Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010)

This case concerned the death in custody of Anthony Daniel, a drug smuggler and user.  Mr Daniel’s widow and father brought a claim under arts 2 and 3 of the European Convention on Human Rights against Her Majesty’s Revenue and Customs, the UK’s customs and tax department.  The England and Wales Court of Appeal held that the ‘criminality’ defence – which makes a claim brought to secure or enforce the benefit of a criminal transaction non-justiciable – does not operate to prevent human rights claims under the European Convention.

Facts

Anthony Daniel, a drug smuggler and user, was stopped at Heathrow airport and traces of cocaine were detected on his person.  Unbeknownst to customs officers, Mr Daniel had one kilo of raw cocaine in 116 sealed packages in his digestive tract.  Mr Daniel was arrested, detained and taken to hospital, where an X-ray revealed the contents of his stomach.  Mr Daniel gave a no-comment interview and was subsequently charged and remanded in custody.  Whilst in custody, Mr Daniel ignored warnings from staff, doctors, his solicitors and his father that packets of cocaine in his system could cause him serious harm, and he refused all food and almost all fluids for a week.  On 18 February, after consuming some food and fluid, Mr Daniel demonstrated signs of acute cocaine poisoning and died soon after.  At a coronial inquest, the cause of Mr Daniel’s death was certified as acute cocaine toxicity and cocaine-related heart damage.

Mr Daniel’s widow, Ayesha Al Hassan-Daniel, and his father (the appellants), brought a claim under arts 2 and 3 of the European Convention, against Her Majesty’s Revenue and Customs (the respondent).  They submitted that Daniel’s life could have been saved with improved care and a better policy for handling such cases.  In its defence, the respondent submitted that: (i) claims based on criminal acts such as those committed by Mr Daniel are not justiciable; (ii) there was no failure to take adequate steps to comply with the European Convention; and (iii) even if there was such a failure, it did not cause Mr Daniel’s death.  The appellants appealed against the 29 October 2009 decision of Judge Cowell in the Central London County Court to strike out their claim as unarguable on its face or as bound to fail due to the criminality defence.  The issue on appeal was the applicability of this defence to a human rights claim.

Decision

The Court of Appeal upheld the appeal, concluding that the common law defence of ‘criminality’ – that a claim brought to secure or enforce the benefit of a criminal transaction should not be heard by the courts – does not operate to prevent a claim based on the European Convention.  The Court characterised the criminality defence as a ‘policy rather than a principle’, and described it as a ‘control on jurisdiction’ which serves to uphold the integrity of the courts, to deter misconduct and to prevent wrongdoers from benefiting from their wrongdoing.

The Court stressed that the real, ‘critical preliminary’ issue for determination in this case was that of causation, rather than criminality – whether deficiencies in the respondent’s management of the prison materially contributed to Mr Daniel’s death, or whether his death was caused by his own voluntary acts in ingesting the cocaine and attempting to keep it in his body.  However, as the respondent did not seek to strike out the claim on this basis, the Court merely commented in obiter that the appellants would be unlikely to succeed on the causation issue on the basis of the evidence before the Court.

The Court received a written submission from the human rights organisation Justice, which was granted permission to intervene in the appeal.  The submission contended that, for reasons of principle, European Court of Human Rights jurisprudence does not permit a victim’s criminality to bear on the question of whether a member state has breached its duties owed to the victim.  The basis of this argument is that a claim brought under the European Convention is made under statute, not at common law.  As the right invoked is a Convention right, it is for the victim to demonstrate that the state’s failure to uphold that right resulted in some recognised detriment or harm.  On this view, ‘human rights are not just for the virtuous’, and it is irrelevant that such detriment or harm may have been inflicted upon an individual with ‘severely tainted’ merits.

Article 2 of the European Convention provides that everyone’s right to life shall be protected by law, and that no one should be intentionally deprived of his or her life except upon conviction for a crime which provides for such a sentence.  Further, art 2 will not have been breached where deprivation of life results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence; or so as to effect a lawful arrest or prevent escape of a lawfully detained person; or in lawful action taken to subdue a riot.  Article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.  These articles are given domestic effect in the UK by the Human Rights Act 1998 (UK).

The Court found that the State had satisfied its obligation under art 2 to investigate any death which may have been caused by a breach of this provision through a three-week coroner’s inquest into Mr Daniel’s death.  The coroner recommended that a policy be developed whereby prisoners who are suspected of having ingested and internally concealed drugs consult an independent doctor, which occurred in Mr Daniel’s case.

The Court examined three decisions of the European Court in which victims who had engaged in unlawful activity successfully invoked arts 2, 3 and 6 of the European Convention in their claims against the state.  The Court emphasised that in each of the cases, neither the court nor the state suggested that the victim’s criminal conduct barred the claim; criminality was only relevant, if at all, to the issue of redress.  According to the Court, ‘perceptible and sound policy reasons’ existed for the absence of the criminality defence from human rights jurisprudence, and introducing the defence into a claim under the Human Rights Act 1998 (UK) would construct a barrier for UK citizens:

It is one thing to discountenance the manipulative use of a Community right for a purpose for which it was not meant; it is another to create a gateway to human rights which only the virtuous may enter.

The Court further held that the appellants had standing to bring the present action, as they satisfied the definition of ‘victim’ in s 7(1) of the Human Rights Act 1998 (UK), which is given an independent meaning under the European Convention by s 7(7), and can include close relatives of an individual whose rights under the Convention have allegedly been violated.

The Court thus allowed the appeal, emphasising that this merely enabled the action to proceed and expressing ‘grave doubts’ about the claim’s prospects of success on the merits.

Relevance to the Victorian Charter

If the criminality defence were invoked by the State of Victoria in a rights-based complaint pleaded under the Victorian Charter, the Victorian Supreme Court may adopt the approach taken by the Court in Al-Hassan Daniel and hold that an applicant’s criminal conduct is no bar to claims under the Charter.  Such an approach emphasises that human rights must be protected and upheld irrespective of a person’s criminal behaviour.

Sections 9 (right to life) and 10 (protection from torture and cruel, inhuman or degrading treatment) of the Victorian Charter are analogous to arts 2 and 3 of the European Convention.  The Court in Al-Hassan Daniel placed considerable emphasis upon European Court jurisprudence in interpreting the relevant Convention rights.  The absence of comparable jurisprudence in Victoria provides scope for the development of domestic principles to govern the relationship between criminal behaviour and human rights under the Victorian Charter.

The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/1443.html.

Georgina Dimopoulos is a lawyer with Allens Arthur Robinson

Stellato v The Ministry of Justice [2010] EWCA Civ 1435 (14 December 2010)

The England and Wales Court of Appeal recently considered the application of art 5.1(b) of the European Convention on Human Rights (the right to liberty) to the detention of a person released on license and subsequently on bail, who refused to comply with the license and bail conditions imposed on him.

In a unanimous decision, the Court held Mr Stellato’s detention was unlawful within the meaning of art 5.1(b) and that he was entitled to damages for wrongful imprisonment.

Facts

In 1998, Mr Stellato was sentenced to 10 years’ imprisonment.  In December 2005 he was released on licence.  Just prior to his release, Mr Stellato brought judicial review proceedings contending that his release should be unconditional on the grounds of a particular provision of the Criminal Justice Act 1991 (UK).  Once released, Mr Stellato breached the conditions of his license because he maintained he should have been released unconditionally.  The Home Secretary purported to revoke his license and he was returned to prison in January 2006.

Mr Stellato subsequently issued a claim for damages for false imprisonment and for the infringement of his rights under art 5 of the Convention against the Ministry of Justice (which was responsible for prisons) on the basis that his release on license was unlawful.

The claim was dismissed at first instance.  On 1 December 2006 the Court of Appeal overturned this decision, ordering that the detention was unlawful and Mr Stellato was entitled to immediate release.  However, this order was stayed for a period of 20 days to allow the Secretary of State time to appeal to the House of Lords.  Pending this application, the Court of Appeal released Mr Stellato on bail with conditions.

Once released, Mr Stellato breached his bail conditions on the basis he could not be on bail if he was not on license and there was no authority for his detention.  The Court of Appeal then ordered his arrest and detention for breach of bail conditions and, on 7 December 2006, Mr Stellato was again returned to prison.

On 28 February 2007, the House of Lords determined the substantive appeal, finding that the Ministry of Justice had not been entitled to impose licence conditions on Mr Stellato in December 2005 and ordering that Mr Stellato be released unconditionally.

The present matter concerned the payment of damages for Mr Stellato’s detention between 7 December 2006 and 28 February 2007.

Decision

On appeal in relation to damages, the critical issue was whether Mr Stellato’s detention, from 7 December 2006 to 28 February 2007 for breach of his bail conditions, was unlawful and in breach of Article 5.

Mr Stellato contended that the stay ordered by the Court of Appeal and continued by the House of Lords did not authorise his detention and neither did his breach of his bail conditions.

The Ministry of Justice contended the period of Mr Stellato’s detention was lawful since that detention was pursuant to the Court of Appeal’s orders, arrest warrant and revocation of bail.

Article 5 protects the right to liberty and security of person.  However, the right is subject to a number of exceptions, including art 5.1(b) which provides:

5.1 … No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;

Mr Stellato submitted none of the orders by either the Court of Appeal or the House of Lords were ‘lawful’ within the meaning of art 5.1(b).

The Court held that ‘the effect of the stay … was that there was no order of the Court requesting his release; it did not mean … (the public authority) was required or authorised to detain Mr Stellato in custody’.  In other words, although Mr Stelatto’s release ceased to be compulsory, his detention did not become compulsory.  Further, the Court considered that a grant of bail was a grant of liberty to a person who would otherwise be obtained (not an order for detention in and of itself).  Therefore, the legal authority for the detention was not the grant of bail or Mr Stellato’s subsequent breach of it, but rather, the authority for his detention itself.  If that original authority was not lawful (as had been determined in this case), the breach of any subsequent court orders made would not make detention as a result of that breach lawful.

The Ministry submitted that because Mr Stellato had refused to comply with his bail conditions, he had refused to comply with an ‘order of a court’ within the meaning of art 5.1(b).  However, the Court held that to support this proposition would be

… to attribute to a grant of bail an authority to detain the person granted bail when there is no underlying legal basis for his detention.  It is to treat a grant of bail as authority to detain, when in my judgment it is, as I have said, the opposite… A failure or refusal to comply with the conditions of bail, at least in civil proceedings, is not non-compliance with an order of a court for the purposes of Article 5.

Accordingly, Mr Stellato was entitled to damages for wrongful detention between December 2006 and February 2007.

Relevance to the Victorian Charter

Stellato turns on its own particular facts and the vagaries of UK law in relation to detention, release on licence and bail.  Nevertheless, the decision may have implications for Victorian prisoners given the similarities between art 5 of the European Convention and s 21 of the Victorian Charter.

In particular, Stellato confirms that it is a breach of the right to liberty if a person is detained for breach of bail conditions in circumstances in which there was no lawful authority for the original detention, even in circumstances where a court orders the detention for breach of bail.

Pursuant to s 39(3) of the Victorian Charter (and in contrast to the UK Human Rights Act 1998), persons are not entitled to damages for a breach of the Charter.  Accordingly, if in Victoria, Mr Stellato may have been required to pursue some remedy other than compensation.

The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/1435.html.

Zara Durnan is on secondment to the Human Rights Law Resource Centre from Lander & Rogers

Faulkner, R (on the application of) v Secretary of State for Justice the Parole Board [2010] EWCA Civ 1434 (14 December 2010)

The recent decision in Faulkner v Secretary of State for Justice provides guidance concerning the parole board system.  In Faulkner, the Court concluded that where a prisoner’s parole is unjustifiably delayed, they may be entitled to compensation under art 5(4) of the European Convention on Human Rights.  The decision may have ramifications for Victorian prisoners whose parole is ‘unjustifiably delayed’.

Facts

The key facts of Faulkner are as follows:

• Faulkner was sentenced to custody for life for the offence of causing grievous bodily harm with intent.  The minimum period was set at 2 years and 8.5 months.  Faulkner became eligible for parole on 18 April 2004.
• On 26 May 2005, the Parole Board did not direct his release, instead recommending that he be transferred to open conditions.  This recommendation was rejected.  A second recommendation to the same effect was made on 31 January 2007, but was again rejected.  Faulkner then became entitled to a hearing before the Board, the result of which would be known by January 2008.
• In order to achieve the hearing by January 2008, the ‘Lifer Review and Recall Section’ (‘LRRS’) of the prison had to send the Board ‘the note’ and a skeleton dossier, which would formally refer the case.  The oral hearing would not take place until about six months from the date of the receipt of ‘the note’.
• The skeleton dossier and ‘the note’ were sent in September 2007, four months later than they should have.  In turn, Faulkner’s case was listed for oral hearing in May 2008, five months late.  The full dossier was then not received until May 2008, eight months late.  All in all, the oral hearing did not take place until January 2009.
• On 23 January 2009, the Board directed Faulkner’s release from custody.

Decision at First Instance

Faulkner commenced proceedings against the Board seeking damages for an infringement of his rights under art 5(4) of the ECHR.  Faulkner’s primary argument was that his hearing, and thus his release, was unduly or unjustifiably delayed by a year.  In other words, but for the delay on the part of the Board, his hearing would have taken place in January 2008.

Justice Blair dismissed Faulkner’s claim, determining that a breach of art 5(4) would only occur if the detention had become ‘arbitrary’.  Blair J held that it would only become ‘arbitrary’ if the system broke down entirely and he deemed that this was not the case here.  Blair J held that even if there had been a breach of art 5(4), it was ‘not possible to draw the inference from the January 2009 decision that the claimant would have been released earlier’ and therefore Faulkner was not entitled to damages.

Faulkner appealed to the England & Wales Court of Appeal.

Decision

The COA allowed the appeal, which concerned two key issues:

• whether there had been a breach of art 5(4) as a result of the delays imposed on Faulkner; and
• whether Faulkner would have been released in January 2008, had his hearing gone ahead at the proper time.

The Secretary of State for Justice, argued that the review of the ‘lawfulness of Faulkner’s detention was regrettably delayed by reason of events that were unfortunate but in essence were specific to the facts of his individual case and did not involve anything approaching a breakdown of the system.’  The Secretary also argued that Faulkner was in a stronger position in January 2009 to be released than he would have been had the hearing taken place in 2008.

By contrast, Mr Faulkner, argued that when the Board report is read it is plain that the position would have been precisely the same in January 2008 had a review taken place at that time.  Faulkner also argued that Blair J was wrong in asking whether he would have been released earlier, rather than whether he lost the chance of earlier release.

Having considered the relevant authorities, Lord Justice Hooper agreed that damages may be payable for the loss of a real chance of release.  On the issue of whether Faulkner would have been released in January 2008, a number of reports were taken into account.  The reports all supported the release of Faulkner in January 2008.  Lord Justice Hooper concluded that the ‘unjustified delays in the case, for which the Secretary of State for Justice is responsible, prevented the appellant from having the lawfulness of his continued detention decided in accordance with Article 5(4)’.

Faulkner was therefore awarded damages to reflect the fact that, in breach of art 5(4), he ‘spent some 10 months in prison when he ought not to have done’.

Relevance to the Victorian Charter

The decision in Faulkner turned very much on the specific facts of that case.  Nonetheless, the decision may have implications for Parole Board hearings in Victorian given the close parallels between provisions of the ECHR and the Victorian Charter.

Article 5(4) of the ECHR is similar to s 21 of the Victorian Charter (the human right to liberty and security), which states that ‘(1) Every person has the right to liberty and security…(2) A person must not be subjected to arbitrary arrest or detention…(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law’.

Hence, it may possible for Victorian prisoners to invoke s 21 of the Victorian Charter where that prisoner’s detention becomes ‘unjustifiably delayed’ and remains in breach until his or her effective release from custody.  Determining what will amount to ‘arbitrary detention’ under s 21, and what constitutes an ‘unjustifiable delay’, will of course turn of the facts of each particular case.  But the decision in Faulkner does send a strong signal that unexplained delays by parole boards that result in prisoners being delayed for periods of time they should not have been, may constitute a breach of human rights.  It is worth noting, however, that pursuant to s 39(3) of the Charter, damages are not payable for a breach of human rights in Victoria.

The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/1434.html.

Daniel Creasey is Senior Associate & Pro Bono Coordinator and Aleco Lazaridis is a Summer Clerk with DLA Phillips Fox

Webster v R [2010] EWCA Crim 2819 (01 December 2010)

The recent decision of the England and Wales Court of Appeal in Webster v R provides guidance concerning:

• the interpretation of the right to a ‘Fair Hearing’ under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic);
• the interpretation of the right to be presumed innocent until proven guilty under s 25(1) of the Charter;
• the operation of the requirement that all statutory provisions be interpreted in a manner compatible with human rights under s 32(1) of the Charter; and
• when a right can be justifiably limited under s 7 of the Charter.

Facts

The applicant, Matthew Webster, was charged with corrupting a public official.  Webster sold educational equipment to local schools.  Webster offered Cambridge Country Council’s educational procurement officer ‘Christmas gifts’ for helping him throughout the year.  Gifts included a DVD player and £100.

Pursuant to s 2 of the Prevention of Corruption Act 1916 (‘PC Act’) gifts are deemed to be given corruptly, within the meaning of the Public Bodies Corrupt Practices Act 1989, unless the contrary is proven.

Webster appealed against the conviction.  It was held that the jury would not have found him guilty had the presumption of guilt not arisen on the facts.  The appeal proceeded on the ground that s 2 of the PC Act was contrary to the applicant’s right to a fair trial and that the presumption of innocence had not been applied as required by art 6 of the European Convention of Human Rights.

Decision

The Court adopted the following methodology in determining whether the statutory provision was incompatible with the Convention:

1.       Does the statute interfere with rights enunciated in the Convention?

2.       If so, does the statute pursue a legitimate objective?

3.       If so, are the means by which this purpose is pursued necessary, reasonable and proportionate?

4.       Where interference with the right is unnecessary, unreasonable or disproportionate, can the provision be read down so that the right is not infringed?

Inconsistency with the European Convention

The Court held that the presumption of innocence is not an absolute right; rather, it is something that is integral to the right to a fair trial.  The right is infringed where the defendant is found guilty unless he or she can disprove the prosecution’s accusation of guilt.

By presuming guilt in all situations where a gift is made to a public official, the Court held that s 2 of the PC Act clearly interfered with the applicant’s right to a fair trial and to the presumption of innocence.

Was infringement of the right to a fair trial justified?

The Court held that the Convention does not prohibit factual presumptions, but requires States to place reasonable limitations on them.  In determining whether a presumption was reasonable, the Court considered whether the defendant had an opportunity to rebut the presumption, whether the Court retained the power to assess the evidence, the importance of the issues at stake and whether it was ‘extremely difficult, if not impossible’ for the prosecution to prove its case in the absence of the presumption.

In ascertaining the importance of the issue at stake, the Court considered the legislative history of the provision.  The reversal of the presumption of innocence was introduced in order to combat the problem of the corruption of public officials during World War II and the limited State resources available to detect it.  The Court found that this justification was no longer necessary and therefore could not justify infringement of the right to a fair trial.

Citing the US Supreme Court decision in Leary v United States [1969] 23 L Ed 2d 57 at 82, the Court noted that a presumption of fact will only be justified where it can be said with ‘substantial assurance’ that it reasonably flows from the fact upon which it depends.  That any gift given to a person in their role as a public official was necessarily corrupt did not have this certainty.

Reading down the infringing provision

While the statutory language unambiguously intended to reverse the presumption of innocence, the Court nonetheless held that the provision could be read down so as not to infringe Webster’s rights.  The Court emphasised that interpretation in line with the Convention was the primary remedial element of the Human Rights Act 1998 (UK).

Relevance to the Victorian Charter

This decision provides important guidance when interpreting the Victorian Charter.

The decision is useful in outlining the situations in which the right to the presumption of innocence can be justifiably infringed under s 7.  The Court emphasised that a presumption of facts can only be relied upon where there is ‘substantial assurance’ that the fact exists on the evidence provided.  The decision also indicates which factors can be weighed in order to determine justification.  The inference from these categories is that the State requires strong justification to infringe the right to the presumption of innocence.

In R v Momcilovic [2010] VCSA 50, the Victorian Court of Appeal unanimously held that clear, cogent and persuasive evidence must be used to demonstrate any justification to infringe human rights.  The Court’s decision in Webster indicates that evidence such as legislative history can be used.

Webster differs from the Victorian position in that emphasis is placed upon the primacy of interpreting statutes in line with the Convention, even where interpretation contradicts the express language of the provision.  By contrast, as held in Momcilovic, the Victorian Charter does not create a ‘special’ overarching rule of statutory interpretation.

The decision is at www.bailii.org/ew/cases/EWCA/Crim/2010/2819.html.

Jessica Simson, Seasonal Clerk, Mallesons Stephen Jaques

Greens and MT v United Kingdom [2010] ECHR 1826 (23 November 2010)

The European Court of Human Rights recently considered the United Kingdom’s continued failure to amend legislation imposing a blanket ban on voting in national and European elections for convicted prisoners in detention in the UK.  The Court had considered the same issue five years earlier in Hirst v United Kingdom (No 2), but the UK Government had not taken steps to implement the judgment in that case.  In Greens and MT v United Kingdom, the Court applied its ‘pilot judgment’ procedure and gave the UK Government six months from the date the decision becomes final to amend its legislation and remove the blanket ban.

Facts

Prisoners have been prohibited from voting in elections in the UK since 1870.  This blanket ban is currently set out in s 3 of the Representation of the People Act 1983 (UK) (the RP Act), which provides that ‘[a] convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local election.’  Section 8 of the European Parliamentary Elections Act 2002 (UK) extends this prohibition to elections for the European Parliament.

Article 3 of Protocol No 1 to the European Convention on Human Rights states that ‘[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’

In 2005, in Hirst, the European Court held that the UK’s blanket ban on prisoners’ voting rights violated Article 3 of Protocol No 1 to the Convention.  In 2007, in Smith v Scott, the Scottish Registration Appeal Court considered Hirst and concluded that s 3 of the RP Act could not be read down in accordance with section 3(1) of the Human Rights Act 1998 (UK) in a way that would make it compatible with the Convention.  The Scottish Registration Appeal Court therefore made a declaration of incompatibility under s 4 of the HR Act in relation to s 3 of the RP Act.

In November 2010, despite formal urging from the Council of Europe’s Committee of Ministers in the lead-up to the 2009 European Parliament elections and the 2010 UK general election, the UK Government had not removed the blanket ban on prisoner’s voting rights.

The applicants in Greens and MT had been detained in prison at the time of the 2009 European election and the 2010 UK election, and had been refused enrolment on the electoral register in respect of both elections.  The applicants applied to the European Court, arguing that the UK had violated art 3.

Decision

Unsurprisingly, given that the same rights had been considered in relation to the same legislation in Hirst five years earlier, the Court concluded that s 3 of the RP Act violated art 3 of Protocol 1 to the Convention.

The more interesting aspect of the European Court’s decision in Greens and MT was its treatment of the UK Government’s continued failure to amend the RP Act.  Under art 46 of the Convention, all Council of Europe member states are obliged to implement appropriate measures to protect rights which the Court finds to have been violated.  In order to facilitate this process, the Court may adopt a ‘pilot judgment procedure’, allowing it to:

• identify the existence of structural problems underlying the violations at issue in a case;
• indicate specific measures or actions to be taken by the responsible state to remedy those violations; and
• resolve large numbers of individual cases arising from the same structural problems at a domestic level.

At the time that Greens and MT was decided, there were approximately 2500 applications before the European Court involving complaints about s 3 of the RP Act.  At any one time, there are approximately 70,000 serving prisoners in the UK — all of whom could potentially apply to the Court while the blanket ban on prisoner’s voting rights remains in force.  Given the potential volume of future applications, the Court noted that the UK Government’s continued failure to amend the RP Act was not just a contravention of its obligations under the Convention — it also represented a ‘threat to the future effectiveness of the Convention machinery’.

The Court did not consider it appropriate to recommend specific measures for the UK Government to take in relation to the violation of art 3, instead noting that:

The Court’s role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight.

However, while the Court did not consider it appropriate to specify the content of future legislation, it did set out a timetable for compliance — ordering the UK Government to introduce legislative proposals to amend s 3 of the RP Act within six months of the date on which the Court’s decision in Greens and MT became final.  In light of this deadline, the Court concluded that there was no justification for continuing to examine every application asserting that s 3 of the RP Act violated art 3 of Protocol 1 to the Convention.  Noting that the only effective remedy in any of those cases was the amendment of s 3 of the RP Act, the ECHR decided to:

• discontinue its examination of pending applications raising arguments similar to those in Hirst; and
• suspend the treatment of all applications not yet registered and all future applications raising such arguments.

Relevance to the Victorian Charter

Section 18 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) protects the right to vote and the right to participate in the conduct of public affairs.  However, following the High Court’s decision in Roach v Electoral Commissioner (2007) 233 CLR 162 that a blanket ban on prisoner’s voting rights is unconstitutional in Australia, it seems unlikely that any Australian jurisdiction would attempt to introduce a provision equivalent to s 3 of the RP Act.

The Charter contains no real equivalent to the European Court’s pilot judgment procedure.  Sections 33, 36 and 37 of the Charter allow the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and to require the relevant Minister to respond to that declaration.  However, the Minister is only required to prepare a written response to the declaration, and is not required to take any other action to remedy the inconsistency.  Further, a declaration of inconsistent interpretation does not affect the validity, operation or enforcement of the statutory provision in question.

It is not yet clear what approach the UK Government will take to amending s 3 of the RP Act.  Future decisions considering the adequacy of the UK Government’s amendments — both from the European Court and the UK courts (under the HR Act) — are likely to be relevant in Australia, particularly given that the High Court in Roach left open the possibility of restrictions on prisoner’s voting rights which did not amount to a blanket prohibition.

The decision is at www.bailii.org/eu/cases/ECHR/2010/1826.html.

Mark Hosking 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

Director of Housing v TK [2010] VCAT 1839 (16 November 2010)

A recent VCAT decision has shown that public housing authorities are developing a more thoughtful and engaged model of decision making that gives proper consideration to the human rights of vulnerable tenants.

Facts

The Director of Housing sought to evict a tenant, TK, on the basis of three separate instances of drug trafficking:

1. On 15 July 2009, a police operative met and purchased heroin from TK at the stairwell just outside rented premises.
2. On 7 August 2009, TK met a covert police operative at the door of his flat and after receiving $180 he handed the operative a silver foil containing heroin.
3. On 11 August 2009, TK met the covert police operative on the 5^th floor of the apartment building (where the rented premises were located) and purchased heroin.

On 19 August 2009, Victoria Police executed a search warrant at TK’s rented premises and the tenant was arrested, but no scales or drug paraphernalia were found.  On 9 February 2010 TK pleaded guilty to trafficking charges and was placed on a community based order for 18 months.

On 12 March 2010, the landlord served TK with a Notice to Vacate pursuant to s 250 of the Residential Tenancies Act 1997 alleging that the tenant used, or permitted the rented premises to be used for an illegal purpose – namely, the trafficking of heroin.

On 22 March 2010 the landlord applied to the Victorian Civil and Administrative Tribunal for possession of premises.

Arguments for the tenant

The application for a possession order was opposed by the tenant on the following grounds:

1. the landlord’s service of the Notice to Vacate and subsequent application to VCAT for a possession order breached the landlord’s obligations under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 and could not provide the basis for an application for possession; and
2. the landlord could not prove the grounds for service of the Notice to Vacate.

In considering this application the Deputy President declared in an interlocutory hearing that the decision of Justice Bell in Director of Housing v Sudi [2010] VCAT 328 would apply.

Justification by the landlord

During the hearing, employees of the landlord gave evidence as to its consideration of circumstances relating to the tenant.  NL (a team manager for the landlord) explained that she had only prepared a Notice to Vacate after conducting an interview with the tenant and considering his:

• right to home;
• long and successful tenancy;
• mental health issues; and
• language issues.

PA (a housing manager for the landlord responsible for managing the inner-city public housing program for around 12,500 properties) gave evidence that he had considered issues similar to those considered by NL.  PA also noted he had considered the duties of the landlord to provide quiet enjoyment and good amenity across the estate and the concerns of various individuals who had raised the detrimental impact of drugs trafficking.

VCAT found that PA had referred to the police summary, community based order and medical reports whilst also taking into account TK’s gambling problem and his admissions to drug trafficking.  PA was also aware that if evicted, it may be difficult for TK to comply with the terms of the CBO.

Decision

Section 38 of the Charter

Section 38(1) of the Charter is as follows:

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

The tenant submitted that the two limbs present in s38 (1) of the Charter were separate and distinct obligations that VCAT must consider independently.  The landlord was therefore:

1. prohibited from acting in a way that was incompatible with human rights; and
2. required to give proper consideration to TK’s human rights in making the relevant decisions.

As to the specific Charter rights engaged by the actions of the landlord, it was alleged that section 13(a) was engaged, which prohibits unlawful or arbitrary interference with the home.

Despite expressing reservations, the Tribunal elected to consider both limbs of the section for the sake of completeness.

Limb 1: Did the landlord act in a way that was incompatible with a human right?

The Deputy President was satisfied by the evidence that there had been no interference with the s 13(a) right because the interference was not unlawful or arbitrary:

• lawfulness: the Notice to Vacate was a ‘technically lawful application’ that fulfilled the statutory criteria; and
• arbitrariness: the Deputy President adopted the comments of Justice Kaye in WBM v Chief Commissioner of Police [2010] VSC 219 where arbitrary was held to denote an interference with the right which is ‘capricious and not based on any identifiable criterion or criteria.’  In this matter it was held that there was no evidence before VCAT to suggest that the landlord acted capriciously: the landlord’s approach evidenced method and order and adherence to the proper policies and protocols.

The Deputy President was also satisfied that the landlord had not acted incompatibly with TK’s rights because, if there was interference, it was justifiable in terms of s 7(2) of the Charter.

Limb 2: Did the landlord fail to give consideration to a relevant human right?

The Deputy President made comprehensive reference to the decision in Castles v Secretary to Department of Justice [2010] VSC 310 in discussing VCAT’s obligations under s 38, including that while giving proper consideration:

requires a decision-maker to more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker turned his or her mind to the possible impact of the decision on the person’s human rights and the implications thereof…and that the countervailing interests or obligations were identified.

In applying the decision of Castles to TK, VCAT found that the landlord ‘did more than merely invoke the charter like a mantra’ and had seriously turned its mind to the possible impact of the decision on TK’s human rights and countervailing interests.  VCAT noted:

• the landlord sought legal advice as to correct procedures to be followed;
• a request was made for TK to attend an interview;
• the landlord agreed to delay a decision to issue a Notice to Vacate;
• the landlord considered TK’s medical situation; and
• the landlord’s legal and policy area considered submissions from TK’s legal advisers.

The Deputy President was satisfied that the landlord gave proper consideration to TK’s rights and VCAT was therefore able to determine the application for possession order.

Possession Application: Were the premises used illegally?

After finding that the Notice to Vacate was not unlawful on Charter grounds, VCAT then considered whether the tenant had infringed s 250 of the RTA by his use of the premises.  Section 250 states:

A landlord may give a tenant notice to vacate rented premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act”

The Deputy President noted that the provisions of s 250 apply only to the rented premises and not common areas.  VCAT found that the rented premises were the scene of the commission of a crime but had not been used by the tenant for an illegal purpose.  The Deputy President stated:

… it is not sufficient that the premises are merely the scene of the commission of the crime.  There must be a deliberate use of the premises for the illegal purpose.  There must be some real connection between the use of the rented premises and the illegal activity alleged.  It is not sufficient that there be a passing connection to the rented premises… This interpretation is consistent with the important right to a home as articulated in s 13(a) of the Charter.

VCAT held that in order to succeed in the application for possession, the landlord must establish that TK used the rented premises for an illegal purpose.  It is not sufficient that the premises are merely the scene of the commission of the crime; there must be a deliberate use of the premises for an illegal purpose.

The application for possession was therefore dismissed.

Significance to the Application of the Charter

VCAT relied on the Sudi case to determine that it had jurisdiction, agreeing that VCAT should not and cannot entertain an application founded on illegality.  The Court of Appeal has reserved its decision in the appeal brought by the landlord in Sudi, and this decision may significantly impact the ability of affected persons in cases to assert and protect their human rights in cases such as these.

However, of greater significance is the evidence presented before VCAT relating to the landlord’s process in paying proper consideration to the tenant’s human rights.  Unlike previous reported VCAT cases, the Director of Housing led evidence of its processes and policies in ensuring that tenants’ rights are considered in decision-making processes.  This is significant, as it demonstrates that the Director is now engaging in constructive and thoughtful consideration of human rights in making decisions about vulnerable tenants.  This is a welcome departure from the opaque technical compliance evidenced in other cases, and demonstrates that the Charter is having a real impact in government decision making culture.

The decision is at http://www.austlii.edu.au/au/cases/vic/VCAT/2010/1839.html.

Chris Povey is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic and Petrea Dickinson was an HPLC intern

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

DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010)

The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement.  The two separate judgements, delivered simultaneously by Kyrou J, contain identical legal reasoning dealing with ss 49(1)(e), 55(1) and 55(9A) of the Road Safety Act 1986 (Vic).  The Court concluded that where police request a motorist to accompany them for the purpose of furnishing a sample of breath or blood, the motorist must be informed that they have to remain until that sample has been taken or until three hours after driving, whichever is sooner.

Facts

The key facts are as follows:

• In Piscopo, police intercepted a vehicle driven by Piscopo (who was disqualified at the time), required him to undergo a preliminary breath test which was returned positive and then asked him to accompany police to a station for another breath test.  Piscopo replied ‘nuh’ and after being asked why, said ‘cause you’re going to lock me up anyway’.  Piscopo was charged with two offences: driving a vehicle whilst disqualified (s 30(1)) and refusing to accompany police for the purpose of furnishing a sample of breath (s 49(1)(e)).  Piscopo pleaded guilty to charge 1 and not guilty to charge 2.  Magistrate Hardy dismissed charge 2.  In essence, Hardy M held that police had failed to establish all elements of an offence under s 49(1)(e) because Piscopo had not been informed that he would be required to remain at the station until he furnished a sample of breath or until three hours after the driving, whichever was sooner.
• In Rukandin, a vehicle driven by Rukandin mounted a kerb and collided with another vehicle.  Police arrived, requested Rukandin’s licence, who replied he did not have one.  Police required him to undergo a preliminary breath test, which was returned positive and police then asked him to accompany them to a station for another breath test.  Rukandin complied. Two tests were attempted but could not be completed.  Police then asked Rukandin to accompany them to a medical centre for a blood test.  Rukandin replied, ‘I go home’.  Police asked why he was refusing and Rukandin said, ‘I want to go home’.  Rukandin was charged with two offences: careless driving (s 65) and refusing to accompany police for the purpose of furnishing a sample of blood (s 49(1)(e)).  Rukandin pleaded guilty to charge 1 and not guilty to charge 2.  Magistrate Keil dismissed charge 2.  As in Piscopo, Keil M held that police had failed to establish all elements of an offence under s 49(1)(e) because Rukandin had not been informed that he would be required to remain at the medical centre until a sample of blood had been taken or until three hours after the driving, whichever was sooner.

The DPP appealed both matters to the Supreme Court of Victoria.

Decisions

The Supreme Court of Victoria dismissed both appeals.

The central issue for determination was the meaning of the expression ‘refused to comply with a requirement made under’ ss 55(1) or 55(9A) in s 49(1)(e) of the Act.

The DPP argued that a requirement for a motorist to accompany police to a place where a sample of breath or blood is to be taken was sufficient to support a charge under s 49(1)(e) if the motorist refused to comply.  By contrast, counsel for both Piscopo and Rukandin argued that, in order for a requirement under ss 55(1) or 55(9A) to support a charge, it must not only require the motorist to accompany police, but crucially, must also inform that motorist that he or she will be required to remain there until that sample of breath or blood is taken or until three hours after driving, which is sooner.

Justice Kyrou held that for the purposes of s 49(1)(e), ss 55(1) and 55(9A) set out two, not three, requirements: firstly, to furnish a sample of breath or to allow a registered medical practitioner or an approved health professional to take from a motorist a sample of blood (an ‘accompany’ requirement) and secondly, to accompany a police officer to a place where a sample of breath or blood can be taken and to remain there until the sample is taken or until three hours has elapsed since driving, whichever is sooner (a ‘remain’ component).  Justice Kyrou said, ‘a motorist who is required to accompany a police officer to a police station for the purpose of a sample of breath (or blood, as in Rukandin) without being told the maximum period for which or he or she will be required to remain at the police station for that purpose would not be in a position to make an informed choice’.  His Honour found that a requirement that does not inform a motorist of the ‘remain’ component, ‘is not a requirement made under s 55(1) (or 55(9A)) within the meaning of s49(1)(e) .  Kyrou J said that his interpretation was consistent with the Court’s decision in Uren v Neale [2009] VSC 267.

Consideration of the Charter

In both cases, counsel for Piscopo and Rukandin submitted that s 32 of the Charter (interpreting statutory provisions consistently with human rights) required ss 55(1) and 55(9A) of the Act to be interpreted in a way that is compatible with the human right to liberty and security (s 21 of the Charter).  Counsel for the DPP submitted that the human rights set out in s 21 of the Charter are not engaged by ss 55(1) or 55(9A) because neither sections confer powers of arrest or detention.  Counsel for Piscopo and Rukandin drew on the decision of the Supreme Court of Canada in R v Therens [1985] 1 SCR 613, where the Court there concluded that ‘there is…a detention…when a police officer assumes control over the movement of a person by a demand or direction which may have significant legal consequence’.  Justice Kyrou said he was unable to accept that definition and relied on previous authority of the Court to conclude that ss 55(1) or 55(9A) did not authorise detentions.  His Honour did, however, accept that compliance with those sections involved a deprivation of liberty.

Justice Kyrou said that his interpretation of s s55(1) or 55(9A) were correct and that, so interpreted, those sections were compatible with the human rights found in s 21 of the Charter: ‘that interpretation requires that a motorist be informed of the temporal limitation in s 55(1) and thereby ensures that any deprivation of liberty…is in accordance with the procedures that are set out in that section’.

Further, in Piscopo, counsel submitted that the requirement that was communicated to the defendant was unreasonable because police had failed to reassure Piscopo that he would not be ‘locked up’.  Justice Kyrou rejected that submission: ‘In my opinion, it would be absurd to apply the requirement of objective unreasonableness in the manner [suggested above].  It cannot be the case that a requirement that is made under s 55(1) will be invalid unless and until the police officer disabuses the individual of each and every irrational fear that he or she raises’.  Curiously, in delivering these comments, His Honour makes no reference to the Charter at all.

Finally, the decisions in Piscopo and Rukandin may result in a large number of current charges (brought under s 49(1)(e) of the Act) being withdrawn against motorists.

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/499.html.

Daniel Creasey is Senior Associate & Pro Bono Coordinator with DLA Phillips Fox

DPP v Ali & Anor (No 2) [2010] VSC 503 (10 November 2010)

The Supreme Court of Victoria (Hargrave J) recently considered the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to an application to forfeit a family home that had been used in connection with a criminal offence.

The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission both intervened to make submissions on the Charter issues.

Facts

Khodi Ali was the sole proprietor of a property in rural Victoria.  Mr Ali, his wife Dounia Ali, their three children and a child from Mr Ali’s prior marriage lived in a house on the property.  It was their family home.

In 2004, the family moved to Melbourne and lived with Mr Ali’s family.  Following this move, Mr Ali allowed three men to use the rural house and an adjacent garage for the purpose of manufacturing illegal drugs.  The Court found that Mr Ali had assisted in setting-up the drug manufacturing equipment and in making some physical alterations to the house and garage for that purpose.

Mr Ali and three other men were charged with various counts of conspiracy to traffick a drug of dependence.  Mr Ali was acquitted.  The three co-accused were convicted.  Shortly after Mr Ali’s acquittal, he and his family moved back to the property.

The Confiscation Act 1977 (Vic) permits forfeiture of property used in connection with the commission of serious offences, including drug trafficking.  The Director of Public Prosecutions (DPP) made an application for a forfeiture order for Mr Ali’s house.  This would deprive Mr Ali and his family of their home.

Submissions

The State argued that it could confiscate the property, sell it and forfeit the proceeds of sale under the Confiscation Act.  Mrs Ali resisted the forfeiture of the property on a number of grounds, arguing that:

• The relevant provision of the Act breached or limited certain human rights protected under the Charter and that the limit could not be justified.  Mrs Ali argued that the Court must therefore exercise its discretion to exclude the property from forfeiture on hardship grounds.
• In the alternative, Mrs Ali argued that the Court should exercise its discretion to either exclude the property from forfeiture on hardship grounds, or order payment to her of such portion of the sale proceeds of the property as is necessary to prevent hardship to her.
• Mrs Ali also argued that she is the beneficial owner of half of the property and sought to have that part of the property excluded from forfeiture.

The Victorian Equal Opportunity and Human Rights Commission intervened to make submissions to the Court about how it should exercise its discretion in s 38(2) of the Confiscation Act in accordance with the Charter, and in particular, Mrs Ali’s right to protection from arbitrary interference with one’s home (s 13), the right to protection of families and children (s 17), and the right to equality and freedom from discrimination (s 8).

It was submitted by Mrs Ali and the Commission that the hardship discretion under s 38(2) of the Confiscation Act is circumscribed by the relevant human rights and that, unless the making of a civil forfeiture order can be demonstrably justified under s 7(2) of the Charter, the Court must exclude the property from the operation of the civil forfeiture order which is mandated under s 38(1) of the Act.

Alternatively, Mrs Ali and the Commission contended that the Charter required the relevant human rights engaged in the case to be given significant weight in the exercise of the hardship discretion.  The State, through the Attorney-General, accepted that the relevant Charter rights must be afforded considerable weight in the exercise of the Court’s discretion.  However, it contested the submission that the Court must exercise its discretion to exclude the property from the operation of a civil forfeiture order unless the Court is satisfied that a civil forfeiture order is demonstrably justified under s 7(2) of the Charter.

Decision

The Court considered the principles in R v Momcilovic [2010] VSCA 50 and the rights not to have family or home arbitrarily interfered with, the entitlement of families to be protected by society and the State, and the right of a child to such protection as is necessary in his or her best interests by reason of being a child.

The Court found that the Confiscation Act is, by itself, incapable of breaching or limiting any human rights.  His Honour found that [at 41]:

If the Court was required to…exclude the property under s 38(2) unless forfeiture could be justified under s 7(2) of the Charter, that would be inconsistent with the express terms of s 38(1) and would, moreover, defeat its purpose…Section 38(2) remains a purely ameliorative provision according to its terms.  It does not limit any human right protected by the Charter.  In these circumstances, s 7(2) of the Charter has no relevance.

His Honour also noted [at 42]:

Further, the principal submission would have the effect of imposing an obligation on the Court to act in a way that is compatible with human rights.  The Charter does not impose this obligation on courts, only on public authorities.

The Court also found that:

• Mrs Ali had no beneficial interest in the property.  She did not establish a common intention through an express agreement, or conduct from which the necessary common intention could be inferred, as a matter of fact.  The Court also rejected the notion that the principles of a constructive trust applied in this case.  Accordingly, her application to exclude one-half of the property from the operation of the restraining order was dismissed.
• The Court ordered that the property be forfeited to the Minister.
• The Court found that there would be real hardship to the Ali family if the forfeiture order was effectuated and decided to exercise its discretion to provide partial relief against hardship.  The Court ordered that Mrs Ali be paid $125,000 out of the proceeds of the sale of the property.

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/503.html.

Kerin Leonard is Manager of the Legal Unit at the Victorian Equal Opportunity and Human Rights Commission