found to be inconsistent with the requirement in s 18 of the HR Act that a person awaiting trial not be detained in custody as a ‘general rule’.

Consistent with the dialogue model of the ACT HR Act, the law declared incompatible continues to operate in its original form, and power rests in the Legislative Assembly alone to amend it.

Facts

The applicant, Mr Islam, was arrested and charged with a range of offences including attempted murder.  Mr Islam applied for bail on 21 May 2010.  On 13 August 2010, Penfold J refused his application, and on 19 November issued her written decision.  The key issues in Her Honour’s decision were:

• Did exceptional circumstances exist demonstrating that Mr Islam’s application for bail should be considered under the normal bail tests?
• In determining this question, the Court had to consider the appropriate method of interpreting ACT legislation in accordance with ss 30 and 28 of the HR Act.
• If s 9C could not be interpreted consistently with the HR Act, should the Court issue a declaration of incompatibility?

Interventions

Where in a proceeding in the ACT Supreme Court a question arises involving the application of the HR Act, notice of the proceeding must be given to the Attorney-General and the Human Rights Commissioner. 

The Attorney-General has a right to intervene in such matters and he did so.  The Human Rights Commissioner must seek leave to intervene.  The Commissioner did not seek leave and instead made amicus curiae submissions.  The Commissioner’s submissions focused on the methodology that could be adopted by the Court in applying s 30 of the HR Act, and noted some of the human rights issues relevant to presumptions against bail.

Decision

Did exceptional circumstances exist?

Under s 9C of the ACT Bail Act, those charged with murder or certain serious drug offences must show ‘special or exceptional circumstances’ to have the usual considerations for bail under s 22 applied.

Whilst not making substantive submissions on the issue, Mr Islam tentatively raised the issue of delay in his trial.  Counsel for Mr Islam instead focussed his arguments on ‘re-interpretation’ of s 9C based the HR Act.

What is the appropriate method of applying the HR Act to ACT laws?

Section 30 of the HR Act requires legislation to be interpreted in a way that is compatible with human rights, so far as that interpretation is consistent with its purpose.

Her Honour noted that s 28 of the ACT HR Act was relevant to the question of interpretation.  That section states that limits may be placed on human rights, but only where such limits are ‘demonstrably justified in a free and democratic society’.  Consideration of whether a limit on human rights is justified involves assessing the purpose of the limitation, the relationship between the limitation and its purpose, and whether there is any less restrictive means reasonably available to achieve the limitation’s purpose.

International and Comparative Law

The Applicant sought to rely on the decision of the House of Lords in Ghaidan v Godin-Mendoza [2004] AC 557, which found that the UK equivalent of s 30 could be used to broaden the meaning of legislative provisions to ensure they are consistent with human rights, even where there is no ambiguity in their meaning.  The House of Lords noted that this would lead to ‘far-reaching’ impacts including ‘reading in’ many undrafted words.

Human Rights vs General Interpretation

In applying, and at times critiquing, elements of the Explanatory Statement to the ACT Human Rights Bill 2003, Her Honour found that the intention of the original s 30 was not to displace the legislative purpose test of interpretation found in s 139 of the Legislation Act.  Instead, it required that a human rights interpretation be subject to the obvious purpose of the legislation.

However, amendments to s 30 in 2008 removed the requirement that s 30 be applied subject to any other legislation.  The amendments included what Her Honour described as a ‘non-committal’ note to s 139 of the Legislation Act that s 30 of the HR Act was also ‘relevant to interpreting territory laws’.  This created ambiguity about how the two provisions should interact.

The Applicant argued that the Explanatory Statement to the 2008 amendments made explicit reference to Ghaidan, and therefore reflected the Legislative Assembly’s intention that it be the applicable authority in relation to the HR Act.

R v Fearnside

It was assumed by many prior to this case that the methodology adopted by Besanko J in the ACT Court of Appeal case R v Fearnside [2009] ACTCA 3 was the applicable authority for the application of s 30 to ACT law.  Justice Besanko did not explicitly endorse Ghaidan in Fearnside, however he did suggest s 30 would allow a court to interpret a law compatibly with human rights and consistent with its purpose, even if that interpretation would ‘not necessarily best achieve the purpose of that provision’.  Justice Besanko appeared to endorse a three-step approach proposed by counsel for the Attorney-General in that case:

(a)           Does the legislative provision in question ‘enliven’ a human right?

(b)           If yes to (a), does the provision contain a limitation which is reasonable within s 28 of the Human Rights Act?

(c)           If no to (b), how should the provision be interpreted in accordance with s 30 of the Human Rights Act?

The three-step process used in Fearnside has been applied or referred to positively in a number of subsequent ACT cases, including the Supreme Court case of Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48 and the ACT Civil and Administrative Tribunal case of Thomson v ACTPLA [2009] ACAT 38.

A new test for the ACT

Earlier this year, the Victorian Court of Appeal issued the first declaration of incompatibility under human rights legislation in Australia in R v Momcilovic [2010] VSCA 50. The Court in Momcilovic also declined to adopt Ghaidan but applied a more narrow approach than that in Fearnside.  The Court favoured applying  the interpretative provision (s 32(1) of the Victorian Charter) prior to applying the limitation provision (s 7(2)). 

Justice Penfold clarified that the comments of Besanko J in Fearnside were obiter and therefore not binding. Her Honour was swayed by the reasoning of the Victorian Court of Appeal in Momcilovic, particularly their characterisation of human rights interpretative provisions as having the same status as other applicable common law and statutory rules.  Her Honour also suggested that the Momcilovic test retained the primacy of the legislature to legislate, even if at times incompatibility with human rights.  Her Honour saw particular desirability in avoiding a justification inquiry under s 28, if by applying s 30 first, an interpretation both human rights-compatible and consistent with legislative purpose could be found.

Her Honour also responded to assertions from the Attorney-General that international law was not consistent with Momcilovic by identifying that there was support for that approach in the Canadian case of R v Oakes [1986] 1 SCR 103, the UK case of Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] GB 48 and the Hong Kong case of HKSAR v Lam Kwong Wai [2006] HKCFA 84.

She therefore broadly adopted the Momcilovic methodology.  However, Her Honour also found the construction of the relevant ACT provisions meant this methodology required further ‘gloss’ for the ACT context:

Step 1:     Identify all meanings of the provision that are available under ordinary principles of statutory interpretation and consistent with legislative purpose (the available meanings), including meanings generated by applying s 30 of the Human Rights Act but also meanings that would be available apart from s 30.

Step 2:     Set aside for the time being any available meaning that is not human rights-compatible under s 30.

Step 3:     Examine the remaining available meanings (that is, those that are human rights-compatible).

Step 3A: If there are one or more available meanings that are human rights-compatible, then that meaning, or the one of those meanings required by s 139 of the Legislation Act to be preferred, is adopted.

Step 3B: If there are no available meanings left (that is, there were no available meanings that were also human rights-compatible), re-instate the non-compatible available meanings set aside at Step 2.

Step 4:     Undertake an inquiry under s 28 of the Human Rights Act into whether any of those re-instated available meanings can be justified.

Step 4A: If only one meaning can be justified, it is adopted.

Step 4B: If two or more available meanings can be justified, then a choice must be made between them; in the ACT that choice would seem to be directed by s 139 in favour of the available meaning that best achieves the legislative purpose.  In the absence of such a provision the choice would be less constrained and might, for instance, include a consideration of which meaning had the least impact on relevant human rights.

Step 4C:If none of the available meanings can be justified, then the available meaning or one of the multiple available meanings (in the ACT chosen as required by s 139) is adopted, and a declaration of incompatibility may be considered.’

Was the Bail Act consistent with the HR Act?

Her Honour then proceeded to apply this test to s 9C of the Bail Act.  Her Honour found s 9C could be interpreted in two possible ways, based on general rules of statutory interpretation.  In applying s 18(5) of the HR Act to the two meanings, Her Honour found that as s 9C applied a general rule implementing a presumption against bail, it was not compatible with the requirement in s 18(5) that no one be detained in custody as a general rule.

In applying s 28 of the HR Act, she found that the limits of s 9C of the Bail Act were not proportional to the importance of its purpose.

Therefore, Her Honour found that neither of the available meanings of s 9C could be justified under s 28.  She found that the preferred meaning was the one which best achieved the apparent legislative purpose.  This was that s 9C sought to apply a threshold barrier to consideration of a bail application, being that the court must be satisfied of special or exceptional circumstances before considering a grant of bail.

Were there exceptional circumstances?

Her Honour was not able to find a special or exceptional circumstances affecting Mr Islam and she denied bail.

Declaration of Incompatibility

Having found that s 9C of the Bail Act could be not be interpreted consistently with the HR Act, Her Honour proceeded to issue a declaration of incompatibility under s 32 of that Act.  Pursuant to the HR Act, the legislation continues to operate in a manner consistent with its original purpose.

Under s 33 of the HR Act, the Attorney-General must present a copy of the declaration to the Legislative Assembly within 6 sitting days and must prepare a written response within 6 months after its presentation.  There is no requirement for the Legislative Assembly to amend the law, and it can remain in its original form.

Comments

Declarations of incompatibility have been described as ‘booby-prizes’, as parties can successfully argue human rights principles yet the law remain unchanged.  In the cases of both Islam and Momcilovic more time in prison was the outcome for both individuals.

The ACT Legislative Assembly next sits in December.  The ACT Government has not yet commented on whether it believes s 9C should remain in its current form.

Mr Islam is unlikely to appeal in the immediate future, as his trial began on 22 November 2010.

One clear benefit of this decision is that the two Australian human rights jurisdictions – the ACT and Victoria – now have generally consistent jurisprudence on the application of the operational provisions of their human rights laws.  However, the potential for human rights legislation to be used to ‘read in’ human rights to existing laws has diminished significantly, particularly when compared to the high watermark in the United Kingdom.  Both Australian jurisdictions have decades of legislation that pre-dates human rights legislation.  Therefore, without the ability for courts to re-interpret such laws broadly, more declarations are likely in the coming years.

The decision is at www.courts.act.gov.au/supreme/judgments/islam.htm.

Sean Costello is Human Rights & Discrimination Legal Policy Adviser with the ACT Human Rights Commission

R v AM [2010] ACTSC 149 (15 November 2010)

The ACT Supreme Court recently considered to what extent freedom of conscience under the ACT Human Rights Act 2004 (‘the HR Act’) influenced the interpretation of criminal offences.  An applicant sought to argue that her consciousness beliefs should provide her a defence to otherwise criminal conduct, and if not, that the Court should issue a declaration of incompatibility on the basis the relevant offence was inconsistent with the HR Act.

Facts

AM is charged with contravening a protection order under s 90 of the ACT Domestic Violence and Protection Orders Act 2008 (‘the DVPO Act’). She had previously been committed to stand trial.  That Act replaced the former Domestic Violence and Protection Orders Act 2001 following the judgment in SI bhnf CC v KS bhnf IS [2005] ACTSC 125, a decision which also raised issues under the ACT Human Rights Act 2004.

Earlier this year, AM’s parents each obtained Interim Domestic Violence Orders prohibiting AM from attending their residence until 24 March 2010.  AM was served with both orders on 15 February 2010.  On 16 February 2010 she attended their home and was arrested.

Prior to her trial, in these proceedings, AM sought two orders in relation to her criminal charges.  Firstly, that the Interim Domestic Violence and Protection Orders taken out by her parents be declared invalid, and, secondly, that she be allowed to defend herself according to the defence of lawful authority under ACT Criminal Code, using s 14 of the HR Act in her trial.  Alternatively, she sought a declaration that parts of the Criminal Code 2002 were inconsistent with the HR Act.

Decision

Striking out of Original Orders

Refshauge J quickly dismissed the first application on the basis that it was inappropriate to deal with such an order because the correct parties, being AM’s parents, were not before the Court.  His Honour also found that because the order was one of an inferior court, the challenge should have been on the basis of a jurisdictional error and not merely that the order should not have been issued.

What is Freedom of Conscience?

His Honour dealt with the interaction between the HR Act and DVPO Act in some detail.  Section 14 of the HR Act provides that everyone has the right to freedom of thought, conscience and religion.  This includes freedom to have or adopt a religion or belief, and the freedom to demonstrate his or her religion or belief in public or private.  Subsection 14 (2) states,

No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.’

His Honour noted that in several Australian cases freedom of conscience in relation to military service had been found to include conscientious objection, including Barwick CJ of the High Court in R v District Court of the Northern District of the State of Queensland; Ex parte Thompson (1968) 118 CLR 488:

A conscientious belief because it is a matter of conscience with its compulsive quality is durable though not unchangeable…The inclusion of non-combatant service in the exemption indicates the wide sweep which the conscientious objection must have.  Such a belief must be carefully distinguished from mere intellectual persuasion which by its very nature maybe transient.

In a human rights context, Refshauge J noted the potential difference between religious beliefs and conscience, citing the comments of Linden JA in the Canadian case of Roach v Canada (Minister for State of Multiculturalism and Citizenship) (1994) 113 DLR (4^th) 67.  Burton J of the UK Employment Appeals Tribunal (Grainger PLC v Nicholson [2009] UKEAT 0219/09/ZT) recently reviewed the relevant UK authorities, and suggested that in order to be recognised,

(i) The belief must be genuinely held.

(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with fundamental rights of others.

In reviewing the authorities both locally and in other human rights jurisdictions, Refshauge J concluded.

There is a strong sense that freedom of conscience, unlike freedom of religion, is limited to the beliefs and mental processes of an individual and that it does not necessarily protect any action motivated by the conscience of the person.

Application to AM

His Honour had difficulty determining from her submissions what AM’s conscientious beliefs were, short of pacifism.  Whilst noting that the authorities recognised such a belief, it was also inconsistent with her actions in breaching a protection order.  At its highest, His Honour characterised her beliefs ‘a conscientious obligation to confront persons whom she believes have inflicted harm on her and to do so in a non-violent way.’  Even then, His Honour found such a belief would not be consistent with the definitions of conscience, as it seemed to lack the ‘serious, cohesion and importance that is necessary’.  Such a belief also seemed to conflict with her parents rights to privacy, security of person and perhaps freedom of association under the HR Act.

His Honour nonetheless also considered how freedom of conscience should interact with the criminal law using s 30 of the HR Act.  Section 30 of the HR Act requires legislation to be interpreted in a way that is compatible with human rights, so far as that interpretation is consistent with its purpose.  This decision predated that of R v Islam [2010] ACTSC 147, which appeared to lay out a new test for the application of s 30 to ACT laws.  His Honour therefore applied the decision of the ACT Court of Appeal in R v Fearnside (2009) 3 ACTLR 25. That test essentially requires that in applying the HR Act to ACT legislation, the court should consider whether the law infringes a human right, and if so, if that infringement is justified under s28 of the HR Act.

His Honour applied this test to s 90(2) of the DVPO Act 2008.  He found that even if AM’s beliefs were to constitute a conscientious belief, and therefore engage the protection of s 14 of the HR Act, the offence of breaching a protection order under s.90 of the DVPO Act would be justified.  His Honour stated,

It is clear to me that public safety and order are clearly purposes of Domestic Violence Orders and, as such, they are justified as restraints on the actions of others.  Indeed, there may be some obligation for the Territory to make such protections.

Even if AM had successfully argued that s 90 was an unjustified limitation on s 14 of the HR Act, a declaration of incompatibility may have been the only result and that would not have helped her.  Such declarations do not result in a change to the law, but rather oblige parliament to reconsider the law in question.  The Court applies in the law in its current, incompatible state.

Lawful Authority

AM also sought to rely on s 43 of the ACT Criminal Code, which provides that a person is not criminally responsible for an offence if the conduct required for the offence is justified or excused under a law.  She sought to argue that a law in this context should include the HR Act.  In finding that AM did not have the requisite conscientious belief under s 14 of the HR Act, His Honour refused this order.  He did note however that she might argue in her trial that her views were relevant to questions of the requisite fault elements of mens rea of the offence.

Comments

Whilst AM failed to prove that her beliefs met the requisite test of a conscientious  belief under the HR Act, His Honours decision provides some guidance as to how the courts in the ACT will interpret freedom of conscience.  The decision also seems to leave open the possibility that a person with a conscientious belief under the HR Act might be able to argue the defence of lawful authority under the Criminal Code.

The decision is at http://www.courts.act.gov.au/supreme/judgments/am.htm.

Sean Costello is Human Rights & Discrimination Legal Policy Adviser with the ACT Human Rights Commission

Canberra Fathers and Children Services Inc v Michael Watson [2010] ACAT 74 (29 October 2010)

The ACT Civil and Administrative Tribunal has found that an eviction from social housing that would result in homelessness is a breach of the right to be free from unlawful or arbitrary interference with the home.

Facts

Canberra Fathers & Children Services Inc (‘CANFaCS’) provides crisis accommodation and support for fathers and their children.  CANFaCS provided crisis accommodation to Mr Watson and his three sons (then aged 13, 15 and 17) under an occupancy agreement in June 2007.

Since being provided with this accommodation, Mr Watson had attempted to find alternate accommodation, but he was unable to obtain private rental accommodation due to his family situation and income level.  If he was evicted from the premises he and his family would again be homeless.  Mr Watson was employed full time and his sons were receiving Centrelink benefits.  Mr Watson had, with the assistance of CANFaCS, applied for public housing and had been assessed as eligible in mid 2007, but by late 2008 he was no longer eligible for early allocation of housing because the household income was above the threshold.  As a result, Mr Watson was on the standard waiting list, and would not receive an offer of housing for a year or more.  Largely because of this, Mr Watson remained in occupation of the premises and, in November 2009 CANFaCS wrote to Mr Watson requiring him to vacate the premises. This letter noted that:

• the premises are now needed for families experiencing housing difficulties;
• the decision to terminate was by way of exercising an option under the occupancy agreement; and
• there was a possibility of extending the notice period should Mr Watson not be able to find alternate accommodation.

CANFaCS applied to the ACT Civil and Administrative Tribunal for a termination and possession order.

Decision

On the threshold question of jurisdiction, ACAT is a public authority and is required to give proper consideration to any relevant human rights (see s 40 of the Human Rights Act 2004 (ACT)).  In this context, that obligation required ACAT to consider

the circumstances to determine whether any aspect of the conduct of CANFaCS, especially the giving of the notice to vacate, engages or enlivens any aspect of the human rights of Mr Watson, as set out in the Human Rights Act 2004.  If this is so, then the Tribunal will assess whether such conduct has adversely impacted on those rights, that is, whether CANFaCS, as a public authority, has acted in a way that is incompatible with a human right or failed to give proper consideration to a relevant human right in making a decision, and thus unlawfully.

ACAT found that the issuing of the notice was lawful under the relevant terms of the Residential Tenancies Act 1997 (ACT), so the question before it, was whether the issuing of the notice engaged and ‘adversely impacted’ Mr Watson’s human rights, including the right to the protection of the family and children (HRA s 11) and the right not to have one’s privacy, family, home or correspondence interfered with unlawfully or arbitrarily (HRA s 12).

In finding that these rights had been engaged, ACAT placed considerable weight on the evidence that Mr Watson and his family would likely become homeless, and considered that:

Disadvantaged people in need of social housing and at the risk of homelessness are among the most vulnerable in our society.  Their circumstances mean that their human rights are imperilled.  Where a public authority is making decisions about the housing of such people, the Human Rights Act requires the public authority to act in a manner that is compatible with human rights and to give proper consideration to human rights matters in making decisions.

ACAT then considered whether CANFaCS’s interference with the Watson family’s right to home had been ‘unlawful or arbitrary’.  In respect to the question of ‘unlawfulness’, ACAT noted that:

the question … is not answered by asserting lawfulness based on contract.  The Tribunal notes that 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.  Thus, the exercise of a contractual right can be unlawful.

ACAT primarily considered whether CANFaCS’s actions were ‘arbitrary’, following the Victorian decision of Director of Housing v Sudi [2010] VCAT 328 and noting that:

The issue of arbitrariness is directed to substance and not form. The protection is from any interference that is random and arbitrary.  Interference will not be arbitrary if it is governed by clear pre-existing rules and by procedures that are predictable and foreseeable by those to whom they are applied.

In finding that CANFaCS had acted arbitrarily, ACAT placed considerable weight on CANFACS’s ‘Procedure and Procedures Manual Evictions’, which set out the circumstances in which tenants would be evicted, noting that ‘It is recognised that families stay at CANFaCS because they have no other options.  Evictions are therefore used as a last resort’.  The circumstances in the current case were not contemplated by the policy document, and so ACAT held that the decision to terminate Mr Watson’s occupancy of the premises was not based on clear pre-existing rules nor was the procedure in reaching that decision transparent, predictable and foreseeable.  It was therefore arbitrary.

ACAT then turned to whether the protection from arbitrary interference with home or family was, or could be, subject to limitations.  ACAT noted that the RTA contains provisions that allow the provider of crisis accommodation who wishes to limit the right to protection from interference with a home, to inform the tenant of the limitation; and to allow exercise of the right to terminate only if certain criteria are followed: ‘Such a scheme by setting out clear rules and procedures avoid arbitrary action’.  Thus, limitations are allowable, but ACAT also noted that they may be desirable from a policy perspective, ‘to allow an eviction from crisis accommodation where there is a potential conflict of the rights and needs of persons in need of support from crisis accommodation providers’.  As ACAT noted, ‘Certainly a family cannot remain in crisis accommodation indefinitely and a crisis accommodation provider should have the ability to terminate an agreement in appropriate circumstances’.

However, CANFaCS chose note to enter into a residential tenancy agreement and outline the limitation, so none of the terms or information supplied to Mr Watson referred to such matters and no such limitation existed.

ACAT concluded that CANAFCS serving a notice to vacate on Mr Watson constituted an interference with the family unit and arbitrary interference with a home which was not subject to appropriate limitations, and was therefore unlawful.  As a result of this unlawful act, ACAT had no jurisdiction to consider the application for a termination and possession order.

Relevance to the Victorian Charter

On the threshold question of jurisdiction, the ACT legislation makes clear that the ACAT is a public authority in all circumstances, whereas the Victorian equivalent is not a public authority when acting in a judicial capacity.  This question of jurisdiction remains live, and the Victorian Court of Appeal’s forthcoming judgment in the Sudi appeal will grant greater clarity on the jurisdiction point.  Certainly, it is desirable that public authorities’ actions are reviewable where, as in this case, they fail to act in accordance with their policies, let alone their obligations under human rights statutes.

The clear views of ACAT on the definition of ‘arbitrary’, assisted by reference to international  materials, further supports an increasing number of Victorian cases that support the use of international jurisprudence in interpreting human rights laws.

As in the Sudi decision, this case has clearly found that conduct that is made unlawful by the conduct provisions of comparable human rights legislation renders the action of public authorities null.  However, the case also illustrates that public authorities discharge their responsibilities in implementing and following processes and procedures that consider human rights, notwithstanding that individuals’ rights may be limited or even breached.  This does not require rigid application of policy documents but requires genuine consideration of individual’s circumstances.  ACAT suggests a proper approach to balancing the competing rights and policy considerations, and many public authorities could take heed.

The decision is at www.austlii.edu.au/au/cases/act/ACAT/2010/74.html.

James Farrell is Manager/Principal Lawyer of the PILCH Homeless Persons’ Legal Clinic

Quinn v Overland [2010] FCA 799 (28 July 2010)

The Federal Court of Australia has found that there is a serious issue to be tried that s 20(3)(c) of the Public Administration Act 2004 (Vic) (‘the PA Act’) places a statutory duty on public sector employers to conform with ‘public sector employment principles’.  Although not directly relevant to this case, s 8(ca) of the PA Act defines public sector employment principles to include ‘employment processes that will ensure that… human rights as set out in the Charter of Human Rights and Responsibilities are upheld’.  This decision also supports the view that employment policies established for the purpose of s 8(ca) constitute statutory duties that must be upheld by public sector employers. 

Facts

Ms Quinn sought an injunction to prevent the respondents from continuing to suspend her from employment.  She was employed as a permanent officer of the Victorian Public Service as manager of the Drug and Alcohol Branch of the Victoria Police Forensic Services Centre.  In light of a report of the Victorian Ombudsman which (among other things) concluded that arrangements for dealing with the management of drug exhibits were ineffective, Ms Quinn was advised that she would be suspended with pay.  Over a period of seven months from the date of suspension on 10 December 2009, three different investigators were appointed by the respondents to investigate the conduct of Ms Quinn.  The findings of each investigator varied and eventually, on 14 July 2010, the original suspension of employment was replaced by a fresh suspension based on the findings of the third investigator.  This fresh suspension occurred following the interlocutory hearing but prior to judgment being delivered.  The respondents were granted leave to reopen the hearing.

Justice Bromberg had to consider whether there was a serious issue to be tried that ss 20(3)(c) and 8 of the PA Act placed statutory duties on public sector employers, creating corresponding private rights capable of being pursued by public sector employees.  In summary, s 20(3)(c) of the PA Act provides that, when exercising duties as an employer, a public service body Head must exercise a right, power or authority in conformity with the public sector employment principles.  At issue in the case was the public sector employment principle contained in s 8(b), which provides that employment processes must be established that will ensure that ‘public sector employees are treated fairly and reasonably’. 

Justice Bromberg had to consider whether it was arguable that a clause of a relevant certified agreement was applicable in the circumstances by virtue of it being established for the purpose of s 8, or it being otherwise arguably applicable pursuant to the obligation imposed by s 20(3)(c) read alone.  The relevant certified agreement could not be directly enforced via an injunction due to it being deemed a ‘transitional instrument’ under Fair Work laws.  The clause in question (clause 17.8) dealt with the circumstances in which an employee could be suspended from employment.  It was arguable that the second respondent had not complied with clause 17.8 (and other related clauses) in the circumstances. 

Decision

While Justice Bromberg stated that it was ‘neither appropriate nor necessary’ that he ‘reach a definitive view as to the statutory obligations imposed upon the second respondent by the PA Act’, his Honour was satisfied that there was a serious issue to be tried that ‘in making the decision to suspend Ms Quinn, the second respondent exercised its power under the PA Act’. 

His Honour held that it was arguable that s 20(3)(c) identified s 8 as containing the relevant public sector employment principles that the respondents were required to conform with as employer, including the duty to treat Ms Quinn fairly and reasonably.  His Honour found that treating Ms Quinn fairly and reasonably necessarily required at a minimum, that the respondents comply with the employment policy that incorporated clause 17.8 by reference.  His Honour found it arguable that s 20(3)(c) imposed this statutory duty independently of s 8.

His Honour also found it arguable that s 8, either operating alone or in combination with s 20(3), imposed an obligation on the respondents to comply with clause 17.8.  Because s 8 required the establishment of employment processes that would ‘ensure’ compliance with the principle identified (in this case, that public sector employees be treated fairly and reasonably), it was arguable that s 8 placed an obligation on public service body Heads to comply with those processes.  This meant that each process established for the purpose of making sure public sector employees were treated fairly and reasonably (including, in this case, the processes set out in clause 17.8), became a requirement of s 8 itself, rather than a process merely established pursuant to s 8.  As a result, it was arguable that a breach of clause 17.8 could constitute a breach of statutory duty either pursuant to s 8 operating alone or in conjunction with s 20(3). 

On the facts, it was found that it was seriously arguable that Ms Quinn’s suspension of employment had been invalid by reason of breach of a statutory duty, and after considering other relevant issues, his Honour granted the injunction to restrain the respondents from suspending Ms Quinn’s employment.

Human Rights Implications of the Decision

Although it was not relevant to the case, s 8(ca) defines public sector employment principles to include ‘employment processes that will ensure that… human rights as set out in the Charter of Rights and Responsibilities are upheld’.  The decision of Bromberg J indicates that ss 20(3)(c) and 8(ca) place statutory duties on public sector Heads, also creating corresponding rights capable of being pursued by public sector employees seeking relief against employment practices that breach their human rights contained the Charter.  

Further, if workplace processes are established by public sector Heads to ensure that Charter rights are upheld in the workplace, Bromberg J’s decision lends weight to the argument that those processes form part of the statutory duties and corresponding rights contained in sections 20(3)(c) and 8(ca) of the PA Act.

The decision is at www.austlii.edu.au/au/cases/cth/FCA/2010/799.html. 

Jacqui Bell is on secondment to the Human Rights Law Resource Centre from Blake Dawson