1×02: Idle Persons and Incorrigible Rogues

In this episode of Hearsay, I’ll dig in to the issue of homelessness, looking at how a media campaign can lead to new criminal laws, how we have criminalised poverty and homelessness through history, and how the City of Melbourne is empowered to create new crimes (even if the Lord Mayor doesn’t really understand that’s what he is proposing). Are we returning to the old days of locking up “idle persons” and “incorrigible rogues”? Continue reading “1×02: Idle Persons and Incorrigible Rogues”

1×01: Mr Trumble goes to Washington

In this episode of Hearsay, I’ll take a look at the international legal dispute that led to our Prime Minister being dubbed “Mr Trumble”. I’ll also talk about some of the other controversies surrounding Donald Trump’s fledgling presidency, and explain how they have parallels with issues in Australia’s legal system. Continue reading “1×01: Mr Trumble goes to Washington”

Corrections Victoria fails to bring prisoners to court

Victorian courts have sharply criticised Corrections Victoria for its failure to bring prisoners to court for hearings, but the agency continues to breach the rights of those in its custody.

The Herald Sun reported that Corrections Victoria has been fined 650 times since 2013 — with the total penalties approaching $500,000 — for holding people in custody rather than bringing them to their scheduled court appearances, including over $110,000 in fines in the first half of 2016.

Victoria Legal Aid said that 455 Magistrates’ Court matters were affected in the first seven weeks of 2016, with some prisoners being unable to apply for bail or missing assessments for community-based sentences.

In March, a magistrate told The Age in some cases it was more likely an accused person would attend court if they were released than if they remained in custody. “I’m releasing people — not high-risk — but I’m releasing them on bail because I can’t guarantee they’ll appear.”

The problem had not been resolved by August. After being told that a number of prisoners could not apply for bail as they had not been brought to court, Magistrate Timothy Walsh warned Corrections officers, “They can be brought in or they’ll be released on bail.”

The Victorian Government has been aware of the problem since 2014, when the Auditor-General reviewed the prisoner transport system and reported: “Increasing prisoner numbers within the justice system means that prisoners are not always transported when and where required.”

The Government has announced $14.7 million in funding to improve video link facilities at 53 courts, which it hopes will reduce congestion in the prisoner transport system. This investment supports the Justice Legislation (Evidence and Other Acts) Amendment Act 2016, which requires that most Magistrates’ Court hearings involving remand prisoners should be conducted by video link.

Section 21 of the Victorian Charter of Human Rights and Responsibilities requires that people must not be subjected to arbitrary detention, and that deprivation of their liberty must only be in accordance with procedures established by law.

High Court rules donation bans, caps compatible with free speech

The High Court last week made an important decision on the implied constitutional freedom of political communication. Jeff McCloy, a property developer, challenged the validity of NSW restrictions on political donations. The High Court’s ruling was important because it upheld the laws, clarified the test to be applied in “implied freedoms” cases, and confirmed that equality of participation in democracy was a “grand underlying principle” of the Constitution.

In its 2013 Unions NSW v New South Wales decision, the High Court ruled that a ban on all non-voters making political donations was an impermissible restriction of the implied freedom of political communication. While the government claimed it was aimed at eliminating corruption, the Court held there was no clear link between the challenged provisions and that purpose, and therefore the law failed the Lange test.

This prompted McCloy to challenge provisions in the Election Funding, Expenditure and Disclosures Act 1981 (NSW), which bans property developers from making political donations. Applying the logic of the precedent, he argued there was no reason to believe property developers were more likely to make corrupt donations than other people, therefore there was no rational connection to anti-corruption purposes.

However, a majority of the Court firmly rejected this argument, finding that “Property developers are sufficiently distinct to warrant specific regulation”, referring to “recent history” in NSW including a number of reports by the Independent Commission Against Corruption (ICAC). The law was therefore appropriately adapted to the legitimate purpose of preventing corruption or the appearance of corruption.

(The Court’s reliance on ICAC was interesting because the plaintiff’s illegal donations to Liberal Party MPs were uncovered through an ICAC investigation. In his testimony, McCloy said, “They all come to see me for money, I feel like a walking ATM, some days.”)

The Unions NSW case also struck down a combined cap on election spending by political parties and any affiliated industrial organisations. Although the law did not specify any particular target, the plaintiffs pointed out the Labor Party had maintained affiliation with trade unions for more than a century. Hayne J expressed concern this may have been the true target of the law, asking the NSW Government’s counsel, “Is there any other party to which 95G(6) presently has application? … Are we to ignore 100 years of history in this country, Mr Kirk? Are we to shut our eyes to what has been observed over the last decades?” The Court again held there was no rational link to an anti-corruption purpose, so the combined spending cap was unconstitutional.

McCloy sought to expand on this precedent, taking aim at the Act’s general cap on political donations. He argued “that the ability to pay money to secure access to a politician is itself an aspect of the freedom and therefore the subject of constitutional protection”. The High Court majority emphatically rejected this argument, holding that donation caps “are not only compatible with the system of representative government; they preserve and enhance it.”

They noted that in the absence of limits on donations, wealthy citizens may have a greater influence over our political system than others. The majority explicitly held that “Equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution.” Professor Graeme Orr argues this is the most significant aspect of the decision, because it balances the competing values of liberty and equality.

Another significant aspect of the decision was the Court’s attempt to clarify the second limb of the Lange test, which requires that a law is “appropriately adapted” to achieve its purpose. However, over a series of cases there was disagreement about how to judge this, and in particular whether this was a test of “proportionality”. In August this year, Sir Anthony Mason (who was Chief Justice from 1987-1995) gave a speech on Proportionality and its Use in Australian Constitutional Law, in which he identified three competing versions of the concept emerging from past High Court precedents.

In McCloy, the High Court majority confirmed that “proportionality analysis of some kind is part of the Lange test”, and clarified what this meant in the Australian context. They said it did not simply “involv[e] matters of impression, such as whether the legislative measures go too far, or not far enough”. Specifically, “there are at least three stages to a test of proportionality. … [T]hey are whether the statute is suitable, necessary, and adequate in its balance.” That final stage requires the Court to consider whether the burden on an implied Constitutional right outweighs the benefit of the law.

Critics of “judicial activism” argue that this allows unelected judges to interfere with the power of the Parliament to determine priorities and legislate accordingly. However, the High Court majority explicitly rejects this criticism: “The fact that a value judgment is involved does not entitle the courts to substitute their own assessment for that of the legislative decision-maker. … However, the courts have a duty to determine the limit of legislative power affecting constitutionally guaranteed freedoms, and assessments by courts of the public interest and benefit in a piece of legislation are commonplace. … To say that the courts are able to discern public benefits in legislation which has been passed is not to intrude upon the legislative function.”

Professor Anne Twomey suggests the decision may prompt legal change in jurisdictions around Australia:  “the High Court has opened the way for more comprehensive reform of political donations at the state and federal level. The excuse that it ‘might be unconstitutional’ no longer has legs.”

Charter Review calls for tougher enforcement of rights

The Victorian Attorney-General, Martin Pakula, has tabled in parliament the report of the 2015 Review of the Charter of Human Rights. The review was conducted by Michael Brett Young, and took into account over 100 public submissions from individuals and community groups.

The most significant recommendations relate to enforcement of the Charter. Brett Young says the current Charter is “flawed” because it “does not include an ability to enforce the standards that it sets”. He notes: “Providing for human rights without corresponding remedies sends mixed messages to the public sector and to the community about the importance of those rights.”

One proposal is to create a stand-alone cause of action for breaches of the Charter. At the moment, section 39 allows people to raise a breach of the Charter only as part of a separate legal proceeding. People who can’t “piggy-back” their human rights case on top of a separate claim are left out. The Review recommends giving legal standing to “any human being who claims a public authority has acted, or is proposing to act, incompatibly with their human rights.”

The Review also recommends expanding the remedies that VCAT and the courts can provide for breaches of the Charter. It recommends they “should have power to grant any relief or remedy that [they] considers[] just and appropriate, excluding the power to award damages”. The focus should be on practical remedies, such as injunctions, that would improve compliance with Charter rights.

However, the Review also recommended: “Making damages a remedy under the Charter should be considered only as an incremental step once the direct cause of action is established and there is experience of it in operation. In Chapter 8, I recommend a further review of the Charter. That review should consider the inclusion of damages as a remedy.”

The long report includes a total of 52 recommendations, including strengthening the parliamentary review of bills and making the process more transparent; allowing the Minister to revoke a local council by-law that is incompatible with human rights; and ensuring that allegations of serious human rights breaches by police can be independently investigated.

It also specifically recommends the inclusion of a new Charter right: “that every person born in Victoria has the right to a name and to be registered as soon as practicable after birth.” This was in response to a campaign by the Castan Centre for Human Rights to improve the rate of birth registration in Indigenous communities

The Victorian Government has not yet responded to the recommendations.

VLA launches Independent Mental Health Advocacy

Victoria Legal Aid has launched a new service called Independent Mental Health Advocacy (IMHA). The new body is funded by the Department of Health and Human Services, and will provide assistance to people in negotiating the mental health system.

The Mental Health Act 2014 (Vic) was passed last year, and introduced a human rights-based approach to mental health services in Victoria. One major reform was the establishment of the Mental Health Tribunal, which oversees the assessment of people’s mental health and make compulsory treatment orders where necessary. Its decisions are reviewable by VCAT’s Human Rights List.

The new IMHA service will help people who are are subject to a compulsory order, who might be subject to one in future, or who have recently been discharged. It does not provide medical or legal advice, but helps people understand their rights and assists them in communicating their views to medical practitioners and agencies.

Where specialist legal advice or representation is required, IMHA will refer people to appropriate services, including Victoria Legal Aid.

 

Online form simplifies family violence intervention order process

On ABC’s Law Report this week, staff at the Neighbourhood Justice Centre discuss its new online application process for family violence intervention orders.

The standard application form for an intervention order in the Magistrates’ Court is 12 pages long and requires some legal knowledge to complete correctly. The NJC’s Louise Bassett said, “I’ve got to point out, I’ve got a law degree and I’m in the system, and when I first encountered this I didn’t know what to tick on the front page.”

The new form is interactive, so it reduces confusion by only including questions that are relevant to the applicant. It guides the user through the process, and uses plain English and examples to explain the information that is requested. It also provides security advice and contact information for relevant community organisations.

Magistrate David Fanning says the information generated by the form is more useful in court: “Well, the information that it generates for me when I’m looking at the matter is that it highlights risks and high risk. So therefore, a busy court, as all courts are, having that there straight in front of me makes it readily available. … [I]t’s both a better [time] economy and it also brings to the forefront immediately the level of risk.”

The new form is currently available for residents of the City of Yarra for a six month trial period, after which it is expected to be expanded to other areas.

States given one more year to end Sex Discrimination

In 2013, the Commonwealth Sex Discrimination Act 1984 was amended to extend its protection to sexual orientation, gender identity, and intersex status. An exemption was granted to all Commonwealth, State and Territory laws for one year, so that they could be reviewed and amended to comply with the new protections. In 2014, the exemption for Commonwealth laws was removed after a review determined they complied. The deadline for State and Territory laws has been extended again until 31 July 2016. When the exemption ends, State and Territory laws that conflict with the new provisions of the Sex Discrimination Act will be invalid to the extent of the inconsistency, due to the operation of section 109 of the Constitution.

Ireland amends constitution to allow gay marriage; Australia debates conscience vote

Ireland has become the first country in the world to legalise same-sex marriage through a Constitutional referendum: “With the final ballots counted, the vote was 62 percent in favor of legalizing same-sex marriage, and 38 percent opposed. The turnout was large — more than 60 percent of the 3.2 million eligible voters cast ballots, and only one district out of 43 voted the measure down.”

All parties in the Oireachtas (Irish parliament) support same-sex marriage. However, Article 41 the Irish Constitution “guarantees to protect the Family”, and “pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”. Legal advice suggested this meant the common law definition of marriage “between one man and one woman” could not be altered. Though others disagreed, the government was reluctant to simply legislate and risk the law being declared invalid.

A Constitutional Convention was established, made up one-third by politicians and two-thirds by ordinary citizens, and it recommended amending the Constitution to require (not just allow) legislation to permit same-sex marriage. Ireland’s Constitution is entrenched by a referendum process requiring a simple majority of voters to approve amendments. The weekend’s proposal was to add a line to the document: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.” Following the successful vote, the Oireachtas will pass the Marriage Bill 2015, and it is expected that the change will be implemented before Christmas this year.

Tony Abbott responded by saying no referendum would be held in Australia, because “I don’t think anyone is suggesting the constitution needs to be changed in this respect”. Professor George Williams agrees, pointing out that in 2013 our High Court “described marriage in gender-neutral terms as being ‘a consensual union formed between natural persons in accordance with legally prescribed requirements'” and therefore same-sex marriage would be valid under section 51(xxi) of the Constitution.

In November, crossbench senator David Leyonhjelm introduced the Freedom to Marry Bill 2014 as a private member. The major parties are now debating internally how they should respond, and a big factor is whether the issue should be left to a conscience vote. The Coalition requires its MPs to vote against same-sex marriage, but senior members (along with Tony Abbott’s sister) are pushing for freedom to vote as they choose. Labor MPs are free to vote either way, but Deputy Leader Tanya Plibersek is pushing to require them to vote for marriage between “all adult couples irrespective of sex”. This conscience vote debate will ultimately determine whether the Freedom to Marry Bill is passed.

Victoria and Queensland debate statutory bills of rights

The Victorian Government’s Review of the Charter of Human Rights and Responsibilities Act 1996 (Vic) has begun with a call for public submissions. Attorney-General Martin Pakula said, “We’re inviting all Victorians to play a role in shaping how their fundamental rights are upheld by Government into the future.” The Review has published a background brief and discussion paper to frame the discussion, and has requested even brief submissions. Meanwhile, in Queensland, independent MP Peter Wellington offered support for Labor’s minority government on condition that it would investigate introducing a statutory bill of rights modelled on the Victorian Charter. Although he has subsequently said this is a low priority, civil libertarians have begun to agitate for change. James Cook University’s Kate Galloway says she has changed her mind and now supports a bill of rights, in part because Queensland’s unicameral parliament provides fewer checks and balances on the government of the day. It is unlikely a similar debate will occur at the national level; in 2009, Tony Abbott argued, “Bills of rights are left-wing tricks to allow judges to change society in ways a parliament would never dare.”