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.”
Professor George Williams argues: “When it comes to achieving the right to die, community support has yet to translate into votes on the floor of Parliament”. He notes that “the law forbids a doctor from acting on a request from a terminally ill patient to end their life… The best that the law offers such a person is to permit them to starve to death”, citing the WA case of Christian Rossiter. Euthanasia was legalised in the Northern Territory in 1996, but the Commonwealth used its constitutional power over the territories to repeal that law in 1997, by withdrawing the NT’s self-government over laws concerning euthanasia. A bill to legalise euthanasia was narrowly defeated in the Tasmanian parliament last year. In Victoria, Dr Rodney Syme has been defying the law in order to pressure the government to change the law, and an opinion poll suggests a majority of Victorians support legal change, but the Andrews Government has given no indication that it intends to act on the issue.
In 1988, two NSW teenagers were sentenced to life imprisonment for rape and murder. At the time, they could apply for release after 10 years. However, the NSW Government repeatedly changed the law to ensure they were “cemented in jail and were never to be released”, in the words of then Premier Bob Carr. The Human Rights Law Centre took their case to the United Nations Human Rights Committee, making a number of arguments about the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. Their three strongest arguments were: First, that “the imposition of a life sentence without the possibility of parole in respect of a juvenile offender is incompatible” with Article 10, paragraph 3, which states: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Second, that “the imposition of a life sentence [without parole] on a juvenile constitutes cruel, inhuman and/or degrading punishment” contrary to Article 7. And third, that sentencing the teenagers to an adult sentence without giving them an opportunity to show their rehabilitation was a breach of Article 24, which requires protection of children. The Committee agreed with these arguments at paragraph 7.7. The Australian Government now has 180 days to respond to the Committee’s findings. Daniel Webb of the HRLC argues that response needs to include amendment of the NSW sentencing law.
The High Court recently handed down its judgment on a constitutional challenge to Queensland’s anti-bikie legislation. The case upheld part of the laws, but declined to rule on other parts. A control order scheme aimed at members of declared organisations was found not to infringe the separation of powers between the executive and the judiciary, because it still required courts to consider guilt or innocence in the ordinary way. However, the most controversial parts of the Queensland laws—in particular the Vicious Lawless Association Disestablishment Act 2013 (Qld)—were not considered by the Court because the applicant lacked standing to bring the case. The concept of legal standing is designed to keep hypothetical cases out of the system, but it can prevent test cases being run. Dr Binoy Kampmark of the Rule of Law Institute is highly critical of this aspect of the decision: “Significant in this case is the ruling against the plaintiff’s standing, suggesting a vital blow to public interest and civil liberty litigation. … It is hard to see what Kuczborski could have done [to gain standing] short of actually committing an act in violation of the VLAD laws, and being convicted as a result. One can only appeal after the fact. … Such a ruling places any efforts to challenge legislation that overreaches into the spheres of public life under question.”
A NSW legal researcher is questioning whether Australian courtroom architecture is unfairly biased against the accused in criminal trials. In 2011, Professor David Tait wrote an article for the Chicago-Kent Law Review called Glass Cages in the Dock? Presenting the Defendant to the Jury, in which he considered the history of the dock—the area where the accused sits during a trial. In the US, the dock has been regarded by courts as inappropriate, in part because it may prejudice the jury by making the accused look guilty or even dangerous. In Australia, the dock has been maintained as a tradition inherited from England, but in 2007 a judge ruled that a perspex screen around the dock “materially diminish[ed] their right to the presumption of innocence” and ordered it be removed. However, in his article Tait observed there was “a lack of empirical evidence” to guide judges about how jurors would react to different dock arrangements. To solve this problem, Tait and his team at the University of Western Sydney set up an experiment—they ran the same mock trial before 100 juries: “The only difference in the cases, performed by actors, will be that he accused is either behind glass, in a traditional dock or at the bar table next to their lawyers.” The results of the experiment showed the accused’s seating arrangement may have a significant impact on the outcome of the case: “When the glass dock was used, 60 per cent of jurors delivered a ‘guilty’ verdict, compared to 47 per cent for the open dock and 36 per cent for the bar table.”
In its Tajjour v NSW judgment delivered yesterday, the High Court ruled on a challenge to section 93X of the Crimes Act 1900 (NSW), a guilt-by-association offence that bans “habitually consorting” with convicted criminals. The High Court upheld the law’s validity and rejected the plaintiffs’ three arguments. First, applying the Lange test, a majority of the Court accepted that s 93X burdens political communication, but said it is still valid because “it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime”. Second, the Court reiterated its previous rulings that there is no “free-standing” implied freedom of association in the Constitution—association is only protected to the extent that it is a form of political communication. Third, the Court unanimously held that freedom of association under the International Covenant on Civil and Political Rights could not restrict State Governments because it has not been ratified by Commonwealth legislation.
Researchers at the University of NSW will conduct a mock trial this week to investigate the practicality of allowing deaf people to serve as jurors with the assistance of Auslan interpreters in the court and during deliberations. Professor Sandra Hale noted that “other countries already have them”, and said the trial would “find out what impact having a deaf juror in the deliberation room and the trial will have on the rest of the participants”. The Australian deaf community has been lobbying and running test cases for the right to participate in jury service. In 2006, the NSW Law Reform Commission recommended that “people who are blind or deaf should be qualified to serve on juries, and not be prevented from doing so on the basis of that physical disability alone”; instead, a decision should be made on a case-by-case basis. The Victorian Law Reform Commission is currently conducting an inquiry into jury empanelment, but it observed that “Issues associated with the eligibility of [deaf] persons to serve on juries are beyond the scope of the Commission’s terms of reference.”
A High Court challenge to Australia’s policy of sending asylum seekers to be detained and processed in Papua New Guinea was unanimously rejected today. In Plaintiff S156/2013 v Minister for Immigration and Border Protection, The High Court ruled that the legislation was valid under the “aliens” power in s 51(xix) of the Constitution, adopting a broad interpretation of the word. It also ruled that the designation of PNG as a “regional processing country” was valid, because the Migration Act 1958 (Cth) was amended after the successful challenge to the so-called Malaysia Solution, giving the Minister much broader discretion.
In today’s Lee v The Queen judgment, the High Court unanimously ordered a retrial over drug and firearms charges, in an important decision upholding the privilege against self-incrimination. Two men had been forced to answer questions by the NSW Crime Commission under special powers that suspend the “right to silence”. The men were later charged by the DPP, and the prosecutor obtained a copy of the Crime Commission transcript, breaching a suppression order. The High Court ruled: “It is a … departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges.” Barrister Edward Greaves points out that the decision will force all investigative bodies with compulsory examination powers to ensure they keep their records out of the hands of prosecutors. The High Court said if leaks occurred, trials should only go ahead when “another prosecutor and other DPP personnel, not privy to the evidence, were engaged.”