Charter of frights

Has fear of upsetting the public caused Victoria’s new human rights charter to lose its way? It’s a question with national implications, writes Jeremy Gans

10 November 2008



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Above: Simon Westaway (left) and Vince Colosimo in Underbelly, which couldn’t be broadcast in Victoria after a court order earlier this year. Under Victoria’s Charter of Human Rights, corporations (including most of the media) cannot use rights arguments in court actions.

THE TROUBLE STARTED in September 1997, a few weeks into Julia Elliot’s trial for killing and dismembering her ex-lover. She sacked her defence lawyer and hired a new one, who started claiming that the government had breached Elliot’s rights under Canada’s Charter of Rights and Freedoms. An initial complaint that the police had failed to disclose mysterious phone calls made to the victim’s house before his death quickly morphed into broader allegations of a cover-up. When the police’s case manager confessed to perverting justice in an unrelated case, the defence began to pursue a fully fledged conspiracy.

Justice Paul Cosgrove, an ex-Trudeau government minister and political appointee to the Ontario judiciary, later admitted that he was completely unprepared for these events. He not only allowed the defence to pursue its claims but openly fanned the flames, issuing hundreds of extraordinary orders to facilitate the inquiry. Elliot’s trial, which was meant to be over by the end of the year, sailed past one Christmas, and then another, and nearly a third, without any findings being made about her murder charge. The 150 Charter breaches Cosgrove ultimately found related not only to the investigative and prosecutorial process, but also to Ontario’s immigration system, funding for forensic sciences and halfway houses, and even the relationship between the government and telco Bell Canada.

Four years later, Ontario’s appeal court, observing that Canada’s rights Charter “has introduced additional complexity into our system,” found that nearly every decision Cosgrove made was wrong.

AUSTRALIANS will be hearing a lot of stories like these in the next six months. The federal government has promised a community consultation about how best to promote human rights in Australia. Similar consultations in the Australian Capital Territory and Victoria led quite quickly to the passage of landmark statutes, including the latter’s Charter of Human Rights and Responsibilities. A lot of the tales the anti-Charter squad will bandy about in response to the federal consultation will be either exaggerations or outright false. The Cosgrove case, alas, is neither.

But Canada’s Charter is very different from Victoria’s. The Canadian document is part of its 1982 Constitution, the product of prime minister Pierre Trudeau’s career-long ambition, televised deliberations of an expert committee, tortured negotiations with ten provinces and decisions by both the imperial parliament and Canada’s Supreme Court. By contrast, Victoria’s Charter is just a simple act of its local parliament, largely based on a relatively short report by a four-person committee comprising an academic, an ex-politician, a disability advocate and a basketballer. The law most resembles a forgotten piece of Canadian history, its Bill of Rights Act 1960, an ordinary statute that is now regarded as a misfire. By that reckoning, Victorian misadventures akin to Cosgrove’s are some thirty-five years in the future.

The ordinariness of Australian charters of rights (proposed and actual) is their political raison d’être. Australian parliamentarians would simply never enact a statute that would limit their capacity to pass whatever laws they want. Moreover, other powerful branches of the government, like the executive and the police, would never accept a broad human rights law without the promise that any problems the document causes for them can be fixed by a further statute. The Charter’s legal weakness has put its opponent on the back foot. They’re forced into Trojan horse arguments, such as the claim that Australia will follow Canada down the constitutional path (despite the many legal and political barriers to such a step in Australia) or that the courts will usurp parliament’s power on their own (as if other statutes and the judge-made common law don’t already provide the same opportunities for such treason).

But where does all this ordinariness leave Charter supporters? Nervous. Like Pierre Trudeau, Rob Hulls conceived of his Charter as the state attorney-general. Trudeau, though, achieved his goal a decade later as Canada’s most successful leader and sold his Charter as a transformation of his nation. Hulls, by contrast, shepherded in his Charter alongside twenty-four other law reforms packaged into a five-year plan for modernising Victoria’s justice system. His second-reading speech to parliament described the Charter as a “powerful tool” for “assessing” human rights and “educating” people about them. The state opposition voted against the statute as a pointless extravagance and added it to their list of matters to use to hassle the government. It’s doubtful that most Victorians even know that the Charter exists.

When Hull was questioned about the financial costs of the Charter (one of the opposition’s key criticisms) at an estimates hearing this June, he remarked: “I am somebody who is pretty passionate about the human rights charter and I want it to become a permanent part of the legal landscape in this state; I do not want it to become a political football. I hope that whoever is in power over the next ten years in Victoria will ensure that the human rights charter remains in this state.” The flipside of Hull’s “hope” is a chilling fear: that Victoria’s Charter, the first human rights document to be enacted by an Australian state, may also be the first to be repealed. Legally, all that would be required is another simple act of parliament.

Politically, repeal is much harder. Recent reforms to the Victoria’s voting system ensure that neither party will ever again control the upper house, where the Greens and minor parties presently hold the balance of power. As Hulls observed, the Charter will only come under threat if it becomes a political football – in other words, if something jolts the public from its present mood of indifference and ignorance.

ELLIOT’S AND COSGROVE’S trial began with Julia Elliot’s arrest on 25 August 1995. A week earlier, two men fishing the Rideau River near Ottawa found a pair of human thighs. Police divers soon located the lower legs, feet, arms, hands and head of 64-year-old Larry Foster. The retired auto-mechanic had met Elliot on a holiday in Barbados two years earlier, but the pair soon fell out over a debt. That August, she happened to be back in Canada for a short holiday visiting another man. Witnesses linked her to Foster’s apartment and a bridge near the river; in each instance she was driving a car containing what appeared to be a rolled-up carpet and many of Foster’s belongings. Foster’s and Elliott’s DNA was found on various items respectively linked to her or the crime. In her sole admissible statement to the police, she blamed her new lover for Foster’s death. Justice Cosgrove, citing Elliott’s lack of roots in Canada, refused her application for bail.

The trial concluded on the fourth anniversary of her arrest, when she made her third request for a permanent stay due to state misconduct. Cosgrove granted her request, citing not only the multitude of Charter breaches he had found but also her Charter right to a speedy trial, wrecked by the two year inquiry. Fearing just such a ruling, the police ensured that an officer was at the ready to detain Elliott under a warrant relating to criminal charges she faced in Barbados. But Cosgrove, at the defence’s request, quashed that warrant without taking evidence. The Canadian authorities, frantically trying to lodge an appeal, lost track of her half an hour after she walked out of Cosgrove’s courtroom.

It was a further four years before the Crown’s appeal against the stay was decided. Elliott was represented in her absence by new lawyers, who disowned both her trial lawyer and Justice Cosgrove but nevertheless argued that the stay should remain. Their argument, that Cosgrove himself had breached her Charter right to a speedy trial by his flawed conduct of her hearing, was frostily dismissed by the Court of Appeal. Soon after it ordered a new trial, Elliott disappeared from her residence in Barbados. It was another year before Interpol tracked her down to Costa Rica. On her return to Canada, ten years after Foster’s death, she pleaded guilty to his manslaughter. The prosecutor later explained that the long delay, the reluctance of witnesses to participate in a further trial and the practice of double-counting remand years when calculating the sentence were significant factors in his decision to accept the plea.

IN VICTORIA, just about the only political football that is bigger than football itself is a dangerous person escaping on a “technicality.” Promoters of human rights charters like to speak of the rights of minorities, the disadvantaged and “ordinary citizens.” But in the two dozen or so reported Charter cases to date, there’s only been one that involves a litigant from central human rights casting: a mother of three facing eviction from public housing because her criminal ex-spouse coerced her into letting him and his pots of cannabis stay over for three days. A handful of others have ranged from the ordinary (a woman in a commercial dispute who missed her conciliation conference) to the weird (a dentist wanting to proselytise to his patients while they were in the chair).

The overwhelming majority of Charter cases to date involve people accused or convicted of crimes (although some of these had only modest goals, such as regaining their licence to drive a bus). Indeed, the first ever Charter claimant is arguably the most hated man in Victoria. Carl Williams’s failed attempt to use the Charter to obtain an adjournment for his murder trial remains the most cited precedent on the statute. Other notorious Victorians who have tried to rely on the Charter include the dozen accused allegedly linked to Benbrika’s terrorist organisation, the gun-totin’ former director of the Australian Wheat Board, Trevor Flugge, Tony Mokbel and, most recently, Derryn Hinch. This pattern is well-known overseas and reflects both the many human rights that are specific to criminal process and the heightened incentives of those involved to make a claim.

One can imagine how disappointed the human rights community were when Kelly Gray took a permanent place in history as the first Victorian to succeed in a Charter claim. The prospective Bandidos member from Echuca, charged with bashing someone with a baseball bat, faced a year on remand due to delays in the County Court list. Justice Bongiorno, a former prosecutor and antagonist of the Kennett government, ruled that this breach of Gray’s Charter right to a speedy hearing could be remedied in only one way: bail. Bongiorno’s ruling, which seems to ignore some of the legal obstacles to granting Charter remedies, would probably have been made regardless. Doubtless, the spin doctors have such arguments ready if the worst happens and a person released because of the Charter emerges as a public threat.

In fact, the Charter has already had just such a near miss, but the threat posed no risk for Victorians. Barely a month after the Charter was enacted, Victoria’s Court of Appeal mentioned it in passing while construing a recently enacted law allowing the “monitoring” of sex offenders who had served their sentence. The courts in New South Wales, where a similar law exists, initially rejected the Victorian decision simply because of the Charter reference, but later reluctantly followed it in the name of national “comity.” Paedophile Ray Cornwall, the first NSW sex offender to be released to community “supervision” under the new ruling, shed his ankle bracelet within thirty minutes. He was found in Wollongong the next day, standing near a children’s playground and watching some boys playing beach volleyball. The media frenzy missed the link to Victoria’s Charter, which was in any case more symbolic than causal. Cornwall’s release would have been even more likely if the NSW court had acted according to the view it held before it adopted Victoria’s supposedly Charter-inspired interpretation.

The Victorian government, however, has left little to chance. In late 2007, barely a fortnight before the main provisions of the Charter were due to come into operation, the government issued a surprise regulation exempting the state’s three main parole boards – who, among other things, administer the sex offenders monitoring regime – from the statute’s obligation to act compatibly with human rights. This exemption gives lie to the Charter’s singular feature: any legal “problem” it creates can be easily reversed by legislation. The flipside of this principle is that legislation, publicly debated and analysed for its human rights impact, is the only way such concerns ought to be managed.

That Hulls opted instead for a quiet executive solution a week before Christmas seems to suggest that his worry isn’t about the Charter’s actual impact, but rather how it may be perceived. The fear of a public relations problem is, it seems, enough to deny the Charter’s protections to all prospective and actual parolees (and, for that matter, victims and other stakeholders in the process). The parole boards are now seeking a further extension to their exemption and Hulls has said that he is reluctantly considering their request. In fact, the boards were unlucky. Some much more powerful Victorian institutions are the beneficiaries of a permanent exemption built into the Charter from the get-go.

LARRY FOSTER’S RELATIVES looked on with dismay as events unfolded in Cosgrove’s court. When Elliott’s trial commenced, the judge had a reputation for favouring the prosecution. Indeed, one of the defence’s first salvos at her trial was to ask him to step aside for bias. Early the next year, when the judge began to enthusiastically back the defence’s increasingly wild claims and started to find government Charter breaches in their dozens, the state side made its own, unsuccessful, application. Courts can be both heroes and villains when it comes to human rights. They are one of the most powerful and reliable protectors of people’s rights. But their everyday activities can also limit, even destroy, them.

A year into the trial, Steve, the victim’s son, confronted Elliott’s lawyer in the court’s cafeteria and a shouting match ensued. He ended up having to hire his own lawyer after Cosgrove threatened him with a charge of contempt. Contempt powers are the courts’ strongest weapon in their dealings with the outside world, providing the main means to enforce their orders. But they are also a criminal justice anomaly, where judges act as prosecutor, jury and sentencer, applying rules that are typically unwritten and whose boundaries seem to constantly shift. Those sorts of processes, which seem to embody Acton’s maxim about power and corruption, are anathema to human rights law.

Steve Foster was not alone in being threatened with contempt; several police and prosecutors also ultimately received citations. Cosgrove was also liberal in his use of subpoena powers, agreeing to defence requests to force four of Elliott’s prosecutors to testify. That immediately disqualified them from acting in the case. Fearing a widening of the conspiracy, the judge also barred those prosecutors and various police officers from communicating with their replacements. Cosgrove’s actions left the tiny prosecution office in Brockville in disarray, forcing the trial to move to Ottawa and restart with a fresh jury. When the defence voiced its concern that the loss of corporate memory might make it impossible for the Crown to comply with the very disclosure obligations at issue, Cosgrove casually assured Elliott that the prosecution’s disarray was good news for her.

Four years later, the Court of Appeal was unable to say whether Cosgrove’s mistakes “stemmed from a misunderstanding of the basic principles that govern the Charter and its application or from his bias toward the Crown or both.” This damning verdict prompted Ontario’s attorney-general to refer the matter to Canada’s Judicial Council. The council can make recommendations that parliament sack a judge for misconduct. Cosgrove responded with a challenge of his own, backed by Canada’s defence lawyers and judges’ associations, arguing that the referral system undermined judicial independence and breached his own Charter right to free speech. After a further four years, Canada’s federal court ruled that independence is not to be equated with immunity – quite the opposite – and that the right to free speech exists to protect individuals from the state, not the reverse.

VICTORIA’S CHARTER, unlike Canada’s, protects the courts from many human rights claims. Carl Williams’s landmark claim was to ask Justice Betty King to adjourn his trial to allow him to ensure that he is defended by the lawyer of his choice, a Charter right. Her response was that, even if the gangster’s argument was otherwise sound, it wouldn’t help him, because she was free to ignore his Charter rights if she wanted. Justice King and, indeed, every other judge and tribunal member in Victoria is the beneficiary of an exemption from the Charter. The exemption covers their non-administrative work – everything they do in determining someone’s civil liability, criminal guilty or legal rights – and will stymie many efforts by criminal defendants and offenders to find a toe-hold for their human rights claims.

Indeed, exemptions and gaps in the Charter have been the main story of the statute’s first full year of operation. In what ought to have been a landmark Charter proceeding, Channel Nine sought to raise the new human rights law in its bid to be allowed to show its racy docudrama, Underbelly. Nine relied on a judgment of the Supreme Court of Canada that held that courts should refrain from ineffectual or disproportionate suppression orders. With a keen eye for the future, the Canadians in 1994 referred specifically to the role of computers in distributing information, fourteen years before the internet made a mockery of the ban on Underbelly. But Nine couldn’t even get its foot in the door in Victoria in 2008 because of exemptions banning the Charter from proceedings commenced before 2007 and preventing corporations (including most of the Australian media) from making any rights arguments. When Nine tried to raise a speculative argument that the Supreme Court should comply with the Charter anyway, the attorney-general responded with a constitutional objection, in effect calling the validity of his own statute into question.

The Charter’s over-the-top transitional provision means that people sued or charged in 2006 or earlier cannot raise any Charter rights at all. In 2008, the landmark Victorian trials of Thomas Towle, Evan Goussis, Joseph Thomas and Abdul Benbrika were all run as if the Charter had never been passed. Shane Kent, whose jury hung on his alleged involvement in Benbrika’s organisation, won’t even be able to raise the Charter in his next trial slated for 2010. Perversely, Tony Mokbel, whose alleged crimes occurred in the same time period as all these others, will be the first man associated with the gangland wars to be able to claim his Charter rights, due to a delay in charging him while he was in Greece. Even those who are lucky enough to be eligible to make Charter claims in Victoria’s higher courts will first have to comply with a provision requiring them to notify the attorney-general of their claim. This mechanism, introduced to prevent courts from being swayed by poor legal arguments, makes it difficult to raise the Charter instinctively, routinely or regularly. Miserly and technical constraints such as these have combined to make 2008, the Charters bellwether year, one of the least just in Victoria’s recent history.

Even when the statute does apply, Charter arguments are currently being dodged, rather than debated. Recently, a Victorian doctor asked the Supreme Court to overturn a ban on his practice, pending the outcome of a complaint against him. He argued that the practitioners’ board limited his right to be presumed innocent, because the ban coincided with rape charges being laid against him. While there are many good answers to this argument, Justice Elizabeth Hollingworth spent much of her judgment arguing that a Charter section containing fourteen rights of criminal defendants shouldn’t apply at all outside criminal courtrooms. The major basis for her argument was the wording of the heading of that section, which was narrower than the rights listed within it. If accepted, her argument would have far-reaching implications, denying Victorians the benefits of landmark human rights judgments on innocence and self-incrimination outside of the courtroom.

A different technical knock-out faced Catholic doctors who argued that their freedom of conscience was limited by the Abortion Law Reform Bill. The Charter contains a savings provision for abortion and child destruction laws, supposedly to stop the human rights law from being politicised. It prevents the Charter from being used to interpret not only the recently passed abortion bill, but also any future law, no matter how far pro-life or pro-choice it tilts. Indeed, it would even exclude a Charter challenge against the apocryphal bill requiring that all blue-eyed babies be killed at birth. The government relied on the provision to avoid a Charter requirement that every bill be accompanied by a parliamentary statement explaining how it is compatible with human rights.

Proponents of human rights laws often say that a Charter can only add to rights, not detract from them. But this reassuring claim isn’t entirely true. Last year, the High Court, in a series of cases responding to novel police methods of prising confessions out of suspects, cited earlier Victorian legislation giving rights to criminal detainees as a reason not to adapt the unwritten common law to meet the new challenges. So, for better or for worse, the development of Australian law in response to novel threats to rights is now in the hands of written statutes like the Charter. If the fear of public disapproval continues to be the driving force behind how those statutes are devised and developed, then they may leave Australians with less rather than more protection.

TWO MONTHS AGO, Justice Paul Cosgrove apologised to the attorney-general of Ontario, to the prosecutors, police and private citizens involved in Julia Elliot’s trial, and to the Canadian public and the family of Larry Foster. Fighting for his career before Canada’s Judicial Council, he admitted that he had lost his way in a difficult trial, but also maintained that the humbling experience had made him a better judge. His counsel pointed out that some landmark court decisions on the Charter’s role in such trials had been brought down years too late for Cosgrove. Barred from deciding cases since 2004, he has worked tirelessly presiding over less glamorous mediations and administrative programmes. The Council is presently considering whether or not Cosgrove will be able to return to the bench in the final year before his mandatory retirement. Despite a line of fellow judges attesting to his good work and intentions, it is clear that his reputation will never recover.

The singular aim of human rights law is to ensure that all branches of government never lose sight of the impact of their work on individual humans. But it is important to remember that those who make and apply laws, including human rights laws, are human too. Sometimes, they are very human. Humanity is the source of the resolve and hope that led to the enactment of both Canada’s Charter and Victoria’s. But humanity can also bring hubris, in the form of blind confidence that good intentions alone will suffice and defensive bristling in the face of criticism. And it can also bring fear, a fear that has been written into Victoria’s Charter, insulating it from dangerous paths but also reducing its capacity to bring hope to others and potentially stunting its development by the courts.

The final week of October brought news of a development that might at last allow the Charter out of its shell. Justice Bongiorno has called for submissions in a major human rights challenge to “coercive questioning” laws introduced to fight Melbourne’s gangland war. The case bristles with political dangers. Attorney-general Rob Hulls could respond by raising countless technical arguments to deflect the threat or simply exercise his prerogative to ignore any judicial declarations of Charter incompatibility. Or he could step back and allow the courts, the parliament and the public to engage in the human rights dialogue that is meant to be the statute’s raison d’être. It’s a step by the Charter’s founding father that would exhibit considerable faith in Victorians, courage in the face of political risk and trust in his Charter. •

Jeremy Gans is an associate professor at Melbourne Law School and advises the Victorian Parliament’s Scrutiny of Acts and Regulations Committee on human rights. His running analysis of the Charter of Human Rights and Responsibilities is at charterblog.wordpress.com.

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  1. Bartlett's Blog on 13 December 2008

    One chance to strengthen the rights of all of us…

    I recently questioned whether Australia might be capable of having a mature and honest debate about how best to ensure decent human rights and responsibilities are available to all of us.
    These two pieces might suggest not, but we now have a chance t…

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