Justice For All Australians
This
site is aimed at providing information and a challenge on human rights
issues in Australia, the need for Australian Courts and Tribunals to pay
heed to International Treaties in appropriate circumstances and to
ensure that Justice For All Australians is an achievable aim.Encouragement also for concerned people and those involved in the administration of the Law in Australia, to pay close attention to the rights of prisoners, detainees, those in various other institutions or care and that all of these people are treated humanely, and especially that the International human rights norms are strictly adhered to.
That really is a charge to all of us, in these times of fear of crime and violence, of terrorism and the media feeding frenzy to grab headlines and dramatic stories, and often the truth is not allowed to get into the way of a good story.
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Australian Human Rights Record of Global Concern
Justice Michael Kirby AC CMG
Author: The Hon Justice Michael Kirby AC CMG, President, Court of Appeal, Supreme Court of NSW (1984 - 1996)
Type: Speech
Subjects: Human Rights, Australia
Organisation: Bond University
Location: Bond University, Queensland
FRIDAY 11 FEBRUARY 1994 7 P.M.
Gold Coast, Friday Australia's human rights record is a legitimate matter of international concern. This was said tonight by Justice Michael Kirby when delivering a Focus 2000 address at Bond University. Justice Kirby said that the days when individual countries or states could offend international principles on human rights or judicial independence were gone. He said that Australia was just as much obliged to conform to international law as was Iraq or Somalia. The world was watching closely our response to Aboriginal claims to traditional land. Justice Kirby said that it was the legitimate role of judges to call attention to departures from basic international principles. If they did not do so, nobody else might do so:
Subjects: Human Rights, Australia
Organisation: Bond University
Location: Bond University, Queensland
FRIDAY 11 FEBRUARY 1994 7 P.M.
Gold Coast, Friday Australia's human rights record is a legitimate matter of international concern. This was said tonight by Justice Michael Kirby when delivering a Focus 2000 address at Bond University. Justice Kirby said that the days when individual countries or states could offend international principles on human rights or judicial independence were gone. He said that Australia was just as much obliged to conform to international law as was Iraq or Somalia. The world was watching closely our response to Aboriginal claims to traditional land. Justice Kirby said that it was the legitimate role of judges to call attention to departures from basic international principles. If they did not do so, nobody else might do so:
"There are still some
Australian backwoodsmen who hanker for the old days of isolation and
unquestioned national sovereignty. But those days disappeared with the mushroom
cloud over Hiroshima.
The world today is linked by jumbo jets, cellular telephones, interactive
computers and many common problems. We cannot solve AIDS in our own individual
countries. We cannot effectively respond to the dilemmas of the Human Genome
Project in the legislature of an Australian
State. We cannot
respond to the new empire of intangible power - the global media and its
handful of owners - on our own. Like it or not, the world is increasingly
thrown together. We must therefore develop an increasingly effective machinery
of international government. Inevitably this will mean that nation states,
including our own, will lose some of their sovereignty. This is happening
already. It is a natural historical process. It finds reflection in politics.
But it also finds reflection in the law. That reflection includes a universal
concern about the respect for human rights and for the independence of judges
and other like decision-makers. That is why, when there are assaults in one
country upon these basic principles it is the duty of judges and other lawyers
to point them out, in the hope that the political processes will respond and
correct the wrongs. This is an act designed to ensure that the political
process works in an effective and democratic way", Justice Kirby said.
Justice Kirby responded to criticism by a columnist in the Australian
newspaper directed at his action in speaking at a dinner in Melbourne
upon the abolition of the office of the Commissioner for Equal Opportunity,
held by Ms Moira Rayner:
"We in Australia
used to look with pride at the stability and independence of our judicial and
quasi-judicial institutions. We regarded the sacking of judges as something
that happened only in Third World
countries. Yet in the past five years we have seen the development in Australia
of the practice of getting rid of judges, and other independent office-holders,
by the simple expedient of abolishing their courts and tribunals. This was
achieved by the Federal Labor Government in the case of Justice Staples. It has
been followed with enthusiasm by State Coalition Governments. It is not a
political act to call this development to public attention. The accumulation of
cases is now a source of real concern. How can we expect judges and other
independent office-holders to act with integrity and courage when they know
that if the Government or Opposition do not like what they do, they can be
simply removed by abolishing their position. This would never have happened in
the past. It is a breach of international principles protecting the
independence of judges and lawyers. If judges do not speak up against this
conduct, it will pass unnoticed and we will have lost a precious feature of our
society that helps to guard our liberties."
Future human rights issues
Justice Kirby listed a number of future issues for human rights which, he said, would find their way onto the agenda of human rights discussion in Australia and in other countries in the decades ahead. He mentioned:
* The impact on human rights of fundamentalist politics and religion;
Justice Kirby listed a number of future issues for human rights which, he said, would find their way onto the agenda of human rights discussion in Australia and in other countries in the decades ahead. He mentioned:
* The impact on human rights of fundamentalist politics and religion;
* The implications for human rights of complex biotechnological
developments, including the Human Genome Project, which could redefine the very
concept of humanity itself;
* The empowerment of women as an effective means of spreading the principles of human rights;
* The removal of discrimination on the grounds of sexual orientation in Australia and in other countries;
* The implications for human rights of the global spread of HIV/AIDS;
* The implications of drug dependence and drug use for basic human rights; and
* The significance of the growth of multinational media empires for the human right of free expression and of diversity of opinion.
Global media is a new empire large uncontrolled
Of the impact of global media, Justice Kirby said:
* The empowerment of women as an effective means of spreading the principles of human rights;
* The removal of discrimination on the grounds of sexual orientation in Australia and in other countries;
* The implications for human rights of the global spread of HIV/AIDS;
* The implications of drug dependence and drug use for basic human rights; and
* The significance of the growth of multinational media empires for the human right of free expression and of diversity of opinion.
Global media is a new empire large uncontrolled
Of the impact of global media, Justice Kirby said:
"In the past, the empires
of the world were tangible things. A living sovereign - King or Queen - with
fleets and armies. In the future empires will be made of intangible power. Of
electronic signals sent by satellites to dozens of countries simultaneously,
none of which individually has the power to control their impact. Yesterday Mr
Rupert Murdoch was welcomed to India
with more fuss and attention than most Heads of State. He protested surprise.
But the fuss was a reflection of the realisation of the great power now held by
comparatively few people with greater influence upon the world's thinking and
action than virtually any King. We have the United Nations to effect its
imperfect control over tangible sovereigns. But who in the 21st century will
bring the intangible empires of the global media under the discipline of
responsible conduct and answer-ability to the law and respect for basic rights?
The old adage about absolute power corrupting absolutely has sufficient truth
in it that we should ponder the need for new international responses to the
power of the global media to set the political, social, cultural and economic
agenda. This is an important issue for the coming century. I am not sure of the
solutions. But the beginning of wisdom is a realisation that there is a
problem", Justice Kirby said.
Notes on Speech The above speech was delivered at
Bond University,
Gold Coast, Queensland.
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AUSTRALIAN LAW JOURNAL
INTERNATIONAL LEGAL NOTES
The growing impact of international law on Australian domestic law. Implications for the procedures of ratification and Parliamentary scrutiny
No Australian lawyer could fail to observe the debate about the growing use of international treaties as a foundation for Federal legislation, expanding the area of Federal law-making into matters hitherto regulated by State law.
In a recent speech, delivered as an Occasional Lecture for the Senate Department of the Australian Parliament, Justice Michael Kirby, who is President of the Court of Appeal of New South Wales but also holds a post as Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia, addressed the expansion of treaty-based law-making. He made a proposal for improving the procedures of Parliamentary scrutiny of treaties before they are ratified, or acceded to, by Australia.
Because of the significance of this debate, extracts adapted from Justice Kirby's lecture follow:
Controversial use of international treaties
"The controversy about the use of treaties to support Australian Federal legislation came to the fore during the passage of the Human Rights (Sexual Conduct) Act 1994 (Cth).1 That measure was designed to give effect to the decision of the Human Rights Committee of the United Nations in the complaint by Mr N Toonen against Australia. Yet that Federal Law was simply the latest of a number, under successive Governments and Parliaments. The quandaries already existed in the 1920s when Federal Parliament enacted the Air Navigation Act to give effect to the ratification, including on behalf of Australia, of the Paris Convention of 1919 regulating international aerial navigation.2 They were certainly there when the Parliament enacted conservation legislation under which the Governor-General, pursuant to the World Heritage Convention3 made regulations protecting an area of national park in Tasmania leading to the Tasmanian Dams Case.4 But there was something about the passion and emotion of the recent debate which called forth the most strongly voiced reservations yet expressed about what was seen by some as a worrying, even undesirable, legislative trend.
Some of the commentary was ill tempered and confused. Yet behind often emotive language lies the expression of serious concern which requires the attention of those who are generally sympathetic to the incoming tide of international human rights law and its influence upon Australia. The noted commentator John Hyde, writing in The Australian said:5
"There is something amiss with a polity that, to achieve its aims, enters treaties with undemocratic committees of the United Nations, ... to overrule the processes by which it itself is governed. This was not the intention of those who drafted the constitution; nor is it the wish of Australians today. ..."
To the same effect were the remarks of Senator Rod Kemp who concluded:6
"Involving UN committees in Australian domestic disputes will inevitably, over time, undermine our own legal institutions. ... Australia's major constitutional problems [are] ... the expansive use of the external affairs power, the ruthless use of ILO and UN treaties to over-ride States and the ceding of sovereignty to foreign committees. The present generation of Australians do not want their laws made in London or at the UN."
The former Prime, Mr Malcolm Fraser, also criticised the process of the use of international conventions:7
"In one case, in December 1992, the Governor-General was asked to ratify a treaty only hours before the dissolution of Parliament. No media release was issued. ... [A]re Australians to be masters of their own affairs or are Australians to give away their sovereignty to United Nations committees? The point become all the more relevant when you look at the membership of these committees. The membership is appointed by governments that often ignore the decisions of the committee and yet Australia binds itself and feels required to obey."
There are similar statements by other Australian politicians and ex-politicians. Not all of them are members of the Coalition side of politics. For example, the former ALP Senator Peter Walsh observed:17
"I am not and never have been a monarchist, but find it ironic that so many contemporary Australians determined to protect us from the non-existent threat of English tyranny, fall over each other in a scramble to surrender Australian sovereignty to a rag-tag and bobtail of unrepresentative United Nations committees, accountable to nobody."
There are undoubtedly questions here for serious reflection. They derive from the democratic and federal nature of our constitution. From our traditional willingness to leave our human rights to be determined, from time to time, by Parliaments elected by our people and upheld by independent courts Australian suspicion is fuelled when the obligation to change Australian law derives from committees of the often inefficient United Nations made up of people whose commitment to the kind of values which Australians generally share is generally thought to be doubtful.
The international perspective
As Special Representative of the Secretary-General for Human Rights in Cambodia I am obliged to report to the Commission on Human Rights in Geneva in March 1995. This post has taken me on five missions to Cambodia. The missions are exhausting and sometimes even a little dangerous. They have to be squeezed into my extremely busy court duties. I see, and report upon, aspects of Cambodian human rights which are discouraging and even depressing. The abiding problems of security. The ever-present reminders of the genocide. The landmines which claim daily victims. The poverty, low expenditure on health and education. The new peril of HIV/AIDS. Corruption. The poor standard of some media and the intolerance of criticism of some government officials. All of these problems I chronicle with, I hope, constructive suggestions for improvements.
But I also report upon the many advances which are made daily in the rebuilding of Cambodia.
My reports on Cambodia must be given twice a year: once in March to the Commission on Human Rights in Geneva and then, in November, to the General Assembly in New York. The experience of doing this is a humbling one. The hall is packed with the great variety of humanity. Virtually every nation on earth and many inter-governmental and international agencies are there. It is, of course, an imperfect place, just as our world is imperfect. Doubtless at the tables sit not a few who have little real commitment to fundamental human rights or whose agenda puts any such concerns below others. But one after another, the UN Special Representatives and Special Rapporteurs are heard. They have complete freedom to speak as they see things. They call dictators and tyrants to account before the bar of the international community and the judgment of humanity. It is the pressure of these almost continuous sessions of international scrutiny of human rights which has helped bring about the fundamental changes we have recently seen in South Africa, in Malawi, in Palestine and elsewhere. It is there that reports are made on particular countries and on abiding themes of importance to global human rights. Pressure is applied to countries such as Cuba, China, Haiti, Iran, Iraq, Sudan, Afghanistan, Burma and the states of the former Yugoslavia. Once, in the name of "sovereignty", they would have ignored such pressure. In front of the world community that is now impossible.9
Pressure is also applied to Equatorial Guinea, to Indonesia in respect of East Timor, to Papua-New Guinea in respect of Bougainville, to India and Pakistan in respect of Kashmir, to China in respect of Tibet. Pressure is even applied to Australia in respect of our long neglected Aboriginal people. Of course, the pressure sometimes fails. Immediately following my last report on Cambodia, the Rapporteur on Sudan was denounced by the government of that country. But the important point is that the representative of Sudan was obliged to answer to the world and to very specific criticisms.
The lesson of recent decades is that this requirement may eventually have a beneficial effect. It gives a voice to the oppressed. It lifts the hopes of those who would otherwise be without hope. In the one big room, the essential inter-dependence and ultimate unity of humanity is brought home to all. In a world of jumbo-jets, of instantaneous telecommunications, of global environmental hazards and of AIDS we are forced to see human rights as it is: a cause of international concern. Doubtless it has many inefficiencies and weaknesses. But it grew out of the awful revelations of the last World War and the detonation of the atomic bomb at Hiroshima. International peace and security were seen as interrelated with human rights. International Security would have no lasting reality unless built on universal respect for fundamental rights. So long as that is not assured, the world will continue to be an angry and a dangerous place.
We in Australia cannot be entirely cut off from the international moves for the protection of universal human rights. Our continent is part of the world. The thought that we can shut out the influence of this global development of such potential for the coming millennium is as unrealistic as it is unworthy.10
The Australian path of gradualism
Some, at least, of the concerns that have been voiced by the commentators about the growing influence of international human rights principles upon our law can, I think, be adequately answered:
1. The international committees which are frequently criticised stand in an entirely different relationship to the Australian legal system than the Privy Council in London did. By our constitution, the Privy Council was part of the Australian judicial hierarchy. No United Nations committee and no international court has the same power. So far as the committees are concerned, their decisions derive only from the power which we, as a nation, have accorded them. Their decisions are not self-executing. As in the case of the decision of the UN Human Rights Committee on the complaint of Mr Toonen against the Tasmanian laws,11 the decision is only translated into action in Australia by the authority of an Australian law-maker. The Sexual Conduct Act rests upon a decision, duly debated, of the Australian Parliament. No Australian law was changed, as such, by the decision of the United Nations committee;
2. The United Nations committee has, it is true, members from a number of states which do not share all of our perspectives on human rights. But the members of the committee are elected for their individual expertise. When serving, they do not act as representatives of their country but in a personal capacity. They must make a solemn and public declaration to that effect. The Toonen decision was unanimous. This suggests that, even in a matter as controversial in some countries as the rights of homosexuals, nationality and legal tradition had little final influence.12 The decision of the committee may be criticised on its merits, as it has been, by experts in international law who think that it went too far13 or not far enough.14 Some criticism was directed to the inability of Tasmania, as such, to be heard directly by the committee. But that was simply the result of the fact that, by the Australian constitution, the Commonwealth is the international representative of Australia. In fact, the Federal authorities consulted Tasmania. Extracts from Tasmania's submissions were included in the Australian statements to the committee. But rejected;
3. The notion that Tasmania's democratically elected Parliament should have the right to over-ride fundamental rights, globally declared and relevantly held applicable, begs an important question. It would have been preferable for the people of Tasmania, through their Parliament, to have accepted the justice of repealing the sections of the Tasmanian Criminal Code which threatened to punish, and which stigmatised Mr Toonen, and other homosexual and bisexual men and occasioned the complaint. There is now an Australia-wide legal standard on this matter. A distinguished international human rights court had earlier declared what fundamental respect for human rights required of the law on this subject.15 Scientific enlightenment had made it clear that to punish or stigmatise a person on the grounds of sexual orientation is as wrong as to do so on the ground of gender or race and as irrational as to do so on the basis of left-handedness. Tasmania has an unusual electoral system. The prospect of a change of mind in the Upper House seemed remote, at least in the short term.
Australia's international obligations have been declared. It was either to ignore the declaration and justify it by reference to its constitution and politics - or it was obliged to act to fulfil the obligation it had accepted;
4. The democratic argument, and the complaint about loss of "sovereignty" have an undoubted appeal. But it is increasingly recognised that democracy is not simple majoritarian votes. Democracy, as it is now practised, is a system of government which accords power to persons elected by the majority of citizens upon the condition that they will respect the fundamental rights and dignity of minorities. Professor Ronald Dworkin has explained that human rights are promises to minorities that their dignity and equality be respected by the majority.16 It seems unlikely that Australians would accept a State law which criminally punished people because they were of Jewish or Chinese ethnicity or because they were women or because their skin was dark. Seen in this light, the limits of democracy are reached. Far from being a surrender of "sovereignty", measures taken to uphold minority rights, authoritatively declared by an expert international committee, may be seen as an exercise of sovereignty. To talk of "sovereign States", or for that matter "the sovereign Federation", is to indulge in metaphors which are not sustained by the Australian Constitution as it has been interpreted. Australia's is a complex sovereignty. In 1901 it divided up great power by adopting the Federal system of government. It did not adopt the other means of dividing power by an entrenched, written, bill of rights although this is now being reconsidered.17
5. A little known change which has come about in recent years parallels the passage of legislation through Parliament to give effect to international standards. This is the impact of international human rights jurisprudence upon Australia's court decisions. As Justice Brennan pointed out in Mabo18 it is inevitable that, over time, the influence of the International Covenant on Civil and Political Rights will be brought to bear upon the perception by Australian judges of what judge-made law requires. If there is a gap in the common law, or if a statute is ambiguous, it is inevitable and right that Australian courts should fill the gap, or resolve the ambiguity, by reference to any applicable international rule. Better that the judge should do this than rely upon personal, idiosyncratic values or upon distant analogies from earlier, different times. This is simply the next natural phase in the development of the Australian common law as it adapts to the world of internationalism. Fortunately, our system of law has a never-ending capacity to respond to new problems and to adapt sensible solutions from new sources;19 and
6. For those who say that Australia has nothing to learn from these international developments, which may be useful enough to the poor people of Cambodia and to the oppressed in Cuba, Sudan, Burma and elsewhere, history denies it. In the matter of the human rights of homosexuals, the statute law stood as an oppression to that section of our community in all parts of Australia for more than a hundred years. It still remains on the statute books of Tasmania. In hindsight, what is remarkable is not that these things were changed, but that they lasted so long.20 It is also notable that Australia enjoyed one hundred and fifty years of elected, representative government and not a single Parliament of this nation saw fit to reverse the manifest fiction that Australia was terra nullius when the settlers arrived. It was left to the High Court of Australia in Mabo to shatter the fiction and propel our country to a juster law. In this way Australians, through their constitutional government, strive toward enlightenment. Sole reliance upon the democratic assemblies may not always ensure that respect is accorded to the fundamental rights of minorities. Occasionally, an external stimulus is useful. One such stimulus in today's world is international human rights law. The instruments of stimulus include such bodies as the UN Human Rights Committee, the International Penal Tribunal just established including Sir Ninian Stephen, the UN Commission on Human Rights and the Special Representatives and Special Rapporteurs, of whom I am one. We should see these instruments as a natural development of the history of our planet to which Australia has an obligation, and a privilege, to contribute.
Lessons for the future
The concerns of many Australians about respect for democracy, the preservation of the Federal compact and local responsibility for human rights matters must not be lightly dismissed. They are views sincerely held, strongly argued and they have a foundation which is legitimate. How can we reconcile what seems to be the natural tide of history, one that is often, if not usually, beneficial, with the constitution of this country drawn up for utterly different international circumstances and for a significantly different Australian people?
The Minister for Foreign Affairs (Senator Evans) who has done a great deal to support the United Nations work in human rights has rejected the proposal that Australia's ratification of international treaties should be submitted to Parliamentary approval. To Senator Kemp's rhetoric "We could not have the people at all involved in this", Senator Evans told an Estimates Committee bluntly, "Dead right". Later Senator Evans, before an Estimates Committee, agreed that treaties would be tabled in Parliament before action is taken to adhere to them.21
It is certainly our tradition that the Executive Government, succeeding to the prerogative powers of the Crown, has reserved to itself the right, and the duty, to subscribe to international treaties in the name of Australia. There are arguments for persisting with this tradition. Not the least of these is the frequent need for Australia to act swiftly and with a single voice in matters of international concern. Procedures have been introduced for consultation on new treaties with State Governments and, where relevant, with industry and community groups. This is a beneficial development. The question is whether it has gone far enough
Some important treaties have been ratified with little Parliamentary or public debate. The Government's action of depositing the instrument of accession to the First Optional Protocol to the ICCPR before the tabling of the instrument in Parliament was described as "extraordinary" ... "without any public debate or even public awareness of its existence, let alone its scope and significance".22 The growing body of treaty law has an increasing impact on Australian law. It therefore seems legitimate, in some way, now to involve the national Parliament in the superintendence of Executive action in respect of treaties. The old rule may have been apt for a time when international law was in its infancy. But nowadays, in economic matters as well as those relevant to human rights, the growth of international treaty law is extremely significant and growing even more important. In 1961 Prime Minister Menzies announced that, in general, the Australian Government would not proceed to ratify or accede to a treaty until it had lain on the table of both Houses of Federal Parliament for twelve sitting days.23 Whilst the politics of resistance to Parliamentary scrutiny are understandable and I would regret a move to the United States requirement of advice and consent of the legislature, which has proved such a reinforcement of isolationism, there is surely an intermediate position. Parliamentary scrutiny is not the same as Parliamentary approval. Scrutiny could be part of the larger function of raising Australian awareness of the growing body and importance of international law. As that law comes to sustain Australian statutes (such as the Sexual Conduct Act), Australian Executive action (such as the Tasmanian Dams regulations) and Australian court decision (such as, in part, Mabo), it is appropriate that the actions of the Federal Executive in ratifying treaties should be assisted by the consideration of the representatives of the Australian people. I do not believe that Australians favour an isolationist country. Still less do I believe that they are unaware of the important moves which I have described, in the international community, for the better protection of human rights everywhere. The Australian people can be trusted, as can their representatives in Parliament, to understand that it is possible to reconcile our Federal constitution and the growing province of international law. In their genius, the Founders provided the means to do so. It takes legislators and judges of understanding to ensure that the constitution continues to serve Australia and its people in a time when human rights, like so much else, assumes an expanding international dimension.
The external affairs power in the Australian constitution appears, both by express terms and by its location in the document, are an element of a constitution which is Federal in its basic character. Although the grant of power is large indeed, it is not uncontrolled. It is the function of successive Parliaments and of the High Court, to chart the boundaries of the power in new circumstances. Amongst the new circumstances are the growing sense of national identity of Australians, the changing role of Australia in its region and in the world, the changing features of international law and the role of the United Nations and other international or regional bodies. To say this is simply to say that our constitution adapts to the changing nation and world in which it must operate. We have institutions, working in constant symbiosis, which provide the solutions for changing times. Should these solutions sometimes prove unacceptable we have the remedy in our own hands. Those who enjoy the temporary responsibility of exercising power in Australia should not forget the Federal character of the constitution. That character itself protects our freedoms. But they should also have a view of our changing world and a vision of the future so that they see Australia as it is - part of a world of increasing economic and human interdependence."
FOOTNOTES
* President of the Court of Appeal of New South Wales. Chairman of the Executive Committee of the International Commission of Jurists. Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia.
1. See eg (1994) 3 Human Rights Defender 1; (1994) 5 HIV/AIDS Legal Link 1.
2. See The King v Burgess (1936) 55 CLR 608.
3. Convention for the Protection of the World Cultural and Natural Heritage (UNESCO).
4. See The Commonwealth v Tasmania (1983) 158 CLR 1. (The Tasmanian Dams Case).
5. 2 September 1994.
6. R Kemp "Let's Make our Own Laws" Herald Sun, 30 August 1994, 15.
7. M Fraser "UN Poses Biggest Threat to our Sovereignty", The Australian, 17 August 1994. Contrast E G Whitlam, "National and International Maturity" (1992) 46 Aust J Interntl Affairs 29.
8. P Walsh cited in M Fraser op cit n 7.
9. See Commentary, "The United Nations Commission on Human Rights: 50th Session" (1994) 52 The Review (ICJ), 66.
10. A F Bayefsky, "Making the Human Rights Treaties Work" in L Henkin and J L Hargrove (eds) Rights: An Agenda for the Next Century, ASIL, Washington DC, 1994.
11. United Nations, Human Rights Committee, Communication No 688/1992. Nicholas Toonen and Australia Doc: CCPR/C/50/D 488/1992 (4 April 1994).
12. H Charlesworth "Protecting Human Rights" (1994) 68 Law Inst J (Vic) 462 at 463.
13. See eg A Funder "The Toonen Case" (1994) 5 Public Law Rev 156.
14. See eg G Selvaner "Gays in Private, the Problems with the Privacy Analysis in Furthering Human Rights" (1994) 16 Adelaide L Rev 331; W Morgan "Protecting Rights or Just Passing the Buck?" (1994) 1 Aust J Human Rights 409.
15. See Dudgeon v United Kingdom (1981) 3 EHRR 40; Monnell and Norris v Ireland (1988) 10 EHRR 205 and Modinos v Cyprus (1993) 16 EHRR 485 (decisions of the European Court of Human Rights). Cf D W Jackson, "Judging Human Rights: The Formative Years of the European Court of Human Rights" (1993) 13 Windsor YB Access J 217, 236.
16. R Dworkin Taking Rights Seriously, 1977, 205.
17. See eg M D Kirby, "The Bill of Rights Debate", Australian Lawyer, vol 29, December 1994, 16.
18. (1992) 175 CLR 1, 42.
19. See M D Kirby, "The Australian Use of International Human Rights Norms" (1991) 16 UNSWLJ 363.
20. See for Amnesty's criticism of Australia (1994) 3 Human Rights Defender, 1.
21. See Australian Senate, Estimates Committee, Hansard, 29 November 1994, 157. See also the tabling by Senator Harradine, on 23 August 1983, of a proposal for a Standing Committee on Treaties, reintroduced on motion in each session since 1983 and the introduction by the Australian Democrats of the Parliamentary Approval of Treaties Bill 1994 (Cth). The Bill would provide a system of Parliamentary disallowance of subscription to treaties disapproved by Parliament. On 21 October 1994, Senator Evans and the Federal Attorney-General (Mr Michael Lavarch) issued a statement reaffirming "the Government's commitment to responsible and transparent treaty making", stating that the Government was "happy to take further steps to strengthen the flow of information to Parliament".
22. See A Twomey, Parliamentary Research Service Bkgrd Paper No 27, 1995 Procedure and Practice of Granting and Implementing International Treaties 9 February 1995, 9. See also Australian Parliament, Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia's Efforts to Promote and Protect Human Rights, AGPS, Canberra, Nov 1994, 47ff.
23. See Commonwealth Parlt Debates 10 May 1961, 1693. This practice should be restored.
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OPTION 2
AUSTRALIAN LAW JOURNAL
INTERNATIONAL LEGAL NOTES
The growing impact of international law on Australian domestic law. Implications for the procedures of ratification and Parliamentary scrutiny
No Australian lawyer could fail to observe the growing debate about the use of international treaties as a foundation for Federal legislation, expanding the area of Federal law-making into matters hitherto regulated by State law.
In a recent speech, delivered as an Occasional Lecture for the Senate Department of the Australian Parliament, Justice Michael Kirby, who is President of the Court of Appeal of New South Wales but also holds a post as Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia, addressed the expansion of treaty-based law-making. He made a proposal for improving the procedures of Parliamentary scrutiny of treaties before they are ratified, or acceded to, by Australia.
Because of the significance of this debate, extracts adapted from Justice Kirby's lecture follow. After listing criticisms of Federal use of human rights treaties, voiced by commentators of different political affiliation in Australia, Justice Kirby went on to explain the likely continuation of this process, indeed its expansion. He then proposed improved Parliamentary arrangements to ensure the proper democratic scrutiny of treaties before ratification or accession by Australia.
Inevitable and beneficial impact of international law
"The following are reasons why some of the criticisms of the growing use of treaties in Federal law-making in Australia should be seen as inevitable and potentially beneficial:
1. The international committees which are frequently criticised stand as a source of international legal obligations in an entirely different relationship to the Australian legal system than the Privy Council in London did. By our constitution, the Privy Council was part of the Australian judicial hierarchy. No United Nations committee and no international court has the same power. So far as the committees are concerned, their decisions derive only from the power which we, as a nation, have accorded them. Their decisions are not self-executing. As in the case of the decision of the UN Human Rights Committee on the complaint of Mr Toonen against the Tasmanian laws,1 the decision is only translated into action in Australia by the authority of an Australian law-maker. The Human Rights (Sexual Conduct Act) 1994 (Cth) rests upon a decision, duly debated, of the Australian Parliament. No Australian law was changed, as such, by the decision of the United Nations committee;
2. The United Nations committee has, it is true, members from a number of states which do not share all of our perspectives on human rights. But they are states of the world we live in. The members of the committee are elected for their individual expertise. When serving, they do not act as representatives of their country but in a personal capacity. They must make a solemn and public declaration to that effect. The Toonen decision was unanimous. This suggests that, even in a matter as controversial in some countries as the rights of homosexuals, nationality and legal tradition had little final influence.2 The decision of the committee may be criticised on its merits, as it has been, by experts in international law who think that it went too far3 or not far enough.4 Some criticism was directed to the inability of Tasmania, as such, to be heard directly by the committee. But that was simply the result of the fact that, by the Australian constitution, the Commonwealth is the international representative of Australia. In fact, the Federal authorities consulted Tasmania. Extracts from Tasmania's submissions were included in the Australian statements to the committee. But rejected;
3. The notion that Tasmania's democratically elected Parliament should have the right to over-ride fundamental rights, globally declared and relevantly held applicable, begs an important question. It would have been preferable for the people of Tasmania, through their Parliament, to have accepted the justice of repealing the sections of the Tasmanian Criminal Code which threatened to punish, and which stigmatised Mr Toonen, and other homosexual and bisexual men. There is now an Australia-wide legal standard on this matter. International human rights courts had earlier declared what fundamental respect for human rights required of the law on this subject.5 Scientific enlightenment had made it clear that to punish or stigmatise a person on the grounds of sexual orientation is as wrong as to do so on the ground of gender or race and irrational as to do so on the basis of left-handedness. But Tasmania has an unusual electoral system. The prospect of a change of mind in the Upper House seemed remote, at least in the short term. Australia's international obligations have been declared. It was either to ignore the declaration and justify it by reference to its constitution and politics - or it was obliged to act to fulfil the duty it had accepted;
4. The democratic argument, and the complaint about loss of "sovereignty" have an undoubted appeal. But I think it is increasingly recognised that democracy is not simple majoritarian votes. Democracy, as it is now practised, is a system of government which accords power to persons elected by the majority of citizens but upon the condition that they will respect the fundamental rights and dignity of minorities. Professor Ronald Dworkin has explained that human rights are promises to minorities that their dignity and equality be respected by the majority.6 It seems unlikely to me that Australians would accept a State law that criminally punished people because they were of Jewish or Chinese ethnicity or because they were women or because their skin was dark. Seen in this light, the limits of democracy are reached. Far from being a surrender of "sovereignty", measures taken to uphold minority rights, authoritatively declared by an expert international committee, may be seen as an exercise of sovereignty. To talk of "sovereign States", or for that matter "the sovereign Federation", is to indulge in metaphors which are not sustained by the Australian Constitution as it has been interpreted. Australia's is a complex sovereignty. In 1901 it divided up great power by adopting the Federal system of government. Yet it did not adopt the other means of dividing power by an entrenched, written, bill of rights.7
5. A little known change that has come about in recent years parallels the passage of legislation through Parliament to give effect to international standards. This is the impact of international human rights jurisprudence upon Australia's court decisions. As Justice Brennan pointed out in Mabo8 it is inevitable that, over time, the influence of the International Covenant on Civil and Political Rights will be brought to bear upon the perception by Australian judges of what judge-made law requires. If there is a gap in the common law, or if a statute is ambiguous, it is both inevitable and right that Australian courts, in today's world, should fill the gap, or resolve the ambiguity, by reference to any applicable international rule. Better that the judge should do this than rely upon personal, idiosyncratic values or upon distant analogies. This is simply the next natural phase in the development of the Australian common law as it adapts to the world of internationalism. Fortunately, our system of law has a never-ending capacity to respond to new problems and to adapt sensible solutions from new sources;9 and
6. For those who say that Australia has nothing to learn from these international developments, which may be useful enough to the poor people of Cambodia and to the oppressed in Cuba, Sudan, Burma and elsewhere, the response comes back. Recent history denies it. In the matter of the human rights of homosexuals, the law stood as an oppression to that section of our community in all parts of Australia for more than a hundred and fifty years. It still remains on the statute books of Tasmania. In hindsight, what is remarkable is not that these things were changed, but that they lasted so long.10 It is also notable that Australia enjoyed one hundred and fifty years of elected, representative government and not a single Parliament of this nation saw fit to explode the manifest fiction that Australia was terra nullius when the settlers arrived. It was left to the High Court of Australia in Mabo to shatter the fiction and propel our country to a juster law. This is the way Australians, through their constitutional government, strive toward enlightenment. Sole reliance upon the democratic assemblies may not always ensure that respect is accorded to the fundamental rights of minorities. Occasionally, an external stimulus is useful. One such stimulus in today's world is international human rights law. The instruments of stimulus include such bodies as the UN Human Rights Committee, the International Penal Tribunal just established and including Sir Ninian Stephen, the UN Commission on Human Rights and the team of Special Representatives and Special Rapporteurs, of whom I am one. We should see these instruments as a natural development of the history of our planet to which Australia has an obligation, and a privilege, to contribute.
Lessons for the future
This said, the concerns of many Australians about respect for democracy, the preservation of the Federal compact and local responsibility for human rights matters must not be lightly dismissed. They are views sincerely held, strongly argued and they have a foundation which is legitimate.
How can we reconcile what seems to be the natural tide of history, one that is often, if not usually, beneficial, with the constitution of this country drawn up for utterly different international circumstances and for a significantly different Australian people? That is a challenge which is before us now.
The Minister for Foreign Affairs (Senator Evans) who has done a great deal to support the United Nations work in human rights has rejected the proposal that Australia's ratification of international treaties should be submitted to Parliamentary approval. "No way, José" was his response to this proposal, when made by Senator Rod Kemp. To Senator Kemp's rhetoric "We could not have the people at all involved in this", Senator Evans told an Estimates Committee bluntly, "Dead right". Later Senator Evans, before an Estimates Committee, agreed that treaties would be tabled in Parliament before action is taken to adhere to them. This was described as a "sort of halfway José.11
It is certainly our tradition that the Executive Government, succeeding to the prerogative powers of the Crown, has reserved to itself the right, and the duty, to subscribe to international treaties in the name of Australia. There are arguments for persisting with this tradition. Not the least of these is the frequent need for Australia to act swiftly and with a single voice in matters of international concern. Procedures have been introduced for consultation on new treaties with State Governments and, where relevant, with industry and community groups. This is a beneficial development. The question is whether it has gone far enough.
Some important treaties have been ratified with little Parliamentary or public debate.12 The Government's action of depositing the instrument of accession to the First Optional Protocol to the ICCPR before the tabling of the instrument in Parliament was described as "extraordinary" ... "without any public debate or even public awareness of its existence, let alone its scope and significance". The growing body of treaty law has an increasing impact on Australian law. It therefore seems legitimate, in some way, now to involve the national Parliament in the superintendence of Executive action in respect of treaties. The old rule may have been apt for a time when international law was in its infancy. But nowadays, in economic matters as well as those relevant to human rights, the growth of international treaty law is extremely significant and growing even more important. In 1961 Prime Minister Menzies announced that, in general, the Australian Government would not proceed to ratify or accede to a treaty until it had lain on the table of both Houses of Federal Parliament for twelve sitting days.13 Whilst I fully understand the politics of resistance to Parliamentary scrutiny and would regret a move to the United States requirement of advice and consent of the legislature, which has proved such a reinforcement of isolationism, there is surely an intermediate position. Parliamentary scrutiny is not the same as Parliamentary approval. Scrutiny could be part of the larger function of raising Australian awareness of the growing body and importance of international law. As that law comes to sustain Australian statutes (such as the Sexual Conduct Act), Australian Executive action (such as the Tasmanian Dams regulations) and Australian court decision (such as, in part, Mabo), it is appropriate that the actions of the Federal Executive in ratifying treaties should be assisted by the consideration of the representatives of the Australian people. I do not believe that Australians favour an isolationist country. Still less do I believe that they are unaware of the important moves which I have described, in the international community, for the better protection of human rights everywhere. The Australian people can be trusted as can their representatives in Parliament, to understand that it is possible to reconcile our Federal constitution and the growing province of international law. In their genius, the Founders provided the means to do so. It takes legislators and judges of understanding to ensure that the constitution continues to serve Australia and its people in a time when human rights, like so much else, assumes an expanding international dimension.
The external affairs power in the Australian constitution appears, both by express terms and by its location in the document, are an element of a constitution which is Federal in its basic character. Although the grant of power is large indeed, it is not uncontrolled. It is the function of successive Parliaments and of the High Court, to chart the boundaries of the power in new circumstances. Amongst the new circumstances are the growing sense of national identity of Australians, the changing role of Australia in its region and in the world, the changing features of international law and the role of the United Nations and other international or regional bodies. To say this is simply to say that our constitution adapts to the changing nation and world in which it must operate. We have institutions, working in constant symbiosis, which provide the solutions for changing times. Should these solutions sometimes prove unacceptable we have the remedy in our own hands. Those who enjoy the temporary responsibility of exercising power in Australia should not forget the Federal character of the constitution. That character itself protects our freedoms. But they should also have a view of our changing world and a vision of the future so that they see Australia as it is - part of a world of increasing economic and human interdependence."
FOOTNOTES
* President of the Court of Appeal of New South Wales. Chairman of the Executive Committee of the International Commission of Jurists. Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia.
1. United Nations, Human Rights Committee, Communication No 688/1992. Nicholas Toonen and Australia Doc: CCPR/C/50/D 488/1992 (4 April 1994).
2. H Charlesworth "Protecting Human Rights" (1994) 68 Law Inst J (Vic) 462 at 463.
3. See eg A Funder "The Toonen Case" (1994) 5 Public Law Rev 156.
4. See eg G Selvaner "Gays in Private, the Problems with the Privacy Analysis in Furthering Human Rights" (1994) 16 Adelaide L Rev 331; W Morgan "Protecting Rights or Just Passing the Buck?" (1994) 1 Aust J Human Rights 409.
5. See Dudgeon v United Kingdom (1981) 3 EHRR 40; Monnell and Norris v Ireland (1988) 10 EHRR 205 and Modinos v Cyprus (1993) 16 EHRR 485 (decisions of the European Court of Human Rights). Cf D W Jackson, "Judging Human Rights: The Formative Years of the European Court of Human Rights" (1993) 13 Windsor YB Access J 217, 236.
6. R Dworkin Taking Rights Seriously, 1977, 205.
7. See eg M D Kirby, "The Bill of Rights Debate", Australian Lawyer, vol 29, December 1994, 16.
8. (1992) 175 CLR 1, 42.
9. See M D Kirby, "The Australian Use of International Human Rights Norms" (1991) 16 UNSWLJ 363.
10. See for Amnesty's criticism of Australia (1994) 3 Human Rights Defender, 1.
11. See Australian Senate, Estimates Committee, Hansard, 29 November 1994, 157. See also the tabling by Senator Harradine, on 23 August 1983, of a proposal for a Standing Committee on Treaties, reintroduced on motion in each session since 1983 and the introduction by the Australian Democrats of the Parliamentary Approval of Treaties Bill 1994 (Cth). The Bill would provide a system of Parliamentary disallowance of subscription to treaties disapproved by Parliament. On 21 October 1994, Senator Evans and the Federal Attorney-General (Mr Michael Lavarch) issued a statement reaffirming "the Government's commitment to responsible and transparent treaty making", stating that the Government was "happy to take further steps to strengthen the flow of information to Parliament".
12. See A Twomey, Parliamentary Research Service Bkgrd Paper No 27, 1995 Procedure and Practice of Granting and Implementing International Treaties 9 February 1995, 9. See also Australian Parliament, Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia's Efforts to Promote and Protect Human Rights, AGPS, Canberra, Nov 1994, 47ff.
13. See Commonwealth Parlt Debates 10 May 1961, 1693. This practice should be restored.
------------------------
The Growing Impact of International Law on Australian Domestic Law (Option 1) - Implications for the Procedures of Ratification and Parliamentary Scrutiny
Date: 06
March 1995
Author:
Type:
Organisation: Australian Legal Notes
Publisher: Publisher -
OPTION 1 Author:
Type:
Organisation: Australian Legal Notes
Publisher: Publisher -
AUSTRALIAN LAW JOURNAL
INTERNATIONAL LEGAL NOTES
The growing impact of international law on Australian domestic law. Implications for the procedures of ratification and Parliamentary scrutiny
No Australian lawyer could fail to observe the debate about the growing use of international treaties as a foundation for Federal legislation, expanding the area of Federal law-making into matters hitherto regulated by State law.
In a recent speech, delivered as an Occasional Lecture for the Senate Department of the Australian Parliament, Justice Michael Kirby, who is President of the Court of Appeal of New South Wales but also holds a post as Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia, addressed the expansion of treaty-based law-making. He made a proposal for improving the procedures of Parliamentary scrutiny of treaties before they are ratified, or acceded to, by Australia.
Because of the significance of this debate, extracts adapted from Justice Kirby's lecture follow:
Controversial use of international treaties
"The controversy about the use of treaties to support Australian Federal legislation came to the fore during the passage of the Human Rights (Sexual Conduct) Act 1994 (Cth).1 That measure was designed to give effect to the decision of the Human Rights Committee of the United Nations in the complaint by Mr N Toonen against Australia. Yet that Federal Law was simply the latest of a number, under successive Governments and Parliaments. The quandaries already existed in the 1920s when Federal Parliament enacted the Air Navigation Act to give effect to the ratification, including on behalf of Australia, of the Paris Convention of 1919 regulating international aerial navigation.2 They were certainly there when the Parliament enacted conservation legislation under which the Governor-General, pursuant to the World Heritage Convention3 made regulations protecting an area of national park in Tasmania leading to the Tasmanian Dams Case.4 But there was something about the passion and emotion of the recent debate which called forth the most strongly voiced reservations yet expressed about what was seen by some as a worrying, even undesirable, legislative trend.
Some of the commentary was ill tempered and confused. Yet behind often emotive language lies the expression of serious concern which requires the attention of those who are generally sympathetic to the incoming tide of international human rights law and its influence upon Australia. The noted commentator John Hyde, writing in The Australian said:5
"There is something amiss with a polity that, to achieve its aims, enters treaties with undemocratic committees of the United Nations, ... to overrule the processes by which it itself is governed. This was not the intention of those who drafted the constitution; nor is it the wish of Australians today. ..."
To the same effect were the remarks of Senator Rod Kemp who concluded:6
"Involving UN committees in Australian domestic disputes will inevitably, over time, undermine our own legal institutions. ... Australia's major constitutional problems [are] ... the expansive use of the external affairs power, the ruthless use of ILO and UN treaties to over-ride States and the ceding of sovereignty to foreign committees. The present generation of Australians do not want their laws made in London or at the UN."
The former Prime, Mr Malcolm Fraser, also criticised the process of the use of international conventions:7
"In one case, in December 1992, the Governor-General was asked to ratify a treaty only hours before the dissolution of Parliament. No media release was issued. ... [A]re Australians to be masters of their own affairs or are Australians to give away their sovereignty to United Nations committees? The point become all the more relevant when you look at the membership of these committees. The membership is appointed by governments that often ignore the decisions of the committee and yet Australia binds itself and feels required to obey."
There are similar statements by other Australian politicians and ex-politicians. Not all of them are members of the Coalition side of politics. For example, the former ALP Senator Peter Walsh observed:17
"I am not and never have been a monarchist, but find it ironic that so many contemporary Australians determined to protect us from the non-existent threat of English tyranny, fall over each other in a scramble to surrender Australian sovereignty to a rag-tag and bobtail of unrepresentative United Nations committees, accountable to nobody."
There are undoubtedly questions here for serious reflection. They derive from the democratic and federal nature of our constitution. From our traditional willingness to leave our human rights to be determined, from time to time, by Parliaments elected by our people and upheld by independent courts Australian suspicion is fuelled when the obligation to change Australian law derives from committees of the often inefficient United Nations made up of people whose commitment to the kind of values which Australians generally share is generally thought to be doubtful.
The international perspective
As Special Representative of the Secretary-General for Human Rights in Cambodia I am obliged to report to the Commission on Human Rights in Geneva in March 1995. This post has taken me on five missions to Cambodia. The missions are exhausting and sometimes even a little dangerous. They have to be squeezed into my extremely busy court duties. I see, and report upon, aspects of Cambodian human rights which are discouraging and even depressing. The abiding problems of security. The ever-present reminders of the genocide. The landmines which claim daily victims. The poverty, low expenditure on health and education. The new peril of HIV/AIDS. Corruption. The poor standard of some media and the intolerance of criticism of some government officials. All of these problems I chronicle with, I hope, constructive suggestions for improvements.
But I also report upon the many advances which are made daily in the rebuilding of Cambodia.
My reports on Cambodia must be given twice a year: once in March to the Commission on Human Rights in Geneva and then, in November, to the General Assembly in New York. The experience of doing this is a humbling one. The hall is packed with the great variety of humanity. Virtually every nation on earth and many inter-governmental and international agencies are there. It is, of course, an imperfect place, just as our world is imperfect. Doubtless at the tables sit not a few who have little real commitment to fundamental human rights or whose agenda puts any such concerns below others. But one after another, the UN Special Representatives and Special Rapporteurs are heard. They have complete freedom to speak as they see things. They call dictators and tyrants to account before the bar of the international community and the judgment of humanity. It is the pressure of these almost continuous sessions of international scrutiny of human rights which has helped bring about the fundamental changes we have recently seen in South Africa, in Malawi, in Palestine and elsewhere. It is there that reports are made on particular countries and on abiding themes of importance to global human rights. Pressure is applied to countries such as Cuba, China, Haiti, Iran, Iraq, Sudan, Afghanistan, Burma and the states of the former Yugoslavia. Once, in the name of "sovereignty", they would have ignored such pressure. In front of the world community that is now impossible.9
Pressure is also applied to Equatorial Guinea, to Indonesia in respect of East Timor, to Papua-New Guinea in respect of Bougainville, to India and Pakistan in respect of Kashmir, to China in respect of Tibet. Pressure is even applied to Australia in respect of our long neglected Aboriginal people. Of course, the pressure sometimes fails. Immediately following my last report on Cambodia, the Rapporteur on Sudan was denounced by the government of that country. But the important point is that the representative of Sudan was obliged to answer to the world and to very specific criticisms.
The lesson of recent decades is that this requirement may eventually have a beneficial effect. It gives a voice to the oppressed. It lifts the hopes of those who would otherwise be without hope. In the one big room, the essential inter-dependence and ultimate unity of humanity is brought home to all. In a world of jumbo-jets, of instantaneous telecommunications, of global environmental hazards and of AIDS we are forced to see human rights as it is: a cause of international concern. Doubtless it has many inefficiencies and weaknesses. But it grew out of the awful revelations of the last World War and the detonation of the atomic bomb at Hiroshima. International peace and security were seen as interrelated with human rights. International Security would have no lasting reality unless built on universal respect for fundamental rights. So long as that is not assured, the world will continue to be an angry and a dangerous place.
We in Australia cannot be entirely cut off from the international moves for the protection of universal human rights. Our continent is part of the world. The thought that we can shut out the influence of this global development of such potential for the coming millennium is as unrealistic as it is unworthy.10
The Australian path of gradualism
Some, at least, of the concerns that have been voiced by the commentators about the growing influence of international human rights principles upon our law can, I think, be adequately answered:
1. The international committees which are frequently criticised stand in an entirely different relationship to the Australian legal system than the Privy Council in London did. By our constitution, the Privy Council was part of the Australian judicial hierarchy. No United Nations committee and no international court has the same power. So far as the committees are concerned, their decisions derive only from the power which we, as a nation, have accorded them. Their decisions are not self-executing. As in the case of the decision of the UN Human Rights Committee on the complaint of Mr Toonen against the Tasmanian laws,11 the decision is only translated into action in Australia by the authority of an Australian law-maker. The Sexual Conduct Act rests upon a decision, duly debated, of the Australian Parliament. No Australian law was changed, as such, by the decision of the United Nations committee;
2. The United Nations committee has, it is true, members from a number of states which do not share all of our perspectives on human rights. But the members of the committee are elected for their individual expertise. When serving, they do not act as representatives of their country but in a personal capacity. They must make a solemn and public declaration to that effect. The Toonen decision was unanimous. This suggests that, even in a matter as controversial in some countries as the rights of homosexuals, nationality and legal tradition had little final influence.12 The decision of the committee may be criticised on its merits, as it has been, by experts in international law who think that it went too far13 or not far enough.14 Some criticism was directed to the inability of Tasmania, as such, to be heard directly by the committee. But that was simply the result of the fact that, by the Australian constitution, the Commonwealth is the international representative of Australia. In fact, the Federal authorities consulted Tasmania. Extracts from Tasmania's submissions were included in the Australian statements to the committee. But rejected;
3. The notion that Tasmania's democratically elected Parliament should have the right to over-ride fundamental rights, globally declared and relevantly held applicable, begs an important question. It would have been preferable for the people of Tasmania, through their Parliament, to have accepted the justice of repealing the sections of the Tasmanian Criminal Code which threatened to punish, and which stigmatised Mr Toonen, and other homosexual and bisexual men and occasioned the complaint. There is now an Australia-wide legal standard on this matter. A distinguished international human rights court had earlier declared what fundamental respect for human rights required of the law on this subject.15 Scientific enlightenment had made it clear that to punish or stigmatise a person on the grounds of sexual orientation is as wrong as to do so on the ground of gender or race and as irrational as to do so on the basis of left-handedness. Tasmania has an unusual electoral system. The prospect of a change of mind in the Upper House seemed remote, at least in the short term.
Australia's international obligations have been declared. It was either to ignore the declaration and justify it by reference to its constitution and politics - or it was obliged to act to fulfil the obligation it had accepted;
4. The democratic argument, and the complaint about loss of "sovereignty" have an undoubted appeal. But it is increasingly recognised that democracy is not simple majoritarian votes. Democracy, as it is now practised, is a system of government which accords power to persons elected by the majority of citizens upon the condition that they will respect the fundamental rights and dignity of minorities. Professor Ronald Dworkin has explained that human rights are promises to minorities that their dignity and equality be respected by the majority.16 It seems unlikely that Australians would accept a State law which criminally punished people because they were of Jewish or Chinese ethnicity or because they were women or because their skin was dark. Seen in this light, the limits of democracy are reached. Far from being a surrender of "sovereignty", measures taken to uphold minority rights, authoritatively declared by an expert international committee, may be seen as an exercise of sovereignty. To talk of "sovereign States", or for that matter "the sovereign Federation", is to indulge in metaphors which are not sustained by the Australian Constitution as it has been interpreted. Australia's is a complex sovereignty. In 1901 it divided up great power by adopting the Federal system of government. It did not adopt the other means of dividing power by an entrenched, written, bill of rights although this is now being reconsidered.17
5. A little known change which has come about in recent years parallels the passage of legislation through Parliament to give effect to international standards. This is the impact of international human rights jurisprudence upon Australia's court decisions. As Justice Brennan pointed out in Mabo18 it is inevitable that, over time, the influence of the International Covenant on Civil and Political Rights will be brought to bear upon the perception by Australian judges of what judge-made law requires. If there is a gap in the common law, or if a statute is ambiguous, it is inevitable and right that Australian courts should fill the gap, or resolve the ambiguity, by reference to any applicable international rule. Better that the judge should do this than rely upon personal, idiosyncratic values or upon distant analogies from earlier, different times. This is simply the next natural phase in the development of the Australian common law as it adapts to the world of internationalism. Fortunately, our system of law has a never-ending capacity to respond to new problems and to adapt sensible solutions from new sources;19 and
6. For those who say that Australia has nothing to learn from these international developments, which may be useful enough to the poor people of Cambodia and to the oppressed in Cuba, Sudan, Burma and elsewhere, history denies it. In the matter of the human rights of homosexuals, the statute law stood as an oppression to that section of our community in all parts of Australia for more than a hundred years. It still remains on the statute books of Tasmania. In hindsight, what is remarkable is not that these things were changed, but that they lasted so long.20 It is also notable that Australia enjoyed one hundred and fifty years of elected, representative government and not a single Parliament of this nation saw fit to reverse the manifest fiction that Australia was terra nullius when the settlers arrived. It was left to the High Court of Australia in Mabo to shatter the fiction and propel our country to a juster law. In this way Australians, through their constitutional government, strive toward enlightenment. Sole reliance upon the democratic assemblies may not always ensure that respect is accorded to the fundamental rights of minorities. Occasionally, an external stimulus is useful. One such stimulus in today's world is international human rights law. The instruments of stimulus include such bodies as the UN Human Rights Committee, the International Penal Tribunal just established including Sir Ninian Stephen, the UN Commission on Human Rights and the Special Representatives and Special Rapporteurs, of whom I am one. We should see these instruments as a natural development of the history of our planet to which Australia has an obligation, and a privilege, to contribute.
Lessons for the future
The concerns of many Australians about respect for democracy, the preservation of the Federal compact and local responsibility for human rights matters must not be lightly dismissed. They are views sincerely held, strongly argued and they have a foundation which is legitimate. How can we reconcile what seems to be the natural tide of history, one that is often, if not usually, beneficial, with the constitution of this country drawn up for utterly different international circumstances and for a significantly different Australian people?
The Minister for Foreign Affairs (Senator Evans) who has done a great deal to support the United Nations work in human rights has rejected the proposal that Australia's ratification of international treaties should be submitted to Parliamentary approval. To Senator Kemp's rhetoric "We could not have the people at all involved in this", Senator Evans told an Estimates Committee bluntly, "Dead right". Later Senator Evans, before an Estimates Committee, agreed that treaties would be tabled in Parliament before action is taken to adhere to them.21
It is certainly our tradition that the Executive Government, succeeding to the prerogative powers of the Crown, has reserved to itself the right, and the duty, to subscribe to international treaties in the name of Australia. There are arguments for persisting with this tradition. Not the least of these is the frequent need for Australia to act swiftly and with a single voice in matters of international concern. Procedures have been introduced for consultation on new treaties with State Governments and, where relevant, with industry and community groups. This is a beneficial development. The question is whether it has gone far enough
Some important treaties have been ratified with little Parliamentary or public debate. The Government's action of depositing the instrument of accession to the First Optional Protocol to the ICCPR before the tabling of the instrument in Parliament was described as "extraordinary" ... "without any public debate or even public awareness of its existence, let alone its scope and significance".22 The growing body of treaty law has an increasing impact on Australian law. It therefore seems legitimate, in some way, now to involve the national Parliament in the superintendence of Executive action in respect of treaties. The old rule may have been apt for a time when international law was in its infancy. But nowadays, in economic matters as well as those relevant to human rights, the growth of international treaty law is extremely significant and growing even more important. In 1961 Prime Minister Menzies announced that, in general, the Australian Government would not proceed to ratify or accede to a treaty until it had lain on the table of both Houses of Federal Parliament for twelve sitting days.23 Whilst the politics of resistance to Parliamentary scrutiny are understandable and I would regret a move to the United States requirement of advice and consent of the legislature, which has proved such a reinforcement of isolationism, there is surely an intermediate position. Parliamentary scrutiny is not the same as Parliamentary approval. Scrutiny could be part of the larger function of raising Australian awareness of the growing body and importance of international law. As that law comes to sustain Australian statutes (such as the Sexual Conduct Act), Australian Executive action (such as the Tasmanian Dams regulations) and Australian court decision (such as, in part, Mabo), it is appropriate that the actions of the Federal Executive in ratifying treaties should be assisted by the consideration of the representatives of the Australian people. I do not believe that Australians favour an isolationist country. Still less do I believe that they are unaware of the important moves which I have described, in the international community, for the better protection of human rights everywhere. The Australian people can be trusted, as can their representatives in Parliament, to understand that it is possible to reconcile our Federal constitution and the growing province of international law. In their genius, the Founders provided the means to do so. It takes legislators and judges of understanding to ensure that the constitution continues to serve Australia and its people in a time when human rights, like so much else, assumes an expanding international dimension.
The external affairs power in the Australian constitution appears, both by express terms and by its location in the document, are an element of a constitution which is Federal in its basic character. Although the grant of power is large indeed, it is not uncontrolled. It is the function of successive Parliaments and of the High Court, to chart the boundaries of the power in new circumstances. Amongst the new circumstances are the growing sense of national identity of Australians, the changing role of Australia in its region and in the world, the changing features of international law and the role of the United Nations and other international or regional bodies. To say this is simply to say that our constitution adapts to the changing nation and world in which it must operate. We have institutions, working in constant symbiosis, which provide the solutions for changing times. Should these solutions sometimes prove unacceptable we have the remedy in our own hands. Those who enjoy the temporary responsibility of exercising power in Australia should not forget the Federal character of the constitution. That character itself protects our freedoms. But they should also have a view of our changing world and a vision of the future so that they see Australia as it is - part of a world of increasing economic and human interdependence."
FOOTNOTES
* President of the Court of Appeal of New South Wales. Chairman of the Executive Committee of the International Commission of Jurists. Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia.
1. See eg (1994) 3 Human Rights Defender 1; (1994) 5 HIV/AIDS Legal Link 1.
2. See The King v Burgess (1936) 55 CLR 608.
3. Convention for the Protection of the World Cultural and Natural Heritage (UNESCO).
4. See The Commonwealth v Tasmania (1983) 158 CLR 1. (The Tasmanian Dams Case).
5. 2 September 1994.
6. R Kemp "Let's Make our Own Laws" Herald Sun, 30 August 1994, 15.
7. M Fraser "UN Poses Biggest Threat to our Sovereignty", The Australian, 17 August 1994. Contrast E G Whitlam, "National and International Maturity" (1992) 46 Aust J Interntl Affairs 29.
8. P Walsh cited in M Fraser op cit n 7.
9. See Commentary, "The United Nations Commission on Human Rights: 50th Session" (1994) 52 The Review (ICJ), 66.
10. A F Bayefsky, "Making the Human Rights Treaties Work" in L Henkin and J L Hargrove (eds) Rights: An Agenda for the Next Century, ASIL, Washington DC, 1994.
11. United Nations, Human Rights Committee, Communication No 688/1992. Nicholas Toonen and Australia Doc: CCPR/C/50/D 488/1992 (4 April 1994).
12. H Charlesworth "Protecting Human Rights" (1994) 68 Law Inst J (Vic) 462 at 463.
13. See eg A Funder "The Toonen Case" (1994) 5 Public Law Rev 156.
14. See eg G Selvaner "Gays in Private, the Problems with the Privacy Analysis in Furthering Human Rights" (1994) 16 Adelaide L Rev 331; W Morgan "Protecting Rights or Just Passing the Buck?" (1994) 1 Aust J Human Rights 409.
15. See Dudgeon v United Kingdom (1981) 3 EHRR 40; Monnell and Norris v Ireland (1988) 10 EHRR 205 and Modinos v Cyprus (1993) 16 EHRR 485 (decisions of the European Court of Human Rights). Cf D W Jackson, "Judging Human Rights: The Formative Years of the European Court of Human Rights" (1993) 13 Windsor YB Access J 217, 236.
16. R Dworkin Taking Rights Seriously, 1977, 205.
17. See eg M D Kirby, "The Bill of Rights Debate", Australian Lawyer, vol 29, December 1994, 16.
18. (1992) 175 CLR 1, 42.
19. See M D Kirby, "The Australian Use of International Human Rights Norms" (1991) 16 UNSWLJ 363.
20. See for Amnesty's criticism of Australia (1994) 3 Human Rights Defender, 1.
21. See Australian Senate, Estimates Committee, Hansard, 29 November 1994, 157. See also the tabling by Senator Harradine, on 23 August 1983, of a proposal for a Standing Committee on Treaties, reintroduced on motion in each session since 1983 and the introduction by the Australian Democrats of the Parliamentary Approval of Treaties Bill 1994 (Cth). The Bill would provide a system of Parliamentary disallowance of subscription to treaties disapproved by Parliament. On 21 October 1994, Senator Evans and the Federal Attorney-General (Mr Michael Lavarch) issued a statement reaffirming "the Government's commitment to responsible and transparent treaty making", stating that the Government was "happy to take further steps to strengthen the flow of information to Parliament".
22. See A Twomey, Parliamentary Research Service Bkgrd Paper No 27, 1995 Procedure and Practice of Granting and Implementing International Treaties 9 February 1995, 9. See also Australian Parliament, Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia's Efforts to Promote and Protect Human Rights, AGPS, Canberra, Nov 1994, 47ff.
23. See Commonwealth Parlt Debates 10 May 1961, 1693. This practice should be restored.
...............................................
The Growing Impact of International Law on Australian Domestic Law (Option 2) - Implications for the Procedures of Ratification and Parliamentary Scrutiny
Date: 03
November 1994
Author:
Type: test
Organisation: Australian Law Journal - International Legal Notes
Publisher:-
Author:
Type: test
Organisation: Australian Law Journal - International Legal Notes
Publisher:-
AUSTRALIAN LAW JOURNAL
INTERNATIONAL LEGAL NOTES
The growing impact of international law on Australian domestic law. Implications for the procedures of ratification and Parliamentary scrutiny
No Australian lawyer could fail to observe the growing debate about the use of international treaties as a foundation for Federal legislation, expanding the area of Federal law-making into matters hitherto regulated by State law.
In a recent speech, delivered as an Occasional Lecture for the Senate Department of the Australian Parliament, Justice Michael Kirby, who is President of the Court of Appeal of New South Wales but also holds a post as Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia, addressed the expansion of treaty-based law-making. He made a proposal for improving the procedures of Parliamentary scrutiny of treaties before they are ratified, or acceded to, by Australia.
Because of the significance of this debate, extracts adapted from Justice Kirby's lecture follow. After listing criticisms of Federal use of human rights treaties, voiced by commentators of different political affiliation in Australia, Justice Kirby went on to explain the likely continuation of this process, indeed its expansion. He then proposed improved Parliamentary arrangements to ensure the proper democratic scrutiny of treaties before ratification or accession by Australia.
Inevitable and beneficial impact of international law
"The following are reasons why some of the criticisms of the growing use of treaties in Federal law-making in Australia should be seen as inevitable and potentially beneficial:
1. The international committees which are frequently criticised stand as a source of international legal obligations in an entirely different relationship to the Australian legal system than the Privy Council in London did. By our constitution, the Privy Council was part of the Australian judicial hierarchy. No United Nations committee and no international court has the same power. So far as the committees are concerned, their decisions derive only from the power which we, as a nation, have accorded them. Their decisions are not self-executing. As in the case of the decision of the UN Human Rights Committee on the complaint of Mr Toonen against the Tasmanian laws,1 the decision is only translated into action in Australia by the authority of an Australian law-maker. The Human Rights (Sexual Conduct Act) 1994 (Cth) rests upon a decision, duly debated, of the Australian Parliament. No Australian law was changed, as such, by the decision of the United Nations committee;
2. The United Nations committee has, it is true, members from a number of states which do not share all of our perspectives on human rights. But they are states of the world we live in. The members of the committee are elected for their individual expertise. When serving, they do not act as representatives of their country but in a personal capacity. They must make a solemn and public declaration to that effect. The Toonen decision was unanimous. This suggests that, even in a matter as controversial in some countries as the rights of homosexuals, nationality and legal tradition had little final influence.2 The decision of the committee may be criticised on its merits, as it has been, by experts in international law who think that it went too far3 or not far enough.4 Some criticism was directed to the inability of Tasmania, as such, to be heard directly by the committee. But that was simply the result of the fact that, by the Australian constitution, the Commonwealth is the international representative of Australia. In fact, the Federal authorities consulted Tasmania. Extracts from Tasmania's submissions were included in the Australian statements to the committee. But rejected;
3. The notion that Tasmania's democratically elected Parliament should have the right to over-ride fundamental rights, globally declared and relevantly held applicable, begs an important question. It would have been preferable for the people of Tasmania, through their Parliament, to have accepted the justice of repealing the sections of the Tasmanian Criminal Code which threatened to punish, and which stigmatised Mr Toonen, and other homosexual and bisexual men. There is now an Australia-wide legal standard on this matter. International human rights courts had earlier declared what fundamental respect for human rights required of the law on this subject.5 Scientific enlightenment had made it clear that to punish or stigmatise a person on the grounds of sexual orientation is as wrong as to do so on the ground of gender or race and irrational as to do so on the basis of left-handedness. But Tasmania has an unusual electoral system. The prospect of a change of mind in the Upper House seemed remote, at least in the short term. Australia's international obligations have been declared. It was either to ignore the declaration and justify it by reference to its constitution and politics - or it was obliged to act to fulfil the duty it had accepted;
4. The democratic argument, and the complaint about loss of "sovereignty" have an undoubted appeal. But I think it is increasingly recognised that democracy is not simple majoritarian votes. Democracy, as it is now practised, is a system of government which accords power to persons elected by the majority of citizens but upon the condition that they will respect the fundamental rights and dignity of minorities. Professor Ronald Dworkin has explained that human rights are promises to minorities that their dignity and equality be respected by the majority.6 It seems unlikely to me that Australians would accept a State law that criminally punished people because they were of Jewish or Chinese ethnicity or because they were women or because their skin was dark. Seen in this light, the limits of democracy are reached. Far from being a surrender of "sovereignty", measures taken to uphold minority rights, authoritatively declared by an expert international committee, may be seen as an exercise of sovereignty. To talk of "sovereign States", or for that matter "the sovereign Federation", is to indulge in metaphors which are not sustained by the Australian Constitution as it has been interpreted. Australia's is a complex sovereignty. In 1901 it divided up great power by adopting the Federal system of government. Yet it did not adopt the other means of dividing power by an entrenched, written, bill of rights.7
5. A little known change that has come about in recent years parallels the passage of legislation through Parliament to give effect to international standards. This is the impact of international human rights jurisprudence upon Australia's court decisions. As Justice Brennan pointed out in Mabo8 it is inevitable that, over time, the influence of the International Covenant on Civil and Political Rights will be brought to bear upon the perception by Australian judges of what judge-made law requires. If there is a gap in the common law, or if a statute is ambiguous, it is both inevitable and right that Australian courts, in today's world, should fill the gap, or resolve the ambiguity, by reference to any applicable international rule. Better that the judge should do this than rely upon personal, idiosyncratic values or upon distant analogies. This is simply the next natural phase in the development of the Australian common law as it adapts to the world of internationalism. Fortunately, our system of law has a never-ending capacity to respond to new problems and to adapt sensible solutions from new sources;9 and
6. For those who say that Australia has nothing to learn from these international developments, which may be useful enough to the poor people of Cambodia and to the oppressed in Cuba, Sudan, Burma and elsewhere, the response comes back. Recent history denies it. In the matter of the human rights of homosexuals, the law stood as an oppression to that section of our community in all parts of Australia for more than a hundred and fifty years. It still remains on the statute books of Tasmania. In hindsight, what is remarkable is not that these things were changed, but that they lasted so long.10 It is also notable that Australia enjoyed one hundred and fifty years of elected, representative government and not a single Parliament of this nation saw fit to explode the manifest fiction that Australia was terra nullius when the settlers arrived. It was left to the High Court of Australia in Mabo to shatter the fiction and propel our country to a juster law. This is the way Australians, through their constitutional government, strive toward enlightenment. Sole reliance upon the democratic assemblies may not always ensure that respect is accorded to the fundamental rights of minorities. Occasionally, an external stimulus is useful. One such stimulus in today's world is international human rights law. The instruments of stimulus include such bodies as the UN Human Rights Committee, the International Penal Tribunal just established and including Sir Ninian Stephen, the UN Commission on Human Rights and the team of Special Representatives and Special Rapporteurs, of whom I am one. We should see these instruments as a natural development of the history of our planet to which Australia has an obligation, and a privilege, to contribute.
Lessons for the future
This said, the concerns of many Australians about respect for democracy, the preservation of the Federal compact and local responsibility for human rights matters must not be lightly dismissed. They are views sincerely held, strongly argued and they have a foundation which is legitimate.
How can we reconcile what seems to be the natural tide of history, one that is often, if not usually, beneficial, with the constitution of this country drawn up for utterly different international circumstances and for a significantly different Australian people? That is a challenge which is before us now.
The Minister for Foreign Affairs (Senator Evans) who has done a great deal to support the United Nations work in human rights has rejected the proposal that Australia's ratification of international treaties should be submitted to Parliamentary approval. "No way, José" was his response to this proposal, when made by Senator Rod Kemp. To Senator Kemp's rhetoric "We could not have the people at all involved in this", Senator Evans told an Estimates Committee bluntly, "Dead right". Later Senator Evans, before an Estimates Committee, agreed that treaties would be tabled in Parliament before action is taken to adhere to them. This was described as a "sort of halfway José.11
It is certainly our tradition that the Executive Government, succeeding to the prerogative powers of the Crown, has reserved to itself the right, and the duty, to subscribe to international treaties in the name of Australia. There are arguments for persisting with this tradition. Not the least of these is the frequent need for Australia to act swiftly and with a single voice in matters of international concern. Procedures have been introduced for consultation on new treaties with State Governments and, where relevant, with industry and community groups. This is a beneficial development. The question is whether it has gone far enough.
Some important treaties have been ratified with little Parliamentary or public debate.12 The Government's action of depositing the instrument of accession to the First Optional Protocol to the ICCPR before the tabling of the instrument in Parliament was described as "extraordinary" ... "without any public debate or even public awareness of its existence, let alone its scope and significance". The growing body of treaty law has an increasing impact on Australian law. It therefore seems legitimate, in some way, now to involve the national Parliament in the superintendence of Executive action in respect of treaties. The old rule may have been apt for a time when international law was in its infancy. But nowadays, in economic matters as well as those relevant to human rights, the growth of international treaty law is extremely significant and growing even more important. In 1961 Prime Minister Menzies announced that, in general, the Australian Government would not proceed to ratify or accede to a treaty until it had lain on the table of both Houses of Federal Parliament for twelve sitting days.13 Whilst I fully understand the politics of resistance to Parliamentary scrutiny and would regret a move to the United States requirement of advice and consent of the legislature, which has proved such a reinforcement of isolationism, there is surely an intermediate position. Parliamentary scrutiny is not the same as Parliamentary approval. Scrutiny could be part of the larger function of raising Australian awareness of the growing body and importance of international law. As that law comes to sustain Australian statutes (such as the Sexual Conduct Act), Australian Executive action (such as the Tasmanian Dams regulations) and Australian court decision (such as, in part, Mabo), it is appropriate that the actions of the Federal Executive in ratifying treaties should be assisted by the consideration of the representatives of the Australian people. I do not believe that Australians favour an isolationist country. Still less do I believe that they are unaware of the important moves which I have described, in the international community, for the better protection of human rights everywhere. The Australian people can be trusted as can their representatives in Parliament, to understand that it is possible to reconcile our Federal constitution and the growing province of international law. In their genius, the Founders provided the means to do so. It takes legislators and judges of understanding to ensure that the constitution continues to serve Australia and its people in a time when human rights, like so much else, assumes an expanding international dimension.
The external affairs power in the Australian constitution appears, both by express terms and by its location in the document, are an element of a constitution which is Federal in its basic character. Although the grant of power is large indeed, it is not uncontrolled. It is the function of successive Parliaments and of the High Court, to chart the boundaries of the power in new circumstances. Amongst the new circumstances are the growing sense of national identity of Australians, the changing role of Australia in its region and in the world, the changing features of international law and the role of the United Nations and other international or regional bodies. To say this is simply to say that our constitution adapts to the changing nation and world in which it must operate. We have institutions, working in constant symbiosis, which provide the solutions for changing times. Should these solutions sometimes prove unacceptable we have the remedy in our own hands. Those who enjoy the temporary responsibility of exercising power in Australia should not forget the Federal character of the constitution. That character itself protects our freedoms. But they should also have a view of our changing world and a vision of the future so that they see Australia as it is - part of a world of increasing economic and human interdependence."
FOOTNOTES
* President of the Court of Appeal of New South Wales. Chairman of the Executive Committee of the International Commission of Jurists. Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia.
1. United Nations, Human Rights Committee, Communication No 688/1992. Nicholas Toonen and Australia Doc: CCPR/C/50/D 488/1992 (4 April 1994).
2. H Charlesworth "Protecting Human Rights" (1994) 68 Law Inst J (Vic) 462 at 463.
3. See eg A Funder "The Toonen Case" (1994) 5 Public Law Rev 156.
4. See eg G Selvaner "Gays in Private, the Problems with the Privacy Analysis in Furthering Human Rights" (1994) 16 Adelaide L Rev 331; W Morgan "Protecting Rights or Just Passing the Buck?" (1994) 1 Aust J Human Rights 409.
5. See Dudgeon v United Kingdom (1981) 3 EHRR 40; Monnell and Norris v Ireland (1988) 10 EHRR 205 and Modinos v Cyprus (1993) 16 EHRR 485 (decisions of the European Court of Human Rights). Cf D W Jackson, "Judging Human Rights: The Formative Years of the European Court of Human Rights" (1993) 13 Windsor YB Access J 217, 236.
6. R Dworkin Taking Rights Seriously, 1977, 205.
7. See eg M D Kirby, "The Bill of Rights Debate", Australian Lawyer, vol 29, December 1994, 16.
8. (1992) 175 CLR 1, 42.
9. See M D Kirby, "The Australian Use of International Human Rights Norms" (1991) 16 UNSWLJ 363.
10. See for Amnesty's criticism of Australia (1994) 3 Human Rights Defender, 1.
11. See Australian Senate, Estimates Committee, Hansard, 29 November 1994, 157. See also the tabling by Senator Harradine, on 23 August 1983, of a proposal for a Standing Committee on Treaties, reintroduced on motion in each session since 1983 and the introduction by the Australian Democrats of the Parliamentary Approval of Treaties Bill 1994 (Cth). The Bill would provide a system of Parliamentary disallowance of subscription to treaties disapproved by Parliament. On 21 October 1994, Senator Evans and the Federal Attorney-General (Mr Michael Lavarch) issued a statement reaffirming "the Government's commitment to responsible and transparent treaty making", stating that the Government was "happy to take further steps to strengthen the flow of information to Parliament".
12. See A Twomey, Parliamentary Research Service Bkgrd Paper No 27, 1995 Procedure and Practice of Granting and Implementing International Treaties 9 February 1995, 9. See also Australian Parliament, Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia's Efforts to Promote and Protect Human Rights, AGPS, Canberra, Nov 1994, 47ff.
13. See Commonwealth Parlt Debates 10 May 1961, 1693. This practice should be restored.
Australian Capital Territory
HUMAN
RIGHTS OFFICE
Level 12, 14 Moore Street GPO Box 158Canberra City 2601 CANBERRA ACT 2601
TTY: (02) 62070525 Tel: (02) 62070576
ACT Government Homepage: http://www.act.gov.au Fax: (02) 62070587
Mr Jon Stanhope, MLA
Chief Minister and Attorney-General
ACT Legislative Assembly
GPO Box 1020
CANBERRA ACT 2601
Dear Mr Stanhope,
Re: Council of Australian Government’s meeting - potential human rights implications of proposed measures to strengthen counter terrorism laws.
Thank you for your request of 9 September 2005 to advise you about some of the potential human rights implications of the Prime Minister’s proposals on counter terrorism, as announced in his media release of 8 September 2005. My short advice is that, depending on the detail, such laws if enacted in the ACT could potentially contravene the Human Rights Act 2004 ACT (HR Act) in a number of significant ways, particularly in regard to the rights to liberty, fair trial and privacy. A number of the proposals are preventive in nature, meaning that the executive may bypass many ordinary criminal law procedures and protections to varying degrees.
The proposals are designed to enable better deterrence, prevention, detection and prosecution of terrorist acts, and some have been developed as a result of reviews following the recent London bombings. In all instances the central question is whether the means suggested are proportionate to the legitimate objectives of protecting the Australian community from terrorism. This can only be properly assessed when the draft legislation is available.
As there is not sufficient time to respond to all of the 12 different proposals, comments are concentrated on two proposed areas for the exercise of ACT powers, preventive detention of up to 14 days and increased police powers to stop, question and search based on suspicion of terrorist activities in non-Commonwealth areas, and two of the most significant proposals within Commonwealth jurisdiction, namely control orders (which rely on referral of powers from States) and the new offence of inciting violence to replace the offence of sedition. The proposed legislation will add to the existing anti-terrorist amendments to laws passed between 2002 and 2004.1 As these proposals only relate to current terrorist threats they should be subject to sunset clauses, as is the case with new ASIO powers. Some of the objections referred to in my advice to you of 30 August 2004 about the Anti-terrorism Act (No. 2) 2004 still remain - if these provisions were enacted in the ACT, they would contravene several provisions in the HR Act, particularly the right to freedom of association.
General implications of anti terrorism legislation at ACT and Commonwealth levels
Terrorism is a matter of international concern and has been the subject of debate in the United Nations. Paragraph 6 of the UN Security Council Resolution 1456 of 2003 clearly states that States Parties ‘must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt measures in accordance with international law, in particular international human rights, refugee, and humanitarian law’. The former UN High Commissioner for Human Rights, Mary Robinson, issued a statement setting out criteria for protecting human rights in the context of implementing anti-terrorism measures, and recommended that laws use precise criteria and not confer unfettered executive discretion. These principles require that restrictions be:
- prescribed by law (that is, they are not arbitrary in substance);
- necessary for public security or public order (there is a pressing social need);
- not impair the essence of the right;
- necessary in a democratic society (they are a product of consensus);
- in conformance with the principle of proportionality;2
- appropriate to achieve that aim;
- the least intrusive means to achieve the aim of the measures;
- respectful of the principle of non-discrimination; and
- not arbitrarily applied.3
Governments have a positive obligation to take measures necessary within their jurisdiction to protect individual lives against terrorist acts (article 6(1) of the ICCPR, and s.9 (1) of the ACT HR Act). If current laws are inadequate to provide this protection against the actual level of risk, then additional laws should be enacted to protect against the current threat for a limited time period. All counter-terrorism measures must operate within a human rights framework, which imposes certain basic requirements in addition to the points above. For example, they must respect the basic principles of a fair trial, be subject to proper judicial supervision, and must not involve torture, or use information or intelligence that is the product of torture.6 There is no suggestion that the proposals involve techniques that have been held by courts to amount to inhuman treatment.7
The Council of Europe and the International Commission of Jurists (ICJ) have also produced Guidelines and Recommendations of anti-terrorism laws.8 Article 3 of the ICJ’s Berlin Declaration states that:
‘States should avoid the abuse of
counter-terrorism measures by ensuring that persons suspected of involvement in
terrorist acts are only charged with crimes, which are strictly defined by law
that are not retroactive, and in conformity with the principle of legality (nullum
crimen sine lege).9
States may not apply criminal law retroactively. They may not criminalise the
lawful exercise of fundamental rights and freedoms. Criminal responsibility for
acts of terrorism must be individual, not collective. In combating terrorism,
states should apply, and where necessary adapt, existing criminal laws rather
than create new, broadly defined offences or resort to extreme administrative
measures, especially those involving deprivation of liberty.’
ACT JURISDICTION
Preventative detention
The proposal seeks the cooperation of Territories and States to enact legislation providing for 14 days of preventative detention of persons concerned with the commission of terrorist offences in order to prevent terrorist attacks and further incidents (including escalation of), as well as to prevent suspects absconding or destroying evidence. The threshold issue is whether the person is ‘reasonably suspected’ of having just committed, might be committing or might be about to commit a terrorist offence – these criteria are very broad, like the ones discussed below in relation to police stop, search and seizure powers. This proposal is modelled on the UK power to detain terrorist suspects for 14 days in exceptional circumstances. It is differs from existing Federal powers under which people who are not terrorist suspects can be detained for the purpose of questioning, eg a university student was interviewed by ASIO after borrowing library books for his research on terrorism.12
It appears that this proposed administrative detention is without arrest, charge or trial. Authorisation of detention is to be by a senior police officer and must be reviewed by an independent person after 24 hours. However, it is unclear whether there will be rights to legal representation, and judicial authorisation or review. The main accountability mechanisms for the regime are overview by the Ombudsman and Inspector-General of Security, as well as an annual reporting process, which in my view are not adequate to fully protect human rights. The Commonwealth recognises that to extend detention beyond the 48 hours under current law would be a ‘penalty’, and under the doctrine of separation of powers in the Australian Constitution, this requires a judicial rather than an administrative process. It appears this is the reason the Commonwealth government seeks the States’ and Territories’ cooperation. It has been suggested by a journalist that it is also beyond the powers of the Territory to enact such legislation for the same constitutional reason,13 but I am not confident that this view is correct and suggest that you seek expert constitutional legal advice on the plenary Territories powers.14
I believe that a provision allowing detention for 14 days preventative detention without charge or arrest, and possibly without access to a court and a lawyer is contrary to the right to liberty in s.18 of the ACT HR Act. Subsection 18(6) specifically states that anyone deprived of liberty by detention must have access to judicial review as s/he is: ‘entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful’. This right of access to a court does not need to be performed ex officio by the State, but is up to the detainee to instigate, for example through a writ of habeas corpus. This right includes access to a lawyer in order to test the lawfulness of detention. The Human Rights Committee found a breach of Article 9(4) (the equivalent section to s.18 (6) of the ACT HR Act) in Hammel v Madagascar where a detainee was held incommunicado for three days without access to a lawyer.15 The cases Berry v Jamaica and A v Australia also clearly find that there is a right of access to a lawyer under Article 9(4).16 The European Court of Human Rights also establishes that there is a right of access to a lawyer to enable effective application for release from detention.17
There is little jurisprudence on the exact time period of detention allowed before being taken before a judge. The European Court of Human Rights held in Brogan v UK that detention for 4 days and six hours under the UK Prevention of Terrorism (Temporary Measures) Act 1984 breached article 5(3) of the European Convention on Human Rights.18
In general comments the Human Rights Committee, which monitors compliance with the ICCPR, has clarified that use of preventive detention for public security reasons must still comply with the obligations in article 9 (s.18 of the HR Act): it must not be arbitrary, it must be based on grounds and procedures established by law, information on the reasons must be given, and court control of the detention must be available.19
The common law does not sanction preventative detention. As an exercise of judicial power ‘citizens enjoy… at least in times of peace a constitutional immunity from being imprisoned… except pursuant to an order of the court in the exercise of the judicial power of the Commonwealth’.20 At the ACT level a breach of s.18(6) of the HR Act would need to proportionate under s.28 in order to be valid (see Appendix on s.28).
In the 1970s Northern Ireland used preventive detention, known as ‘internment’, where suspected terrorists were unlikely to be convicted by a criminal court, partly because of widespread fear and intimidation of witnesses, which is not the case in Australia.21 However, the antagonism of the community caused by internment was regarded as a strong motivation in recruiting new Irish Republican Army members.22 It would be paradoxical for suspects to be detained without trial, while persons properly charged with terrorism offences on the basis of stronger evidence have the full benefits of the right to a fair trial.
The government must show that the legitimate objective of protecting the community from danger is proportionate to the degree of harm could not be achieved by alternative means that involved less restriction on the right to liberty. The period of 14 days detention is too long and an alternative should be considered, such as lesser periods that may be renewed, but all of which at least are subject to judicial authorisation or review. For these reasons I do not consider it likely that the breach of s.18 (6) would be proportionate under s.28.
Extending police powers in non-Commonwealth areas
The three terms, where there are reasonable grounds for suspecting that a person ‘might have just committed, might be committing or might be about to commit a terrorism offence’ lack precision, and the third is particularly loose, to the extent that they may be classified as arbitrary. Also the Human Rights Committee has made adverse comments in Concluding Observations about laws in Ireland enabling the arbitrary arrest of a person ‘on suspicion of being about to commit an offence’.23
The main human rights engaged by stop, search and seizure powers are the right to privacy and reputation (s.12), the right to freedom of expression (s.16), the right to a fair trial (ss.21 and 22) and freedom of conscience, thought and religion (s.14). These rights, singly or in conjunction with each other can limit the extent to which it is possible to stop and search persons in these places and seize property. These stronger stop, search and seizure powers also appear to include random baggage searches without a reasonable suspicion, for example opening bags to conduct explosive trace detection tests.
The right to privacy in s.12 encompasses public as well as private areas, as ‘the sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone’.24 It encompasses peoples’ activities in their professional and personal lives, eg searches of office files.25 The right should not be subject to ‘unlawful or arbitrary’ interference. The term ‘unlawful’ means that no interference can take place unless authorised by the law. Furthermore the law must be precise and circumscribed so as not to give police too much discretion in authorising interferences with privacy.26 The term ‘arbitrary’ is intended to guarantee that even interference provided for precisely by law should be in accordance with the provisions, aims and objectives of the HR Act and should be reasonable.
Stop, search and seizure powers must pursue a legitimate aim, they must contain safeguards against abuse, and there must be no other less intrusive methods of obtaining the information required. The police powers of stop, search and seizure must be exercised in practice in a manner that is consistent with dignity and proportionate, and does not amount to harassment. A warrant is not essential before a search takes place, but in the absence of such a warrant the proportionality test will be strictly applied to ensure a minimum of interference with the privacy right.27 In Funke v France it was held that the wide powers of officials to assess the expediency, nature number length and scale of inspections were unduly wide and were therefore disproportionate.28 Canadian case law provides that search and seizure powers must be exercised with prior authorisation by someone capable of acting judicially and independently, weighing the conflicting interests of law enforcement and individual rights.29 In this case it seems that police are to be given powers without an authorisation process. However, the mechanism for requiring the Attorney-General to declare specified areas for a limited time may make these provisions more proportional if there are strong grounds supporting the view that there is an emergency situation. The terms ‘for the prevention of, or in response to terrorism’ appear to be overly general and wide.
COMMONWEALTH JURISDICTION
Control Orders
The suggested control orders granting increased powers ‘where a person might pose a risk to the community, but cannot be contained or detained under existing legislation’, for example they cannot be prosecuted because an offence is not available, or evidence is not admissible. They appear to be modelled on control orders in the UK Prevention of Terrorism Act 2005 (‘Terrorism Act’) under which the Secretary of State may request a court to make a non-derogating order if there are reasonable grounds for suspecting a person is or has been involved in terrorist related activities, and it is necessary for public protection to impose these obligations.30 This UK law was enacted because previous legislation was held to be incompatible with the UK Human Rights Act 1998.31 The UK government justified the use of more intense overt surveillance of individuals suspected of involvement in international terrorism because it was considered to be preferable on human rights grounds to detention. The UK orders can confine a person to his home, control access to the telephone or internet, and restrict whom they meet or associate with.32 Some hearings may involve secret evidence and closed hearings, with special counsel appointed by the Attorney-General to represent the subject of the order, but without his or her presence, or knowledge of proceedings.The Australian Prime Minister proposes to introduce twelve-month control orders, on application by the Australian Federal Police to a court, using the grounds of reasonable belief that the order will substantially assist against the commission of a terrorism offence and is necessary to restrict the person’s activities for the purpose of protecting members of the public from terrorism. These orders could contain strict conditions on a person’s movements and activities, and include electronic tracking devices, curfews, travel, communication and association. These restrictions are much more extensive than those available under current State and Territory legislation governing apprehended violence orders. Procedurally a control order will be similar to a apprehended violence order, which has a lower standard of proof, and can be imposed by a court ex parte, pending a final order. In both cases ex parte orders may last for a considerable period of time, and may be extended. In emergencies an interim order can be issued with a full hearing as soon as practicable afterwards. As a result there can be considerable delays before the respondent has an opportunity to be heard. There are also proposed review powers, including consideration of the person’s health and welfare, as well as an inbuilt operational review. Although an order can be imposed for a maximum period of 12 months, there may be no restriction on renewals. Breach of an order is punishable by up to 5 years’ imprisonment.
This proposal poses particular human rights issues. Ex parte and interim orders themselves will substantially restrict a person’s human rights if there is no right to be heard under article 14(1) of the ICCPR (and article 14(2) if they are characterised as ‘criminal’ in character). However, this might be justified as proportionate because of the purpose of the orders, as well as ability of the court to review the final order in the presence of the party subject to the order. Final orders infringe human rights by restricting travel (freedom of movement (article 12(1)) and by imposing curfews or tagging devices (privacy and reputation (article 17(1)) and by limiting membership of groups or associations (article 22). In commenting on the tagging devices the UK Joint Committee on Human Rights stated:
‘intense surveillance is ... a grave
interference with the right to respect for private life, and should therefore
only be used in cases
where the only alternative would be detention. Such surveillance might include
electronic monitoring, but this would of course also have to be subject to
proper procedural safeguards. For example, the consent of the person being
monitored would have to be obtained before they are fitted with any monitoring
device.’33
Liberty, a UK non-government organisation, has criticised the lack of connection in control orders of the alleged involvement and the restrictions imposed.34
Control orders may in some cases involve a restriction on liberty, as opposed merely to restrictions on freedom of movement. For instance the control order may subject the person to house arrest,35 which engages the right to liberty in article 9. Under this article the deprivation of liberty must be ‘lawful’ which implies that it is ‘accessible and precise’. The law must be sufficiently precise for people to be able to regulate their conduct to avoid infringement.36 It must not be ‘arbitrary’, that is, its aims must be in keeping with the purpose of article 9, and with the purpose of the anti-terrorism law. Detention imposed on grounds of dangerousness by reference to characteristics, which are susceptible to change with the passage of time will become arbitrary if those characteristics are no longer present.37 Also being preventative rather than punitive in design, it would be subject to risk assessment and may be unreliable.38
The UK Joint Committee on Human Rights, in commenting on proposed control orders, expressed concern about what sorts of risks to the public interest (for example assistance, support, incitement, association) should justify their use, and what restrictions on liberty it should be possible to impose. Such orders would have to be accompanied by sufficient procedural safeguards, such as access to an independent judicial determination of whether the underlying allegation was well-founded, and the type of restrictions imposed would have to satisfy a test of strict necessity in order to be proportionate. The Council of Europe’s Commissioner for Human Rights notes with concern that:
‘control orders are intended to substitute the
ordinary criminal justice system with a parallel system run by the
executive…What is essential is that the measures themselves are proportionate
to the threat, objective in their criteria, respectful of all applicable rights
and, on each individual application, justified on relevant, objective, and not
purely racial or religious grounds.’39
Creating new Federal offences
Embedded in these human rights is the basic common law principle of criminal law, that there must be no crime or punishment except in accordance with fixed and predetermined law. Jurisprudence under the ICCPR and under the European Convention on Human Rights have established that not only procedural requirements must be followed, but that the law itself be certain, that is ‘accessible and precise,’45 for people to be able to regulate their conduct to avoid infringement.46
Comparative jurisprudence in Canada, United States of America and South Africa interpreting domestic bills of rights reinforce this common law right in the context of express human rights principles. The European Court of Human Rights jurisprudence has established that a narrow meaning must be given to vague or ambiguous laws.47 As referred to above, the ICJ has stated that persons suspected of involvement in terrorist acts should only be charged with crimes that are strictly defined by law, in conformity with the principle of legality. At the very least there will need to be a reading down on these provisions in order to satisfy the criterion of legal certainty.
The specific new offence of leaving baggage unattended at airports needs to contain safeguards in its formulation, such as mitigating factors like ‘reasonable excuse’. It is important to know if this proposal will be a strict liability offence.48 It is difficult to ascertain what fault elements will be used in the criminal code, ranging from intention, knowledge, recklessness to negligence. Many cases may involve forgetfulness on the part of the accused, and there may be a disproportionate impact on vulnerable groups, such as persons suffering from mental illness or dementia.
The Australian government is not claiming to be at war or dealing with a public emergency that threatens the life of the nation. The President of the Human Rights and Equal Opportunity Commission, Mr von Doussa, QC, has challenged the Federal Government to clarify whether it is in fact using the derogation procedure.49 These circumstances may justify derogation under article 4 of the International Covenant on Civil and Political Rights from certain fundamental civil rights, but not on discriminatory grounds (eg race and religion) nor in respect of non-derogable rights, such as protection from torture and freedom of religion.50 This absence of derogation affects the degree of comparison between the proposed federal legislation and the anti-terrorism legislation in the UK on which it is modelled. According to the UK Joint Committee on Human Rights, it is the only country in the Council of Europe that has sought an explicit derogation from article 5 (right of liberty and security of the person) of the European Convention of Human Rights,51and the only country in the world to have derogated from the similar provision, Article 9, of the ICCPR.52
Conclusion
Yours sincerely,
Dr Helen Watchirs
Human Rights and Discrimination Commissioner
19 September 2005
APPENDIX: Section 28 of the HR Act - the
proportionality test
The s.28 test involves two closely related concepts. First to be ‘demonstrably justified in a democratic society’, there must be a legitimate objective, that is one of sufficient importance to justify overriding human rights. Secondly the measure must be proportional. There must be a rational connection between the public policy objective and the means that the state uses to pursue that objective: James v UK (1986).58 The measure must strike a fair balance between the demands of the general interest of the community and the protection of the individual’s human rights. The measures must not go beyond what is necessary to achieve that objective. As a means of testing proportionality the court may enquire whether the government could have achieved the same objective by other means: Campbell v UK.59 The particular objective of eliminating terrorism is a legitimate objective. However, it is not clear that the proposals are of sufficient importance to override rights, particularly when these aims could be achieved in a different way.
The Oakes case held that to be proportionate:
- the limitation/s must be carefully designed to achieve the relevant objective, not be arbitrary, unfair, or based on irrational considerations;
- the limitation or interference should impair as little as possible the right in question; and
- even if the objective is of sufficient importance and the first two elements of the proportionality test are satisfied, it is still possible that because of the severity of the deleterious effects of a measure on individuals or groups the measure will not be justified by the purpose it is intended to serve’.
1 Including the Security Legislation Amendment (Terrorism) Act 2002; ASIO Legislation Amendment (Terrorism) Act 2003; Criminal Code Amendment (Terrorist Organisations) Act 2004; Anti-terrorism Act 2004; Anti-terrorism Act (No.2) 2004; and Anti-terrorism Act (No.3) 2004.
2 There is a balance between the benefits expected from them on one hand, and on the other hand their adverse consequences for the individual concerned, as well as the free exercise in the right that is being restricted. See Appendix on section 28 of the ACT Human Rights Act 2004.
3 UN Doc. E/CN.4/2002/18, Annex, 27 February 2002.
4 G. Barker, ‘Tough Anti-terrorism Powers Sought by PM’, Australian Financial Review 9 September 2005, S. Lewis and J. Kerin, “Wide Net for Tough Terror Laws’ The Australian, 9 September 20005 and. Munro and F. Shiel, ‘Howard’s Security Move “Draconian”’, The Age, 9 September 2005.
5 A v Australia, Human Rights Communication No. 560/1993, decision of 30 April 1997, UN Doc. CCPR/C/59/D/560/1993.
6 See the Council of Europe's Guidelines on Human Rights and the Fight Against Terrorism, adopted by the 45 Member States. The UK Joint Committee on Human Rights considered it the appropriate framework within which the debate about counter-terrorism measures should be conducted.
7 For example, hooding detainees, subjecting them to constant and intense ‘white’ noise, sleep deprivation, giving them insufficient food and drink, making detainees stand for long periods in pain: Ireland v UK (1979-80) 2 EHRR 25, para 82. The Public Committee Against Torture in Israel v The Government of Israel et al (HCJ 5100/94) decision of the Israeli Supreme Court sitting as the High Court of Justice of 6 September 1999.
8 Council of Europe, Guidelines on Human Rights and the Fight Against Terrorism, H (2002) 004.
9 International Commission of Jurists, The Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, 28 August 2004.
10 ‘The Impact of Anti Terrorism Powers on the British Muslim population’ Liberty, June 2004; Hillyard, Suspect Community-People’s Experience of the Prevention of Terrorism Acts in Britain (1993). See also the Council for Racial Equality Submission to the Joint Committee on Human Rights, Review of Counter-terrorism Powers, 2003-4 HL 18th Report, Appendix 1.
11 H. Charlesworth, ‘Terrorism and the Law: Human Rights and Security – Conflict or Convergence’, paper delivered at the Judicial Conference of Australia, Maroochydore, 2 September 2005, J. Victoroff, ‘The Mind of the Terrorist’ 49 Journal of Conflict Resolution 3.
12 B. Saul, ‘Speaking of Terror: Australia’s New Anti-terrorism Proposals’, forthcoming article in New Matilda 2005 online.
13 C. Hull, ‘The Fatal Flaws in Ruddock’s anti-terror plan’, Canberra Times, 13 September 2005.
14 Re Governor, Goulbourn Jail, Ex parte Eastman (1999) 200 CLR 322 and R v Bernasconi (1915) 19 CLR 629.
15 HRC, 155/83.
16 HRC, 330/88 and 560/93.
17 Winterwerp v Netherlands (1979) 2EHRR 387, para 66.
18 (1998) 11 EHRR 117. As a result of this case the UK entered a derogation to article 5(3), permitting 7 days of detention, but imposing a 5-year time limit on the derogation. The derogation was upheld by the European Court of Human Rights in Brannigan and McBride v UK (1993) 17 EHRR 539.
19 UN Human Rights Committee, General Comment No. 8, para 4.
20 Chu Keong Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) per Brennan, Deane and Dawson JJ, 176 CLR 1 at p.28.
21 B. Brandon, ‘Terrorism, Human Rights and the Rule of Law: 120 years of the UK’s Legal Response to Terrorism’ (2004) Criminal Law Review 981.
22 Ibid.
23 (2000) UN doc. A/55/40, paras 422-451, para 15.
24 Coriel and Aurik v The Netherlands (453/91).
25 Niemetz v Germany (1993) 16 EHRR 97.
26 Human Rights Committee, General Comment 16.
27 Camezind v Switzerland (1999) 28 EHRR 458.
28 (1993) 16 EHRR 297.
29 Hunter v Southam Inc [1984] 2 SCR 145.
30 Derogating orders have a different procedure in the High Court, as it requires a derogation from article 5 (right to liberty) of the European Convention on Human Rights, and does not include rights to be informed of hearings or to have legal representation, and only lasts for 6 months.
31 A (FC) and Others v Secretary of State for the Home Department [2004] UKHL.
32 C. Walker, “Prisoners of “War All the Time”’ (2005) European Human Rights Law Review 50.
33 UK Joint Committee on Human Rights, 18th Report, Session 2003-04, para. 74.
34 Liberty, Protecting Civil Liberties and Promoting Human Rights, Summary of the Prevention of Terrorism Act 2005 (2005).
35 Guzzardi v Italy (1980) 3 EHRR 647 Engel v Netherlands (1976) 1 EHRR 647.
36 Steel and Others v UK (1999) 28 EHRR 603.
37 Lester and Pannick, Human Rights Law and Practice (1999) p.112 citing among others Weeks v UK (1987) 10 EHRR 293.
38 B. McSherry, ‘Sex, Drugs and Evil Souls: is Preventive Detention Justifiable?’ speech given at Inaugural Waller Lecture, Melbourne, 18 August 2005.
39 Council of Europe, Office of the Commissioner for Human Rights, Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom, 4-12 November 2004, 8 June 2005, pp10-12
40 G. Williams, The Case for an Australian Bill of Rights (2004).
41 A. Gil-Robles, Opinion of the Commissioner for Human Rights on the Draft Convention on the Prevention of Terrorism, Council of Europe, 2 February 2005.
42 T. Allard, “Fear that Law Changes Will Curb Free Speech,’ The Sydney Morning Herald, 9 September 2005.
43 C. Merritt, The Australian, 14 September 2005.
44 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Levy v Victoria (1997) 189 CLR 579.
45 Sunday Times v UK (1979) 2 EHRR 245, para 49.
46 Steel and others v UK (1999) 28 EHRR 603
47 This comparative jurisprudence is fully discussed by Emmerson and Ashworth, Human Rights and Criminal Justice, 2003 pp 281- 288.
48 In the European human rights case law strict liability offences must be ‘within reasonable limits’, that is proportional and rationally connected to the objective sought to be achieved: Salabiaku v France (1988) 13 EHRR 379.
49 HREOC Press Release, ‘New Terrorism Laws Should Adhere to Human Rights Principles’ 13 September 2005.
50 UN Human Rights Committee, General Comments Nos 28 and 24, paras 8 and 10 respectively.
51 The UK House of Lords has held that the derogation in the Anti- terrorism, Crime and Security Act 2001 was invalid under the ECHR and it is not clear whether the amending legislation, Prevention of Terrorism Act 2005 has overcome that problem: A v Sec of State for the Home Department [2004] UKHL 56.
52 UK Joint Committee on Human Rights, 18th Report, Session 2003-04, para. 82
53 (2000) 29 EHRR 493 at para. 73.
54 [1986] 1 SCR103. A similar approach has been endorsed by the Privy Council in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1998] 3 WLR 675.
55 (1979-80) 2 EHRR 245.
56 [1992] 3 NZLR 260.
57 [2004] UKHL 30.
58 8 EHRR 123 at 50.
59 (1993) 15 EHRR 394 at para 44.
60 [1986] 2 SCR 713 at 772.
http://209.85.173.132/search?q=cache:CeMkbqAU_nAJ:www.hrc.act.gov.au/assets/docs/Anti-terrorism%2520COAG%2520proposals%2520final.doc+Court+Cases+in+Australia+citing
+Article+14+of+the+ICCPR&hl=en&ct=clnk&cd=2&gl=au
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Potential human rights implications of proposed measures to strengthen counter terrorism laws.
Australian Capital Territory
HUMAN
RIGHTS OFFICE
Level 12, 14 Moore Street GPO Box 158Canberra City 2601 CANBERRA ACT 2601
TTY: (02) 62070525 Tel: (02) 62070576
ACT Government Homepage: http://www.act.gov.au Fax: (02) 62070587
Mr Jon Stanhope, MLA
Chief Minister and Attorney-General
ACT Legislative Assembly
GPO Box 1020
CANBERRA ACT 2601
Dear Mr Stanhope,
Re: Council of Australian Government’s meeting - potential human rights implications of proposed measures to strengthen counter terrorism laws.
Thank you for your request of 9 September 2005 to advise you about some of the potential human rights implications of the Prime Minister’s proposals on counter terrorism, as announced in his media release of 8 September 2005. My short advice is that, depending on the detail, such laws if enacted in the ACT could potentially contravene the Human Rights Act 2004 ACT (HR Act) in a number of significant ways, particularly in regard to the rights to liberty, fair trial and privacy. A number of the proposals are preventive in nature, meaning that the executive may bypass many ordinary criminal law procedures and protections to varying degrees.
The proposals are designed to enable better deterrence, prevention, detection and prosecution of terrorist acts, and some have been developed as a result of reviews following the recent London bombings. In all instances the central question is whether the means suggested are proportionate to the legitimate objectives of protecting the Australian community from terrorism. This can only be properly assessed when the draft legislation is available.
As there is not sufficient time to respond to all of the 12 different proposals, comments are concentrated on two proposed areas for the exercise of ACT powers, preventive detention of up to 14 days and increased police powers to stop, question and search based on suspicion of terrorist activities in non-Commonwealth areas, and two of the most significant proposals within Commonwealth jurisdiction, namely control orders (which rely on referral of powers from States) and the new offence of inciting violence to replace the offence of sedition. The proposed legislation will add to the existing anti-terrorist amendments to laws passed between 2002 and 2004.1 As these proposals only relate to current terrorist threats they should be subject to sunset clauses, as is the case with new ASIO powers. Some of the objections referred to in my advice to you of 30 August 2004 about the Anti-terrorism Act (No. 2) 2004 still remain - if these provisions were enacted in the ACT, they would contravene several provisions in the HR Act, particularly the right to freedom of association.
General implications of anti terrorism legislation at ACT and Commonwealth levels
Terrorism is a matter of international concern and has been the subject of debate in the United Nations. Paragraph 6 of the UN Security Council Resolution 1456 of 2003 clearly states that States Parties ‘must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt measures in accordance with international law, in particular international human rights, refugee, and humanitarian law’. The former UN High Commissioner for Human Rights, Mary Robinson, issued a statement setting out criteria for protecting human rights in the context of implementing anti-terrorism measures, and recommended that laws use precise criteria and not confer unfettered executive discretion. These principles require that restrictions be:
- prescribed by law (that is, they are not arbitrary in substance);
- necessary for public security or public order (there is a pressing social need);
- not impair the essence of the right;
- necessary in a democratic society (they are a product of consensus);
- in conformance with the principle of proportionality;2
- appropriate to achieve that aim;
- the least intrusive means to achieve the aim of the measures;
- respectful of the principle of non-discrimination; and
- not arbitrarily applied.3
Governments have a positive obligation to take measures necessary within their jurisdiction to protect individual lives against terrorist acts (article 6(1) of the ICCPR, and s.9 (1) of the ACT HR Act). If current laws are inadequate to provide this protection against the actual level of risk, then additional laws should be enacted to protect against the current threat for a limited time period. All counter-terrorism measures must operate within a human rights framework, which imposes certain basic requirements in addition to the points above. For example, they must respect the basic principles of a fair trial, be subject to proper judicial supervision, and must not involve torture, or use information or intelligence that is the product of torture.6 There is no suggestion that the proposals involve techniques that have been held by courts to amount to inhuman treatment.7
The Council of Europe and the International Commission of Jurists (ICJ) have also produced Guidelines and Recommendations of anti-terrorism laws.8 Article 3 of the ICJ’s Berlin Declaration states that:
‘States should avoid the abuse of
counter-terrorism measures by ensuring that persons suspected of involvement in
terrorist acts are only charged with crimes, which are strictly defined by law
that are not retroactive, and in conformity with the principle of legality (nullum
crimen sine lege).9
States may not apply criminal law retroactively. They may not criminalise the
lawful exercise of fundamental rights and freedoms. Criminal responsibility for
acts of terrorism must be individual, not collective. In combating terrorism,
states should apply, and where necessary adapt, existing criminal laws rather
than create new, broadly defined offences or resort to extreme administrative
measures, especially those involving deprivation of liberty.’
In assessing new legislation it is important also to recognise the effect
that overly coercive measures may have on minority groups who have the right to
protection under article
27 of the ICCPR (and
s.27 of the ACT HR Act). The proposals may have a disproportionate impact on
Muslim communities, and they should be consulted. Alternative means of
achieving these goals that will have less impact on racial equality should be
considered. The impact of anti-terrorist legislation on minority groups has
been well researched in overseas jurisdictions.10
Repressive and discriminatory laws can be counter-productive by pushing
extremists underground, and exacerbating alienation from moderate communities.11
It is important that these measures do not contravene the Racial Discrimination
Act 1975, Commonwealth or similar State and Territory laws (for example the
ACT Discrimination Act 1991) by directly or indirectly discriminating
against minority populations.ACT JURISDICTION
Preventative detention
The proposal seeks the cooperation of Territories and States to enact legislation providing for 14 days of preventative detention of persons concerned with the commission of terrorist offences in order to prevent terrorist attacks and further incidents (including escalation of), as well as to prevent suspects absconding or destroying evidence. The threshold issue is whether the person is ‘reasonably suspected’ of having just committed, might be committing or might be about to commit a terrorist offence – these criteria are very broad, like the ones discussed below in relation to police stop, search and seizure powers. This proposal is modelled on the UK power to detain terrorist suspects for 14 days in exceptional circumstances. It is differs from existing Federal powers under which people who are not terrorist suspects can be detained for the purpose of questioning, eg a university student was interviewed by ASIO after borrowing library books for his research on terrorism.12
It appears that this proposed administrative detention is without arrest, charge or trial. Authorisation of detention is to be by a senior police officer and must be reviewed by an independent person after 24 hours. However, it is unclear whether there will be rights to legal representation, and judicial authorisation or review. The main accountability mechanisms for the regime are overview by the Ombudsman and Inspector-General of Security, as well as an annual reporting process, which in my view are not adequate to fully protect human rights. The Commonwealth recognises that to extend detention beyond the 48 hours under current law would be a ‘penalty’, and under the doctrine of separation of powers in the Australian Constitution, this requires a judicial rather than an administrative process. It appears this is the reason the Commonwealth government seeks the States’ and Territories’ cooperation. It has been suggested by a journalist that it is also beyond the powers of the Territory to enact such legislation for the same constitutional reason,13 but I am not confident that this view is correct and suggest that you seek expert constitutional legal advice on the plenary Territories powers.14
I believe that a provision allowing detention for 14 days preventative detention without charge or arrest, and possibly without access to a court and a lawyer is contrary to the right to liberty in s.18 of the ACT HR Act. Subsection 18(6) specifically states that anyone deprived of liberty by detention must have access to judicial review as s/he is: ‘entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful’. This right of access to a court does not need to be performed ex officio by the State, but is up to the detainee to instigate, for example through a writ of habeas corpus. This right includes access to a lawyer in order to test the lawfulness of detention. The Human Rights Committee found a breach of Article 9(4) (the equivalent section to s.18 (6) of the ACT HR Act) in Hammel v Madagascar where a detainee was held incommunicado for three days without access to a lawyer.15 The cases Berry v Jamaica and A v Australia also clearly find that there is a right of access to a lawyer under Article 9(4).16 The European Court of Human Rights also establishes that there is a right of access to a lawyer to enable effective application for release from detention.17
There is little jurisprudence on the exact time period of detention allowed before being taken before a judge. The European Court of Human Rights held in Brogan v UK that detention for 4 days and six hours under the UK Prevention of Terrorism (Temporary Measures) Act 1984 breached article 5(3) of the European Convention on Human Rights.18
In general comments the Human Rights Committee, which monitors compliance with the ICCPR, has clarified that use of preventive detention for public security reasons must still comply with the obligations in article 9 (s.18 of the HR Act): it must not be arbitrary, it must be based on grounds and procedures established by law, information on the reasons must be given, and court control of the detention must be available.19
The common law does not sanction preventative detention. As an exercise of judicial power ‘citizens enjoy… at least in times of peace a constitutional immunity from being imprisoned… except pursuant to an order of the court in the exercise of the judicial power of the Commonwealth’.20 At the ACT level a breach of s.18(6) of the HR Act would need to proportionate under s.28 in order to be valid (see Appendix on s.28).
In the 1970s Northern Ireland used preventive detention, known as ‘internment’, where suspected terrorists were unlikely to be convicted by a criminal court, partly because of widespread fear and intimidation of witnesses, which is not the case in Australia.21 However, the antagonism of the community caused by internment was regarded as a strong motivation in recruiting new Irish Republican Army members.22 It would be paradoxical for suspects to be detained without trial, while persons properly charged with terrorism offences on the basis of stronger evidence have the full benefits of the right to a fair trial.
The government must show that the legitimate objective of protecting the community from danger is proportionate to the degree of harm could not be achieved by alternative means that involved less restriction on the right to liberty. The period of 14 days detention is too long and an alternative should be considered, such as lesser periods that may be renewed, but all of which at least are subject to judicial authorisation or review. For these reasons I do not consider it likely that the breach of s.18 (6) would be proportionate under s.28.
Extending police powers in non-Commonwealth areas
The three terms, where there are reasonable grounds for suspecting that a person ‘might have just committed, might be committing or might be about to commit a terrorism offence’ lack precision, and the third is particularly loose, to the extent that they may be classified as arbitrary. Also the Human Rights Committee has made adverse comments in Concluding Observations about laws in Ireland enabling the arbitrary arrest of a person ‘on suspicion of being about to commit an offence’.23
The main human rights engaged by stop, search and seizure powers are the right to privacy and reputation (s.12), the right to freedom of expression (s.16), the right to a fair trial (ss.21 and 22) and freedom of conscience, thought and religion (s.14). These rights, singly or in conjunction with each other can limit the extent to which it is possible to stop and search persons in these places and seize property. These stronger stop, search and seizure powers also appear to include random baggage searches without a reasonable suspicion, for example opening bags to conduct explosive trace detection tests.
The right to privacy in s.12 encompasses public as well as private areas, as ‘the sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone’.24 It encompasses peoples’ activities in their professional and personal lives, eg searches of office files.25 The right should not be subject to ‘unlawful or arbitrary’ interference. The term ‘unlawful’ means that no interference can take place unless authorised by the law. Furthermore the law must be precise and circumscribed so as not to give police too much discretion in authorising interferences with privacy.26 The term ‘arbitrary’ is intended to guarantee that even interference provided for precisely by law should be in accordance with the provisions, aims and objectives of the HR Act and should be reasonable.
Stop, search and seizure powers must pursue a legitimate aim, they must contain safeguards against abuse, and there must be no other less intrusive methods of obtaining the information required. The police powers of stop, search and seizure must be exercised in practice in a manner that is consistent with dignity and proportionate, and does not amount to harassment. A warrant is not essential before a search takes place, but in the absence of such a warrant the proportionality test will be strictly applied to ensure a minimum of interference with the privacy right.27 In Funke v France it was held that the wide powers of officials to assess the expediency, nature number length and scale of inspections were unduly wide and were therefore disproportionate.28 Canadian case law provides that search and seizure powers must be exercised with prior authorisation by someone capable of acting judicially and independently, weighing the conflicting interests of law enforcement and individual rights.29 In this case it seems that police are to be given powers without an authorisation process. However, the mechanism for requiring the Attorney-General to declare specified areas for a limited time may make these provisions more proportional if there are strong grounds supporting the view that there is an emergency situation. The terms ‘for the prevention of, or in response to terrorism’ appear to be overly general and wide.
COMMONWEALTH JURISDICTION
Control Orders
The suggested control orders granting increased powers ‘where a person might pose a risk to the community, but cannot be contained or detained under existing legislation’, for example they cannot be prosecuted because an offence is not available, or evidence is not admissible. They appear to be modelled on control orders in the UK Prevention of Terrorism Act 2005 (‘Terrorism Act’) under which the Secretary of State may request a court to make a non-derogating order if there are reasonable grounds for suspecting a person is or has been involved in terrorist related activities, and it is necessary for public protection to impose these obligations.30 This UK law was enacted because previous legislation was held to be incompatible with the UK Human Rights Act 1998.31 The UK government justified the use of more intense overt surveillance of individuals suspected of involvement in international terrorism because it was considered to be preferable on human rights grounds to detention. The UK orders can confine a person to his home, control access to the telephone or internet, and restrict whom they meet or associate with.32 Some hearings may involve secret evidence and closed hearings, with special counsel appointed by the Attorney-General to represent the subject of the order, but without his or her presence, or knowledge of proceedings.The Australian Prime Minister proposes to introduce twelve-month control orders, on application by the Australian Federal Police to a court, using the grounds of reasonable belief that the order will substantially assist against the commission of a terrorism offence and is necessary to restrict the person’s activities for the purpose of protecting members of the public from terrorism. These orders could contain strict conditions on a person’s movements and activities, and include electronic tracking devices, curfews, travel, communication and association. These restrictions are much more extensive than those available under current State and Territory legislation governing apprehended violence orders. Procedurally a control order will be similar to a apprehended violence order, which has a lower standard of proof, and can be imposed by a court ex parte, pending a final order. In both cases ex parte orders may last for a considerable period of time, and may be extended. In emergencies an interim order can be issued with a full hearing as soon as practicable afterwards. As a result there can be considerable delays before the respondent has an opportunity to be heard. There are also proposed review powers, including consideration of the person’s health and welfare, as well as an inbuilt operational review. Although an order can be imposed for a maximum period of 12 months, there may be no restriction on renewals. Breach of an order is punishable by up to 5 years’ imprisonment.
This proposal poses particular human rights issues. Ex parte and interim orders themselves will substantially restrict a person’s human rights if there is no right to be heard under article 14(1) of the ICCPR (and article 14(2) if they are characterised as ‘criminal’ in character). However, this might be justified as proportionate because of the purpose of the orders, as well as ability of the court to review the final order in the presence of the party subject to the order. Final orders infringe human rights by restricting travel (freedom of movement (article 12(1)) and by imposing curfews or tagging devices (privacy and reputation (article 17(1)) and by limiting membership of groups or associations (article 22). In commenting on the tagging devices the UK Joint Committee on Human Rights stated:
‘intense surveillance is ... a grave
interference with the right to respect for private life, and should therefore
only be used in cases
where the only alternative would be detention. Such surveillance might include
electronic monitoring, but this would of course also have to be subject to
proper procedural safeguards. For example, the consent of the person being
monitored would have to be obtained before they are fitted with any monitoring
device.’33
In practice it is not very likely that people will consent to such
monitoring, unless it is the only alternative to detention. Because of
restrictions on the availability of protected evidence relating to security to
the respondent, it may in practice be very difficult for him/her to establish a
case for an order to be revoked. These orders have serious restrictions on
human rights and need to have considerable safeguards built into them. Making
orders only obtainable from and reviewable by courts is protective of human
rights, but the extent of specific restrictions on human rights needs to be
justified as proportionate in the particular case, that is they must be
tailored to the individual’s circumstances. Liberty,
a UK
non-government organisation, has criticised the lack of connection in control
orders of the alleged involvement and the restrictions imposed.34Control orders may in some cases involve a restriction on liberty, as opposed merely to restrictions on freedom of movement. For instance the control order may subject the person to house arrest,35 which engages the right to liberty in article 9. Under this article the deprivation of liberty must be ‘lawful’ which implies that it is ‘accessible and precise’. The law must be sufficiently precise for people to be able to regulate their conduct to avoid infringement.36 It must not be ‘arbitrary’, that is, its aims must be in keeping with the purpose of article 9, and with the purpose of the anti-terrorism law. Detention imposed on grounds of dangerousness by reference to characteristics, which are susceptible to change with the passage of time will become arbitrary if those characteristics are no longer present.37 Also being preventative rather than punitive in design, it would be subject to risk assessment and may be unreliable.38
The UK Joint Committee on Human Rights, in commenting on proposed control orders, expressed concern about what sorts of risks to the public interest (for example assistance, support, incitement, association) should justify their use, and what restrictions on liberty it should be possible to impose. Such orders would have to be accompanied by sufficient procedural safeguards, such as access to an independent judicial determination of whether the underlying allegation was well-founded, and the type of restrictions imposed would have to satisfy a test of strict necessity in order to be proportionate. The Council of Europe’s Commissioner for Human Rights notes with concern that:
‘control orders are intended to substitute the
ordinary criminal justice system with a parallel system run by the
executive…What is essential is that the measures themselves are proportionate
to the threat, objective in their criteria, respectful of all applicable rights
and, on each individual application, justified on relevant, objective, and not
purely racial or religious grounds.’39
As these ‘house arrest’ type orders breach the right to liberty in the UK HR
Act, the UK Terrorism Act provides an opt out clause and special procedures for
these orders. The ICCPR,
which Australia is a State
Party to, contains extra rights to those in the European Convention on Human
Rights, on which the UK HRA is based - namely the right to freedom of movement,
and stronger protections for minority groups. On the other hand it is relevant
that Australia does not have
a Bill of Rights that these proposals can be independently measured against by
domestic courts,40
as in the UK,
which has enacted the Human Rights Act 1998. These differences need to
be considered in comparing the two jurisdictions.Creating new Federal offences
Comparative jurisprudence in Canada, United States of America and South Africa interpreting domestic bills of rights reinforce this common law right in the context of express human rights principles. The European Court of Human Rights jurisprudence has established that a narrow meaning must be given to vague or ambiguous laws.47 As referred to above, the ICJ has stated that persons suspected of involvement in terrorist acts should only be charged with crimes that are strictly defined by law, in conformity with the principle of legality. At the very least there will need to be a reading down on these provisions in order to satisfy the criterion of legal certainty.
The specific new offence of leaving baggage unattended at airports needs to contain safeguards in its formulation, such as mitigating factors like ‘reasonable excuse’. It is important to know if this proposal will be a strict liability offence.48 It is difficult to ascertain what fault elements will be used in the criminal code, ranging from intention, knowledge, recklessness to negligence. Many cases may involve forgetfulness on the part of the accused, and there may be a disproportionate impact on vulnerable groups, such as persons suffering from mental illness or dementia.
The Australian government is not claiming to be at war or dealing with a public emergency that threatens the life of the nation. The President of the Human Rights and Equal Opportunity Commission, Mr von Doussa, QC, has challenged the Federal Government to clarify whether it is in fact using the derogation procedure.49 These circumstances may justify derogation under article 4 of the International Covenant on Civil and Political Rights from certain fundamental civil rights, but not on discriminatory grounds (eg race and religion) nor in respect of non-derogable rights, such as protection from torture and freedom of religion.50 This absence of derogation affects the degree of comparison between the proposed federal legislation and the anti-terrorism legislation in the UK on which it is modelled. According to the UK Joint Committee on Human Rights, it is the only country in the Council of Europe that has sought an explicit derogation from article 5 (right of liberty and security of the person) of the European Convention of Human Rights,51and the only country in the world to have derogated from the similar provision, Article 9, of the ICCPR.52
Conclusion
Yours sincerely,
Dr Helen Watchirs
Human Rights and Discrimination Commissioner
19 September 2005
APPENDIX: Section 28 of the HR Act - the
proportionality test
The question for these restrictions proposed under Territory law is whether
the restrictions are justified under s.28 of the ACT HR Act, which provides:
‘Human rights may be subject only to reasonable limits set by Territory laws
that can be demonstrably justified in a free and democratic society.’
Restrictions on rights should be narrowly construed, and the burden of
establishing proportionality lies on the party that seeks to apply it, that is
on the government: Smith and Grady v UK.53
The main elements of the proportionality test are established by the Canadian
case of R v Oakes.54
The European Court
of Human Rights, the UK courts and the New Zealand courts have also taken a
similar approach: Sunday Times v UK;55
Ministry of Transport v Noort;56
and Ghaidan v Godin-Mendoza.57The s.28 test involves two closely related concepts. First to be ‘demonstrably justified in a democratic society’, there must be a legitimate objective, that is one of sufficient importance to justify overriding human rights. Secondly the measure must be proportional. There must be a rational connection between the public policy objective and the means that the state uses to pursue that objective: James v UK (1986).58 The measure must strike a fair balance between the demands of the general interest of the community and the protection of the individual’s human rights. The measures must not go beyond what is necessary to achieve that objective. As a means of testing proportionality the court may enquire whether the government could have achieved the same objective by other means: Campbell v UK.59 The particular objective of eliminating terrorism is a legitimate objective. However, it is not clear that the proposals are of sufficient importance to override rights, particularly when these aims could be achieved in a different way.
The Oakes case held that to be proportionate:
- the limitation/s must be carefully designed to achieve the relevant objective, not be arbitrary, unfair, or based on irrational considerations;
- the limitation or interference should impair as little as possible the right in question; and
- even if the objective is of sufficient importance and the first two elements of the proportionality test are satisfied, it is still possible that because of the severity of the deleterious effects of a measure on individuals or groups the measure will not be justified by the purpose it is intended to serve’.
1 Including the Security Legislation Amendment (Terrorism) Act 2002; ASIO Legislation Amendment (Terrorism) Act 2003; Criminal Code Amendment (Terrorist Organisations) Act 2004; Anti-terrorism Act 2004; Anti-terrorism Act (No.2) 2004; and Anti-terrorism Act (No.3) 2004.
2 There is a balance between the benefits expected from them on one hand, and on the other hand their adverse consequences for the individual concerned, as well as the free exercise in the right that is being restricted. See Appendix on section 28 of the ACT Human Rights Act 2004.
3 UN Doc. E/CN.4/2002/18, Annex, 27 February 2002.
4 G. Barker, ‘Tough Anti-terrorism Powers Sought by PM’, Australian Financial Review 9 September 2005, S. Lewis and J. Kerin, “Wide Net for Tough Terror Laws’ The Australian, 9 September 20005 and. Munro and F. Shiel, ‘Howard’s Security Move “Draconian”’, The Age, 9 September 2005.
5 A v Australia, Human Rights Communication No. 560/1993, decision of 30 April 1997, UN Doc. CCPR/C/59/D/560/1993.
6 See the Council of Europe's Guidelines on Human Rights and the Fight Against Terrorism, adopted by the 45 Member States. The UK Joint Committee on Human Rights considered it the appropriate framework within which the debate about counter-terrorism measures should be conducted.
7 For example, hooding detainees, subjecting them to constant and intense ‘white’ noise, sleep deprivation, giving them insufficient food and drink, making detainees stand for long periods in pain: Ireland v UK (1979-80) 2 EHRR 25, para 82. The Public Committee Against Torture in Israel v The Government of Israel et al (HCJ 5100/94) decision of the Israeli Supreme Court sitting as the High Court of Justice of 6 September 1999.
8 Council of Europe, Guidelines on Human Rights and the Fight Against Terrorism, H (2002) 004.
9 International Commission of Jurists, The Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, 28 August 2004.
10 ‘The Impact of Anti Terrorism Powers on the British Muslim population’ Liberty, June 2004; Hillyard, Suspect Community-People’s Experience of the Prevention of Terrorism Acts in Britain (1993). See also the Council for Racial Equality Submission to the Joint Committee on Human Rights, Review of Counter-terrorism Powers, 2003-4 HL 18th Report, Appendix 1.
11 H. Charlesworth, ‘Terrorism and the Law: Human Rights and Security – Conflict or Convergence’, paper delivered at the Judicial Conference of Australia, Maroochydore, 2 September 2005, J. Victoroff, ‘The Mind of the Terrorist’ 49 Journal of Conflict Resolution 3.
12 B. Saul, ‘Speaking of Terror: Australia’s New Anti-terrorism Proposals’, forthcoming article in New Matilda 2005 online.
13 C. Hull, ‘The Fatal Flaws in Ruddock’s anti-terror plan’, Canberra Times, 13 September 2005.
14 Re Governor, Goulbourn Jail, Ex parte Eastman (1999) 200 CLR 322 and R v Bernasconi (1915) 19 CLR 629.
15 HRC, 155/83.
16 HRC, 330/88 and 560/93.
17 Winterwerp v Netherlands (1979) 2EHRR 387, para 66.
18 (1998) 11 EHRR 117. As a result of this case the UK entered a derogation to article 5(3), permitting 7 days of detention, but imposing a 5-year time limit on the derogation. The derogation was upheld by the European Court of Human Rights in Brannigan and McBride v UK (1993) 17 EHRR 539.
19 UN Human Rights Committee, General Comment No. 8, para 4.
20 Chu Keong Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) per Brennan, Deane and Dawson JJ, 176 CLR 1 at p.28.
21 B. Brandon, ‘Terrorism, Human Rights and the Rule of Law: 120 years of the UK’s Legal Response to Terrorism’ (2004) Criminal Law Review 981.
22 Ibid.
23 (2000) UN doc. A/55/40, paras 422-451, para 15.
24 Coriel and Aurik v The Netherlands (453/91).
25 Niemetz v Germany (1993) 16 EHRR 97.
26 Human Rights Committee, General Comment 16.
27 Camezind v Switzerland (1999) 28 EHRR 458.
28 (1993) 16 EHRR 297.
29 Hunter v Southam Inc [1984] 2 SCR 145.
30 Derogating orders have a different procedure in the High Court, as it requires a derogation from article 5 (right to liberty) of the European Convention on Human Rights, and does not include rights to be informed of hearings or to have legal representation, and only lasts for 6 months.
31 A (FC) and Others v Secretary of State for the Home Department [2004] UKHL.
32 C. Walker, “Prisoners of “War All the Time”’ (2005) European Human Rights Law Review 50.
33 UK Joint Committee on Human Rights, 18th Report, Session 2003-04, para. 74.
34 Liberty, Protecting Civil Liberties and Promoting Human Rights, Summary of the Prevention of Terrorism Act 2005 (2005).
35 Guzzardi v Italy (1980) 3 EHRR 647 Engel v Netherlands (1976) 1 EHRR 647.
36 Steel and Others v UK (1999) 28 EHRR 603.
37 Lester and Pannick, Human Rights Law and Practice (1999) p.112 citing among others Weeks v UK (1987) 10 EHRR 293.
38 B. McSherry, ‘Sex, Drugs and Evil Souls: is Preventive Detention Justifiable?’ speech given at Inaugural Waller Lecture, Melbourne, 18 August 2005.
39 Council of Europe, Office of the Commissioner for Human Rights, Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom, 4-12 November 2004, 8 June 2005, pp10-12
40 G. Williams, The Case for an Australian Bill of Rights (2004).
41 A. Gil-Robles, Opinion of the Commissioner for Human Rights on the Draft Convention on the Prevention of Terrorism, Council of Europe, 2 February 2005.
42 T. Allard, “Fear that Law Changes Will Curb Free Speech,’ The Sydney Morning Herald, 9 September 2005.
43 C. Merritt, The Australian, 14 September 2005.
44 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Levy v Victoria (1997) 189 CLR 579.
45 Sunday Times v UK (1979) 2 EHRR 245, para 49.
46 Steel and others v UK (1999) 28 EHRR 603
47 This comparative jurisprudence is fully discussed by Emmerson and Ashworth, Human Rights and Criminal Justice, 2003 pp 281- 288.
48 In the European human rights case law strict liability offences must be ‘within reasonable limits’, that is proportional and rationally connected to the objective sought to be achieved: Salabiaku v France (1988) 13 EHRR 379.
49 HREOC Press Release, ‘New Terrorism Laws Should Adhere to Human Rights Principles’ 13 September 2005.
50 UN Human Rights Committee, General Comments Nos 28 and 24, paras 8 and 10 respectively.
51 The UK House of Lords has held that the derogation in the Anti- terrorism, Crime and Security Act 2001 was invalid under the ECHR and it is not clear whether the amending legislation, Prevention of Terrorism Act 2005 has overcome that problem: A v Sec of State for the Home Department [2004] UKHL 56.
52 UK Joint Committee on Human Rights, 18th Report, Session 2003-04, para. 82
53 (2000) 29 EHRR 493 at para. 73.
54 [1986] 1 SCR103. A similar approach has been endorsed by the Privy Council in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1998] 3 WLR 675.
55 (1979-80) 2 EHRR 245.
56 [1992] 3 NZLR 260.
57 [2004] UKHL 30.
58 8 EHRR 123 at 50.
59 (1993) 15 EHRR 394 at para 44.
60 [1986] 2 SCR 713 at 772.
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Submissions to Commonwealth Inquiries
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The intervention power is to assist the court, and has been used by the Commission in several cases, including:
The intervention power is to assist the court, and has been used by the Commission in several cases, including:
The Commissioners' amicus curiae function can only be exercised with the leave of the Federal Court or the Federal Magistrates Service where the Court is hearing an application alleging unlawful discrimination under Division 2, Part IIB of the Human Rights and Equal Opportunity Commission Act. The Commissioner/s may seek leave to appear as amicus where:
1. the Commissioner thinks the orders may affect to a significant extent the human rights of persons who are not parties to the proceedings; or
2. the proceedings, in the opinion of the Commissioner, have significant implications for the administration of the relevant Act/s; or
3. the proceedings involve special circumstances such that the Commissioner is satisfied that it would be in the public interest for the Commissioner to assist the Court as amicus.
The Human Rights and Equal Opportunity Commission has produced Guidelines on Amicus interventions which are available here
For a detailed discussion of the Commission's role as amicus curiae click here.
If you have a matter involving a discrimination or human rights issue which falls within the Guidelines and you believe that a Commissioner could assist the Court as amicus curiae please contact the Legal Section of the Australian Human Rights Commission at legal@humanrights.gov.au.
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Submissions
The Commission has a role to review legislation and make recommendations about laws and government policies and programs that involve human rights issues. Submissions are presented to government agencies, parliamentary committees and other inquiry bodies.Submissions to Commonwealth Inquiries
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Information about the Intervention Role
The Commission has the power to intervene, with leave of the Court, in proceedings that involve issues of race, sex and disability discrimination, human rights issues and equal opportunity in employment. The power to seek leave to intervene is contained in:- The Racial Discrimination Act 1975 (Cth), s 20(1)(e)
- The Sex Discrimination Act 1984 (Cth), s 48(1)(gb)
- The Disability Discrimination Act 1992 (Cth), s 67(1)(l)
- Age Discrimination Act 2004 (Cth), s 53(1)(g)
- The Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(o) and s. 31(j)
- The Commission has Guidelines for Interventions which are available here.
- For a detailed discussion of the Commission's role as an intervener click here. (2001)
- A table of all Interventions made by the Commission since 1988 is available in <!--[if !vml]-->
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CRIMINAL LAW
- Aboriginal customary law (group rights - article 27 ICCPR) v individual human rights and fundamental freedoms (freedom from violence and discrimination (CEDAW))
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Information about the Intervention Role
The Commission has the power to intervene, with leave of the Court, in proceedings that involve issues of race, sex and disability discrimination, human rights issues and equal opportunity in employment. The power to seek leave to intervene is contained in:- The Racial Discrimination Act 1975 (Cth), s 20(1)(e)
- The Sex Discrimination Act 1984 (Cth), s 48(1)(gb)
- The Disability Discrimination Act 1992 (Cth), s 67(1)(l)
- Age Discrimination Act 2004 (Cth), s 53(1)(g)
- The Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(o) and s. 31(j)
- The Commission has Guidelines for Interventions which are available here.
- For a detailed discussion of the Commission's role as an intervener click here. (2001)
- A table of all Interventions made by the Commission since 1988 is available in Word and PDF formats. (Last updated 06 June 2008)
CRIMINAL LAW
- Aboriginal customary law (group rights - article 27 ICCPR) v individual human rights and fundamental freedoms (freedom from violence and discrimination (CEDAW))
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DISABILITY DISCRIMINATION
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EMPLOYMENT LAW
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FAMILY LAW
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- Re Katie (1996) FLC 92-659;
- P & P: In the matter of ; Legal Aid Commission of New South Wales, Unreported, Moore J, 23 Sept 1994
- P v P; re Lessli (1995) FLC 92-615;
- Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Re Marion No 1)
- Re a Teenager (1988) 94 FLR 181;
- Proceedings involving child abduction cases
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HUMAN RIGHTS
- Aboriginal Deaths in Custody
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- The Right to Life
NATIVE TITLE
- Ben Ward obo Miriuwung and Gajerrong Peoples & Ors v State of WA & Ors, High Court of Australia, 6 -16 March 2001.
- Between Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors, High Court of Australia, M128 of 2001
RACE DISCRIMINATION
- Alcohol restrictions on Palm Island
- Morton v Queensland Police Service D75/08. (3 October 2008)
- Harassment in employment and standard of proof
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REFUGEE LAW
- Power to detain under s 196 of the Migration Act 1958 (Cth)
- Re Woolley; Ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49
- Al-Kateb v Godwin [2004] HCA 37
- Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38
- Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36
- Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70
- Minister for Immigration, Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390
- Section 474 ("the Privative Clause") of the Migration Act 1958 (Cth)
- Guardianship of unaccompanied children
- Access by people in detention to legal representatives
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- Rights of asylum seekers aboard the Tampa
- Victorian Council for Civil Liberties Incorporated and Vadarlis v Minister for Immigration & Multicultural Affairs & Ors [2001] FCA 1297 (Federal Court)
- Minister for Immigration & Multicultural Affairs & Ors v Vadarlis and VGCCL [2001] FCA 1329 (Full Federal Court)
- Vadarlis v Minister for Immigration & Multicultural Affairs & Ors - Link to transcript of Application for Special Leave to High Court of Australia
- Applications for refugee status as a result of the one child policy of the Peoples Republic of China
- C, L J & Z v Minister for Immigration and Ethnic Affairs, unreported, O'Loughlin J, 30 March 1995.
- Long Guan Chun, Li Liu Ying and Long Guan Juan v. Minister for Immigration, Local Government and Ethnic Affairs, Mr M.W. Gerkens and Human Rights and Equal Opportunity Commission (Intervener) Nos DG8, DG9 And DG10 of 1995 Fed No. 243/96
- Assessment of "sur place" claims
SEX DISCRIMINATION
- Sex-based insults and sexual harassment
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Information about the Amicus Curiae role
The Commissioners of the Australian Human Rights Commission have the function of assisting the Federal Court or Federal Magistrates Service as amicus curiae in discrimination matters. An amicus curiae is a "friend to the court" who assists the court on points of law in a particular case. Amicus are generally not parties to the proceedings, do not file pleadings or lead evidence and they may not lodge an appeal.The Commissioners' amicus curiae function can only be exercised with the leave of the Federal Court or the Federal Magistrates Service where the Court is hearing an application alleging unlawful discrimination under Division 2, Part IIB of the Human Rights and Equal Opportunity Commission Act. The Commissioner/s may seek leave to appear as amicus where:
1. the Commissioner thinks the orders may affect to a significant extent the human rights of persons who are not parties to the proceedings; or
2. the proceedings, in the opinion of the Commissioner, have significant implications for the administration of the relevant Act/s; or
3. the proceedings involve special circumstances such that the Commissioner is satisfied that it would be in the public interest for the Commissioner to assist the Court as amicus.
The Human Rights and Equal Opportunity Commission has produced Guidelines on Amicus interventions which are available here
For a detailed discussion of the Commission's role as amicus curiae click here.
If you have a matter involving a discrimination or human rights issue which falls within the Guidelines and you believe that a Commissioner could assist the Court as amicus curiae please contact the Legal Section of the Australian Human Rights Commission at legal@humanrights.gov.au.
The Amicus Curiae function has been used in the following cases:
Submissions of the Aboriginal and Torres Strait Islander and Social Justice Commissioner and Acting Race Discrimination Commissioner
Underpayment of Aboriginal Wages
- Giblet and others v Queensland QUD300/2005; 301/2005; 389/2005
- Submissions of the Aborignal and Torres Strait Islander Social Justice Commissioner on common difficulties facing Aboriginal witnesses (March 2007)
- Outline of the submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner (May 2006)
- Court's decision: http://www.austlii.edu.au/au/cases/cth/FCA/2006/537.html
Racial Vilification
Submissions of the Disability Discrimination Commissioner
Provision of services and jurisdiction of the DDA- Vijayakumar v Qantas (2008)
- Outline of submissions of the Acting Discrimination Commissioner (22 February 2008)
- Darina Maslauskas v Queensland Nursing Council (2008)
- Outline of submissions of the Acting Discrimination Commissioner (18 February 2008)
Access to Premises
- Kenneth Webb v Child Support Agency
- Outline of submissions of the Acting Discrimination Commissioner (21 May 2007)
- Courts decision: http://www.austlii.edu.au/au/cases/cth/FMCA/2007/1678.html
Assistance Animals
- Che Forest v Queensland Health, State of Queensland
- Submissions of the Acting Disability Discrimination Commissioner (July 2005)
- Court's decision: http://www.austlii.edu.au/au/cases/cth/FCA/2007/936.html
Application of the DDA
- Clarke v Oceania Judo Union
- Outline of submissions of the Acting Disability Discrimination Commissioner - on the issue of jurisdiction -
- Outline of submissions of the Acting Disability Discrimination Commissioner - for leave to appear as amicus (February 2007)
- Courts decision: http://www.austlii.edu.au/au/cases/cth/FMCA/2007/292.html
Standing under the DDA and HREOCA
- Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007)
- Outline of submission of the Acting Disability Discrimination Commissioner
- Court's decision: http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/615.html (2 May 2007)
- Court's decision on costs: http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/974.html (29 June 2007)
- Courts decision on amicus application: http://www.austlii.edu.au/au/cases/cth/federal_ct/2006/1214.html (5 September 2006)
Pre-employment medical testing
- Vickers v NSW Ambulance Service of NSW [2006] FMCA 1232
Access to Premises and Facilities
- Access for all Alliance (Hervey Bay) Inc v Hervey Bay City Council (2004)
Submissions of the Sex Discrimination Commissioner
Marital Status Discrimination
- AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071
- Decision - http://www.austlii.edu.au/au/cases/cth/federal_ct/2006/1071.html - Outline of submissions of the Sex Discrimination Commissioner (August 2006)
- Appeal decision: http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/140.html
Special Measures under the SDA
- Jacomb v Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1250
Part-time work and family responsibilities
- Howe v Qantas Airways Limited [2004] FMCA 242
- Decision: http://www.austlii.edu.au/au/cases/cth/FMCA/2004/242.html
- Decision on costs and damages http://www.austlii.edu.au/au/cases/cth/FMCA/2004/934.html - Outline of submissions by the Sex Discrimination Commissioner (April 2004)
- Supplementary submissions of the Sex Discrimination Commissioner (June 2004)
Pregnancy Discrimination and voluntary bodies
- Gardner v AANA Ltd [2003] FMCA 81
'Sporting Activity'
Ferneley v The Boxing Authority of New South Wales [2001] FCA 1740
- Decision : http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1740.html - Submission on Leave to Appear as Amicus Curiae (October 2001)
- Submissions on substantive application (October 2001)
http://www.hreoc.gov.au/legal/submissions_court/index.html
......................................................
Tomasevic
v Travaglini & Anor [2007] VSC 337 ( 13 September 2007)
In a
very significant decision, the Supreme Court of Victoria has considered the relevance and
application of the
human rights to equality before the law, access to justice and the right to a
fair
hearing under the ICCPR to the
right to a fair trial under Victorian law and the obligations of
the court to self-represented
litigants.
Facts
Mr
Tomasevic, a teacher with no legal background, was convicted by a magistrate on
a range of
criminal offences
on 23 May 2003. Unrepresented, he sought leave to proceed with an appeal
out of time before a
The judge did not direct Mr Tomasevic’s ‘attention – as a self-represented
litigant
- to
the salient points of law and procedure and refused the application’.
Mr
Tomasevic sought judicial review of the County Court decision before Bell J in the Supreme
Court. In judgment,
Bell J stated that:
This
case both requires and deserves an analysis of the law with respect to the duty
of a judge to
ensure
a fair trial by giving due assistance to a self-represented litigant, taking
into account the
fundamental
human rights of equality before the law and access to justice specified in the
International
Covenant on Civil and Political Rights.
Decision
The Court considered the ‘significance
of the human rights of equality before the law and access to justice’
and
stated:
56 The
right of every person to a fair criminal or civil trial, and the duty of every
judge to ensure it, is
deeply
ingrained in the law. Expressed in traditional terms, the right is inherent in
the rule of law –
indeed,
‘in every system of law that makes any pretension to civilisation’ – and in the
judicial
process.
Expressed in modern human rights terms, the right to a fair trial is important
for promoting
and respecting
equality before the law and access to justice.
57 The
numerous human rights specified in the ICCPR, including equality before the law and
access
to justice, form the basis of the human rights set out in Part 2 of the Charter
of Human
Rights
and Responsibilities Act 2006, which may be referred to, with a direct
simplicity that only
serves
to emphasise its historic significance, as the Charter.
58 The
Charter does not affect any proceedings commenced or concluded before the
commencement
of Part 2, which occurred on 1 January 2007. Like the proceeding brought against
the
accused in the case before King J in R v Williams, Mr Tomasevic’s proceeding in
the case
before
me was commenced before that date. Just as the Charter did not affect King J’s
consideration
of Mr Williams’ application, it does not affect my consideration of Mr
Tomasevic’s.
59
King J left open the important question of the extent to which, in cases to which the Charter
applies,
the courts are bound to apply the provisions of Part 2. That question does not
arise in the
present
case, for the Charter does not affect it. The question that does arise in the
present case is
whether,
apart from the Charter, the ICCPR
is relevant in any event.
60
Apart from the Charter, the ICCPR
does not ‘operate as a direct source of individual rights and
obligations’
because it has not otherwise been incorporated into Australian law. But like other
international
instruments to which Australia is a party, the ICCPR has an independent and
ongoing
legal
significance in Australian
and therefore Victorian domestic law, a significance which is not
diminished,
but can only be enhanced, by the enactment of the Charter.
61
What is that significance? Subject to certain limitations and to an evolving
extent, the ICCPR,
and
those other instruments, may at least inform the interpretation of statutes (so
as to be
consistent
with and not to abrogate international obligations), the exercise of relevant
statutory and
judicial
powers and discretions, the application and operation of the rules of natural
justice, the
development
of the common law and judicial understanding of the value placed by contemporary
society
on fundamental human rights. In this regard, I would endorse, with respect, the
remarks of
Maxwell
P in Royal Women’s Hospital v Medical Practitioners Board of Victoria about the need to
consider
arguments based on Australia’s international legal obligations in
appropriate cases.
62
Therefore, even though the Charter does not affect my consideration of Mr Tomasevic’s
application
for judicial review, I think the ICCPR
does. To determine the application, it will
necessary
for me to identify what was required for the proper performance of the duty of
the trial
judge
to ensure a fair trial by giving due assistance to Mr Tomasevic as a
self-represented litigant.
I
think this should be done in terms that take into account the importance of
that duty in promoting
and
respecting the fundamental human rights of equality before the law and access
to justice which
are
specified in the ICCPR.
63 I
could decide this case by reference only to the judge’s duty to ensure a fair
trial. If that is so,
you
might ask, why should I also refer to the human rights issues that the case
raises?
64 I would
answer that Australia may be an island geographically, but
in international law terms, we
are
not. Australia has chosen to become a party to the ICCPR, and so has undertaken
to promote
and
respect the human rights of equality before the law and access to justice,
which are universal
and
fundamental. This case concerns the inherent duty of a judge to ensure a fair
trial by giving
due
assistance to a self-represented litigant. It therefore raises issues of direct
practical
importance
to the promotion and respect of those rights. The inherent duty to ensure a
fair trial and
the
human rights of equality before the law and access to justice may be said to
breathe the same
air.
Without impairing, indeed by asserting, the independence of our own law, judges
can, and in
my
view should, act consistently with the international obligations specified in
the ICCPR by
accepting
that, when appropriate, the exercise of relevant judicial powers and
discretions, such as
the
duty to ensure a fair trial, can take into account the human rights specified
in the ICCPR. That,
I
think, is the state and rationale of the current law. Of course the inherent
duty to ensure a fair trial
always
remains the source of the binding law, but its nature is better understood, its
function in the
law is
strengthened, its application is more penetrating and its capacity to evolve is
enhanced once
it is
appreciated that its performance has an international dimension.
Justice
Bell then went on to consider relevant domestic jurisprudence on the right to a
fair trial and
of the
court to
self-represented litigants and concluded:
127
Every judge in every trial, both criminal and civil, has an overriding duty to
ensure the trial is
fair.
A fair trial is the only trial a judge can judicially conduct. The duty is
inherent in the rule of law
and
the judicial process. Equality before the law and equal access to justice are
fundamental
human
rights specified in the ICCPR.
The proper performance of the duty to ensure a fair trial
would
also ensure those rights are promoted and respected.
128
Most self-represented persons lack two qualities that competent lawyers possess
- legal skill
and
ability, and objectivity. Self-represented litigants therefore usually stand in
a position of grave
disadvantage
in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a
fair
trial
by giving self-represented litigants due assistance. Doing so helps to ensure
the litigant is
treated
equally before the law and has equal access to justice.
129
The matters regarding which the judge must assist a self-represented litigant
are not limited,
for
the judge must give such assistance as is necessary to ensure a fair trial. The
proper scope of
the
assistance depends on the particular litigant and the nature of the case. The
touchstones are
fairness
and balance. The assistance may extend to issues concerning substantive legal
rights as
well
as to issues concerning the procedure that will be followed.
Justice
Bell concluded that, by reference to these principles, the County Court had failed to accord
T exercise jurisdiction.
His Honour ordered that Mr Tomasevic’s application for leave
to appeal be
remitted to the County
Court for
reconsideration according to law.
http://www.austlii.edu.au/au/cases/vic/VSC/2007/337.html
......................................................
Supreme
Court of Victoria Considers and Applies ICCPR in the Context of the
Right to a Fair
Trial and the Obligations of a Court to Self-Represented
Litigants
..........................................................
137 These guidelines have been cited with approval by courts in a number of Australian jurisdictions, including the Federal Court of Australia[175] and the Supreme Courts of Victoria,[176] Tasmania[177] and South Australia.[178] I too think they give useful guidance on how the duty of the trial judge might be performed. But of course, they are guidelines, not grooves in which the performance of the duty must run.
138 On the basis of this analysis, I think I can summarise the law as it currently stands.
139 Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.
140 Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
141 The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.
142 The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.
143 It remains to apply these principles to the present case.
145 Mr Tomasevic’s application was for leave to proceed with an appeal against findings of guilt and sentence of a magistrate that was three years out of time. The judge had to apply cl 1(3) of Schedule 6 of the Magistrates’ Court Act 1989, which required Mr Tomasevic to establish that, in the judge’s opinion, the delay in bringing the appeal was due to exceptional circumstances and that, to the judge’s satisfaction, the informant’s case would not be materially prejudiced. In support of his application, Mr Tomasevic filed an affidavit with a folder of material, much of which was not relevant.
146 In these circumstances, I think the judge had a duty to -
148 Not all of these measures of assistance were equally important. But failing to assist in all of these ways was collectively significant and, with respect, amounted to a failure on the part of the judge to ensure a fair trial. The informant’s legal representatives did not contribute to this failure, for the judge strongly dictated the course that the hearing followed. The failure constituted a breach of the rules of natural justice,[179] which is a form of jurisdictional error. The breach was not a mere technical breach which made no difference to the outcome of the case, but represented a substantial departure from what was required.
149 This ground of judicial review will also be upheld.
......................................................................
Contact us.
Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007)
Last Updated: 15 November 2007
AT MELBOURNE
No. 8658 of 2006
DANNY TRAVAGLINI
|
First defendant
|
||
COUNTY COURT OF VICTORIA
|
Second defendant
|
||
WHERE HELD:
|
Melbourne
|
||
DATE OF HEARING:
|
|||
CASE MAY BE CITED AS:
|
|||
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CRIMINAL LAW – practice and procedure – self-represented
litigant – application for leave to appeal out of time against decision of
magistrate – judge of County Court of Victoria refused to grant leave - judge’s
duty to ensure fair trial by giving due assistance – nature and scope of duty –
significance of International Covenant on Civil and Political Rights –
significance of human rights of equality before the law and access to justice –
judge failed to perform duty to assist – breach of rules of natural justice –
test for granting leave – “exceptional circumstances” and prosecution not
“materially prejudiced” – judge applied incorrect test of delay “too great” –
jurisdiction not properly exercised – judicial review granted – order refusing
leave quashed and matter remitted for reconsideration – Magistrates’
Court Act 1989, Schedule 6, cl 1(1)-(3).
HUMAN RIGHTS – international law - significance of
international obligations in Australian and Victorian domestic law - International
Covenant on Civil and Political Rights – human rights of equality before
the law and access to justice – relevance to exercise of judicial powers and
discretions – significance and relevance independent and ongoing – not
diminished, only enhanced, by Charter
of Human Rights and Responsibilities
Act 2006 - self-represented litigant - duty of courts and tribunals to
assist – scope and application of duty.
---
APPEARANCES:
|
Counsel
|
Solicitors
|
For the plaintiff
|
The plaintiff appeared on his
own behalf
|
|
For the first defendant
|
Mr T Lynch
|
Angela Cannon, Solicitor for
Public Prosecutions
|
INTRODUCTION
1 Milan Tomasevic had no legal background and was emotionally engaged
in his case. But when he appeared before a judge of the County Court of
Victoria, he represented himself. He sought leave to proceed with an appeal out
of time in respect of criminal charges found proven by a magistrate. Danny
Travaglini is the police informant who brought the criminal charges against Mr
Tomasevic. He was represented by an experienced barrister instructed by a
solicitor, who opposed leave.
2 Mr Tomasevic harboured a strong sense of grievance about
the magistrate’s decision. He contended the finding of guilt had occurred by
reason of poor legal representation. He also contended he had abandoned an
earlier appeal because the same lawyer had incorrectly told him his career as a
teacher would not be affected.
3 The judge did not tell Mr Tomasevic, but the law
governing the leave to proceed application required Mr Tomasevic to establish,
one, that he had failed to appeal within time by reason of exceptional
circumstances and, two, that the informant’s case would not be materially
prejudiced by the delay.
4 Mr Tomasevic did his best in what turned out to be a
short hearing. The judge did not direct his attention – as a self-represented
litigant - to the salient points of law and procedure. Counsel for the
informant barely had to open his mouth. The judge, without mentioning either
exceptional circumstances or the informant’s case, refused the application. He
just said the delay - three years - had been too great.
5 Mr Tomasevic now seeks judicial review of the judge’s
decision. He wants orders quashing the decision and remitting it back to the
County Court for reconsideration.
6 This case both requires and deserves an analysis of the
law with respect to the duty of a judge to ensure a fair trial by giving due
assistance to a self-represented litigant, taking into account the fundamental
human rights of equality before the law and access to justice specified in the
International Covenant on Civil and Political Rights. We must go into some
other matters first, beginning with the decision of the magistrate.
THE DECISION OF THE MAGISTRATE
7 Mr Tomasevic was charged with nine offences:
• three charges of making threats to kill (charges 1, 4 and
7)
• three charges of making threats to inflict serious injury
(charges 2, 5 and 8)
• three charges of using threatening words in a public
place (charges 3, 6 and 9)
8 The charges arose out of incidents alleged to have
occurred at a school where Mr Tomasevic was a teacher. The background
circumstances are rather unclear. From what I can gather, in 1999-2000 Mr
Tomasevic had complained that another member of staff had misappropriated
money. The school management considered Mr Tomasevic was medically unfit to
teach and suspended him from duty or, as he put it, he took “sick leave without
pay”.
9 The incidents allegedly occurred in or near the school
grounds in 2002 – as to charges 1, 2 and 3, on 28 February 2002; as to charges 4, 5 and 6, on 1 March 2002; and as to charges 7, 8 and 9, in the same general period.
In respect of each alleged incident, three separate persons had reported Mr
Tomasevic’s conduct to the police.
10 Mr Tomasevic was to be represented at the hearing before
the magistrate by a barrister who was familiar with his case. That barrister
could not attend due to ill-health. No adjournment was sought. Mr Tomasevic was
represented by a legal aid solicitor who took over the case on the day of the
hearing.
11 The contested hearing before the magistrate went for one
day on 22
May 2003.
12 The prosecutor called the three complainants. Each of them
gave evidence to the magistrate about what Mr Tomasevic said and did on the
three occasions. They were each cross-examined by the solicitor.
13 As to the incident on 1 March 2002, the transcript of the hearing reveals the solicitor
challenged the complainant’s version of what happened according to detailed
instructions from Mr Tomasevic. It transpired that Mr Tomasevic had a tape
recording of the incident, which the solicitor knew. Mr Tomasevic told me he
asked the solicitor to use the recording in her cross-examination of a critical
prosecution witness, but she said it was unnecessary. For whatever reason – and
the solicitor may have had a forensic reason - she did not put the recording to
that witness. When Mr Tomasevic gave evidence in his own defence, the solicitor
attempted to elicit evidence of the recording from him. The magistrate refused
to allow her to do so.
14 It is here necessary to make an important digression. I
do not know the magistrate’s reason for refusing to allow Mr Tomasevic to give
the tape recording evidence, and this issue was not argued before me. But if,
as appears to be the case, the reason was that, in breach of the rule in Browne
v Dunn,[1] the recording had not been put to the
prosecution witness, I have reached the clear view it was not correct. This
certainly does not affect the outcome of the application before me. But in view
of the significance of the point, I think I should give my reasons for reaching
that conclusion.
15 As the authorities presently[2] stand, I think the rule in Browne v Dunn
applies in a criminal trial in Victoria, with serious qualifications,[3] to oblige counsel for the defence, at least
in the usual case, to put evidence intended to be given for the defence to the
relevant prosecution witnesses.[4] This is the explanation of the rule recently
given by the Court of Appeal in R v Demiri:
In the context of the cross-examination of a prosecution
witness, the rule of law and practice is necessary to give the witness the
opportunity to deal with such evidence – or such inferences as may be drawn
from the evidence – as the accused proposes to rely upon and which contradict
the testimony of the witness. Such a challenge to the witness’s testimony is
also essential to the jury’s understanding of what facts are truly in issue. It
enables the jury to make an assessment of the credibility of the witness in
relation to those issues. [5]
16 But the consequences of the breach of the rule in a
criminal trial have to be approached with considerable care. As stated by
Gleeson CJ and Heydon J in MWJ v R:
The principle of fair conduct on the part of an advocate,
stated in Browne v Dunn, is an important aspect of the adversarial system of
justice. It has been held ... to apply in the administration of criminal
justice, which, as well as being accusatorial, is adversarial... However, for
reasons explained, for example, in R v Birks,[6] and R v Manunta,[7] it is a principle that may need to be applied
with some care when considering the conduct of the defence at a criminal trial.
Fairness ordinarily requires that if a challenge is to made to the evidence of
a witness, the ground of the challenge be put to the witness in cross-examination.
This requirement is accepted, and applied day by day, in criminal trials.
However, the consequences of a failure to cross-examine on a certain issue may
need to be considered in the light of the nature and course of the proceedings.[8]
17 The very basis of the rule calls for the application of
that care: it is designed to give fairness to witnesses and to ensure a fair
trial between the parties.[9] As Gleeson CJ said in R v Birks:
There are some obvious difficulties concerning the
operation of the rule in criminal trials. The notion of fairness, whilst it has
relevance to criminal as well as civil proceedings, may have a somewhat
different practical content in a criminal trial. Furthermore an accused at a
criminal trial may be unrepresented, and it would ordinarily be quite
inappropriate to expect such a person to be bound by, and suffer the
consequence of a breach of, what was originally described in the House of Lords
as “a rule of professional practice”. [10]
18 The fairness owed by a court to a self-represented
accused in a criminal trial will attract our later attention.
19 In New South Wales, a trial judge has the power to do
what the magistrate apparently did in the present case, namely to reject the
admission of evidence of the party who did not comply with the rule in Browne v
Dunn; that power is available to reject the evidence of an accused in a
criminal trial[11] and, as an extremely abnormal step, of a
party in a civil trial.[12] As has been pointed out, R v Schneidas (No
2)[13] is perhaps the only reported case of the
exercise of this “exceptional” power in a criminal case.[14] Without ever doubting that the power can go
that far, subsequent authorities in New South Wales have emphasised that the
trial judge has to determine the consequences of a breach of the rule in a
criminal case with due circumspection.[15]
20 In Victoria, McGarvie J in R v Allen[16] refused to follow R v Schneidas (No 2)[17] and held that a trial judge here does not
have the power to refuse to admit defence evidence that, in a criminal trial,
was not put to prosecution witnesses in accordance with the rule in Browne v
Dunn. The decision in R v Allen was based in part on the influential decision
of Newton J in Bulstrode v Trimble[18] in which his Honour decided the rule did not
preclude a party, in any trial, from adducing and relying on evidence tendered
in its breach.[19] I have found no decision of the Court of
Appeal of this Court or the High Court on this point.
21 As I held in Shaw v Yarranova,[20] in the absence of a binding decision of the
Court of Appeal or the High Court, it is the duty of a trial judge of this
Court personally to determine the case before him or her. That responsibility
is not performed where the judge fails to so determine the matter, preferring
instead simply to follow an earlier decision on point of another member of the
Court.
22 But, where there is an earlier decision of a single
judge of this Court on point, the judge does not start writing on a blank page.
Proper regard must be given to the previous judgment. Considerations of comity,
and the interests of justice, require the previous decision to be followed
unless the judge attains a higher than usual standard of conviction that his or
her contrary conclusion is correct.
23 I take this rule of precedent to be well expressed by
Burchett J in La Macchia v Minister for Primary Industries and Energy:
The
doctrine of stare decisis does not, of course, compel the conclusion that a
judge must always follow a decision of another judge of the same court. Even a
decision of a single justice of the High Court exercising original
jurisdiction, while “deserving of the closest and respectful consideration”,
does not make that demand upon a judge of this court: Businessworld
Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR
499 at 504. But the practice in England, and I think also in Australia, is that
“a judge of first instance will as a matter of judicial comity usually follow
the decision of another judge of first instance [scil of coordinate
jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury,
4th ed, vol 26, para 580. The word “usually” indicates that the
approach required is a flexible one, and the authorities illustrate that its
application may be influenced, either towards or away from an acceptance of the
earlier decision, by circumstances so various as to be difficult to comprehend
within a single concise formulation of principle. (For example, it has been
suggested that decisions upon the effect of sections of the Income
Tax Assessment Act 1936 (Cth)
present a special need for consistency: Rabinov v FCT 82 ATC 4517 at
4523.) Understood as expressing a usual or general rule, the following
statement of Rogers J in Hamilton Island Enterprises Pty Ltd v FCT
[1982] 1 NSWLR 113 at 119 is consistent with the proposition I have quoted from
Halsbury:
“In my view it is of cardinal importance in the proper
administration of justice that single judges of State Supreme Courts exercising
federal jurisdiction should strive for uniformity in the interpretation of
Commonwealth legislation. Unless I were of the view that the decision of
another judge of coordinate authority was clearly wrong I would follow his
decision.” [21]
24 Thus, unless I am convinced that the decisions of
McGarvie J and Newton J are clearly wrong, I should follow them.
25 With respect, I think R v Allen[22] and Bulstrode v Trimble[23] were correctly decided. In Victoria, a court cannot prevent the defence from giving otherwise
admissible evidence, even if the rule in Browne v Dunn was not complied with.
If the evidence is relevant to the determination of the charges brought against
the accused, to exclude it would run counter to the court’s fundamental
obligation to ensure a fair trial.[24] A rule grounded in fairness can never be
applied to produce a result so unfair as the exclusion of evidence going to the
question whether a person is guilty or not guilty of a criminal charge. The
court has ample discretionary power to address any unfairness to the
prosecution case that might arise by reason of the admission of the evidence in
such circumstances.[25] That power extends, in appropriate cases, to
making comment on the failure of the defence to cross-examine on the evidence[26] and, more fundamentally, to allowing the
recalling of the relevant witnesses or the calling of further evidence in
reply.[27]
26 That completes the digression. I can now return to the
main path.
27 So it was because the tape recording evidence was
excluded that Mr Tomasevic feels strongly aggrieved about the hearing before
the magistrate. I understand these feelings but, beyond saying what I have
about the legal principles involved, it is not my function in this judicial
review application to unravel the rights and wrongs of these matters. It was
for this reason that I refused to allow Mr Tomasevic to call the solicitor who
represented him as a witness in the proceeding before me.
28 The magistrate reserved her decision overnight. On 23 May 2003 she announced these findings:
• found proven: charges 4 (threatening to kill on 1 March 2002), 6 (using threatening words in a public place on that
date) and 9 (the same charge in about the same period)
• found not proven and dismissed: charges 1, 2 3, 5, 7 and
8
29 The magistrate heard submissions on sentence from Mr
Tomasevic’s solicitor. She submitted he should not be convicted and the
imposition of a bond would adequately dispose of the matters. Among other
things, she further submitted Mr Tomasevic was under a great deal of stress at
the time of the incidents as he was separated from his wife and children, was
going through difficult Family Court proceedings and was taking medication for
depression. She submitted the context of the incidents was his complaint that a
fellow teacher had misappropriated money.
30 In sentencing Mr Tomasevic, the magistrate referred to
his many problems and personal difficulties and the reasons why he was no
longer working at the school. Her Honour said she accepted the context of the
threats had been the dispute over the alleged missing money, but the charges –
especially that of threatening to kill – were very serious. She said she would
not convict Mr Tomasevic because – you’ve got no prior convictions and your hopeful prospect
is that you will be able to teach again ... I think the best thing is that you
continue to see your doctor.
31 Her Honour found charges 4, 6 and 9 proven without
conviction and adjourned the hearing until 21 May 2004. She released Mr Tomasevic on his own undertaking to be of
good behaviour, not to commit any further offences, to attend his psychiatrist
to receive counselling and treatment and to appear on the adjourned date if
called on to do so. Clearly this was a merciful – and appropriately merciful –
sentence.
32 Mr Tomasevic gave the undertakings asked of him. He told
me he did so because he did not understand the findings of guilt and sentence
could affect his future employment as a teacher. He said the legal aid
solicitor advised him that his career would not be affected because he had not
been convicted. He relied on this advice when he abandoned his appeal. He did
not explain why, in the light of such advice, he appealed in the first place.
33 The Department of Education and Training later dismissed
Mr Tomasevic from the government teaching service. He told me that, when he
gave the undertakings and abandoned his appeal, he did not understand the
findings and sentence could lead to this result. For reasons I will come to, I
do not think they did. The Victorian Institute of Teaching is considering
whether to cancel Mr Tomasevic’s registration as a teacher. This matter, also,
I will come to later. I fist have to deal with the abandoned appeal.
THE ABANDONED APPEAL
34 Clause 1(1) of Schedule 6 of the Magistrates’
Court Act 1989
required an appeal to be brought within 30 days after the decision of the
magistrate. By a notice dated 12 June 2003,
some three weeks after the hearing before the magistrate and well within time,
Mr Tomasevic appealed against her Honour’s decision, both as to the findings of
guilt and the sentence.
35 Clause 6(2) and (2A) of Schedule 6 allowed an appeal to
be abandoned within the same 30 day period specified in clause 1(1). The
records of the County Court reveal Mr Tomasevic abandoned his appeal before a
deputy registrar on Monday 23 June 2003. Taking into account that the 30 day period expired on Sunday 22 June 2003, the abandonment was within time, as it took place on the
next working day.[28]
36 The informant’s solicitor has filed an affidavit in this
Court that gives a very fair account of the proceeding before the judge. Mr
Tomasevic took no issue with this account. It shows the judge asked Mr
Tomasevic why he abandoned his appeal. He told the judge it was because the
three charges were found proven without conviction and he was advised by his
solicitor that his employment as a teacher would not be affected. This is
consistent with what he has told me.
37 As to why he waited until July 2006 to try to reactivate
his appeal, Mr Tomasevic told me it was only when the Victorian Institute of
Teaching sent him a notice of formal hearing that he realised the findings and
sentence could affect his employment. Section
28 of the Victorian
Institute of Teaching
Act 2001 requires the Institute to conduct an inquiry into the fitness to
teach of any teacher convicted or found guilty of an indictable offence.
Threatening to kill is an indictable offence. Part
4 of the Act contains a disciplinary regime which gives the Institute
various powers of inquiry, including powers to conduct a formal hearing, which
may lead to the cancellation of the registration of a teacher. The Institute’s
notice[29] was undated but it advised of a formal
hearing on 16 and 17 March 2006.
Mr Tomasevic said that, when he got the notice, he realised it had been a
mistake to abandon the appeal.
38 The Institute’s hearing was adjourned. Mr Tomasevic told
me it remains adjourned pending the outcome of this judicial review
application.
39 In the hearing before me, it became clear that two years
earlier – in 2004 – the incident that gave rise to the magistrate’s finding of
guilt on the charge of threatening to kill was the subject of consideration at
a hearing before a delegate under the Teaching
Service Act 1981. Soon afterwards, Mr Tomasevic was dismissed from the
government teaching service. That was only 12 months or so after the
magistrate’s decision and the alleged giving of the solicitor’s advice. As we
will now see, Mr Tomasevic used the hearing before the delegate to have the
tape recording put to the particular complainant. But he has not explained why
he did not try to reactivate his appeal at that time.
THE HEARING UNDER THE TEACHING
SERVICE ACT
40 The matters discussed under this heading were not
considered by the judge because they were not raised with him. They were raised
only before me. As my view is that the judicial review application is to
succeed, they may be considered by the judge of the County Court who hereafter
reconsiders Mr Tomasevic’s application.
41 On 8 June 2004,
Mr Tomasevic appeared before a delegate in a hearing under s
45 of the Teaching
Service Act. That section allows the Secretary to inquire into the fitness,
capacity and efficiency of teachers (who are officers of the teaching service)
to discharge their duties (sub-s (1)) and to dispense with their services if
found to be unfit (sub-s (3)(e)).
42 I have in evidence a transcript of the hearing. The
judge was not given that transcript. I do not have the decision of the delegate
or her reasons. But Mr Tomasevic told me that on 3 October 2004 he was dismissed as a government teacher. He said this was
because he was found not to be mentally fit, and his personality was not
appropriate, to be a teacher. He told me it was not because of the criminal
charges or the magistrate’s findings and sentence. He has not been employed as
a teacher ever since.
43 The transcript of the hearing shows evidence was given
by the same person who gave evidence to the magistrate in respect of the
incident that occurred on 1 March 2002 – the one involving the threat to kill
charge that was found proven. It was this witness to whom the tape recording
was not put in cross-examination by Mr Tomasevic’s solicitor at the hearing
before the magistrate.
44 This time, the recording was put to the witness by
counsel for Mr Tomasevic. The circumstances were not ideal, for the witness
gave evidence by telephone from his location in Norway. A written statement, the transcript of the hearing before
the magistrate and the details of her Honour’s findings and sentence were
admitted into evidence by the delegate. The witness was cross-examined by
counsel for Mr Tomasevic. The witness said Mr Tomasevic was excluded from
teaching at the school because of issues related to an issue, possibly of
mental illness. The tape recording was played to the witness, who said he could
hear it with great difficulty.
45 The tape recording did not contain the threat to kill
that the witness deposed was made by Mr Tomasevic. Counsel challenged the account
of the witness on this basis. The witness strongly maintained his evidence. He
said the recording was not complete and he had a clear recollection of what was
said, which led him to record and report the matter at the first opportunity.
46 What occurred in this hearing may be relevant to whether
Mr Tomasevic must have known in 2004 that the decision of the magistrate might
affect his future employment as a teacher, if that is an issue in the
reconsideration.
THE DECISION OF THE JUDGE TO REFUSE LEAVE
47 Mr Tomasevic’s application for reinstatement of his
abandoned appeal, or alternatively for leave to proceed with an appeal out of
time, was lodged with the County Court on 13 June 2006. It was supported by an affidavit sworn by Mr Tomasevic.
It had many attachments relating mainly to issues associated with his alleged
unsatisfactory performance as a teacher.
48 The application was heard and determined by the judge on
the same day. I infer that the hearing was pre-arranged, albeit on short
notice, as the informant’s counsel and solicitor were in attendance. I infer
that, before coming onto the bench, the judge had Mr Tomasevic’s affidavit and
attachments, both because the hearing was pre-arranged and because his Honour’s
questions show he had some familiarity with the issues raised by the
application.
49 The informant’s solicitor’s affidavit sufficiently
describes what occurred, and what did not occur, at the hearing.
50 The judge told Mr Tomasevic he had to obtain leave to
appeal out of time as he had abandoned his appeal. This was plainly correct,
and Mr Tomasevic’s application for judicial review must fail to the extent that
it calls that matter into question. His Honour then made a number of other
points to Mr Tomasevic about the application. His Honour then allowed him to
respond. At one stage his Honour asked Mr Tomasevic to stop making speeches.
The judge gave Mr Tomasevic the opportunity to explain why he had abandoned his
earlier appeal and why he was applying for leave three years after the decision
of the magistrate. As I have already noted, he said it was because he had been
told the magistrate’s findings of guilt without conviction and sentence would
not affect his employment.
51 The judge did not:
• acknowledge Mr Tomasevic was appearing without legal
representation against an informant who was represented
• explain to Mr Tomasevic the procedure that would be
followed
• explain to Mr Tomasevic the legal requirements he had to
satisfy in order the obtain leave to appeal out of time, namely, that he had
failed to apply within time by reason of exceptional circumstances and that the
informant’s case would not be materially affected; nor did his Honour invite
submissions from Mr Tomasevic on those requirements
• explain to Mr Tomasevic how he might go about arguing his
case or assist him to do so in any way
• when he told Mr Tomasevic to stop making speeches, go on
to tell him what matters may be relevant to his application about which he
could make submissions
• offer Mr Tomasevic an adjournment to obtain legal
representation
• ask for elaboration of any of Mr Tomasevic’s submissions
52 The solicitor’s affidavit shows the hearing was short
and the informant’s counsel was called on to say very little. The judge said
“the delay of three years was too great and that he would not get reinstatement
or leave to appeal out of time.” His Honour gave no other reasons.
53 The records of the County Court show that, on 13 July 2006, the judge refused to grant Mr Tomasevic’s application for
reinstatement of the appeal or leave to appeal out of time. He ordered that the
application be struck out and that the orders of the magistrate on 23 May 2003 were to stand.[30]
THE APPLICATION FOR JUDICIAL REVIEW
The grounds of the application
54 The application for judicial review was made by an
originating motion dated 12 September 2006 and a summons dated 13 September 2006. The application was made one day after the 60 days specified in the Supreme Court
Rules.[31] With no opposition from the informant, I
extend the time by that day.
55 This is an application for judicial review of a decision
of a judge of the County Court. It is not an appeal from the decision of the
judge. It is not part of my function to re-decide the application for
reinstatement or leave on the merits. In the present case, the application can
only succeed if Mr Tomasevic establishes that the judge made a jurisdictional
error, an error of law on the face of the record or breached the rules of
natural justice. I am confined to examining grounds that potentially fall into
these categories.
56 As I have said, Mr Tomasevic is not a lawyer. But both
in the originating motion and the hearing before me, he has done his best to
express his grounds in an appropriate way. I think this is a reasonable summary:
• the judge applied the wrong test
• the judge did not perform his duty to give Mr Tomasevic,
as a self-represented litigant, certain guidance and assistance and thereby
breached the rules of natural justice
• the judge should have accepted Mr Tomasevic’s reasons for
delaying three years, which principally related to his solicitor’s failure to
cross-examine the witness on the tape recording and her poor advice that the
decision of the magistrate would not affect his future employment as a teacher
• the judge ignored the fact that the impact of his
decision on Mr Tomasevic would be catastrophic, as the formal hearing before
the Institute will proceed and he may never be able to teach again
• the judge did not properly consider Mr Tomasevic’s
material, as he heard and determined the application on the same day
• the judge ignored the fact that Mr Tomasevic has a good
case to run in the appeal, for he will be able to use the tape recording and
certain other material to undermine the case against him
57 I think the application must succeed on two grounds of
jurisdictional error: the judge applied the wrong test, and failed to perform
his duty to give due assistance to Mr Tomasevic as a self-represented litigant,
which breached the rules of natural justice. I do not need to consider the
others.
THE JUDGE APPLIED THE WRONG TEST
58 The jurisdiction that the judge was exercising was the
one conferred by cl 1(3)(a) and (b) of Schedule 6 of the Magistrates’
Court Act 1989 to allow an appeal to proceed even though the notice of
appeal was not given in time. By cl 1(1), a notice to appeal under s
83 and 84
of the Act must be given within 30 days after the decision of the magistrate.
Mr Tomasevic’s notice being three years out of time, the judge had to decide
whether he was of the opinion that the failure to give the notice within the
specified 30 day period was due to exceptional circumstances (par (a)) and
whether he was satisfied that the informant’s case would not be materially
prejudiced by the delay (par (b)). The proper exercise of this jurisdiction
required the judge to apply the correct test.[32]
59 When a judge is deciding whether, in his or her opinion,
there are exceptional circumstances, it is the reasons for the failure to give
the notice within the specified time that must be exceptional:
The sub-section requires one to look at the circumstances
giving rise to the litigant’s failure to appeal within time. If those circumstances
can properly be characterised as exceptional then leave to appeal out of time
will be granted. If they cannot, then leave will be refused.[33]
60 It follows that an application for leave to proceed with
an appeal out of time can be granted whether the delay is short or long. In a
case where the delay is short, leave to proceed may be more readily granted,
for it may be easier to establish that the delay was due to exceptional
circumstances, there being less of a delay to explain, and it being less likely
that the informant’s case will be materially prejudiced. In a case where the
delay is long, leave to proceed may be more reluctantly granted, for it may be harder
to establish that the delay was due to exceptional circumstances, there being
more of a delay to explain, and it being more likely that the informant’s case
will be materially prejudiced. But in applying the statutory test, the focus
must be on whether the failure to give the notice within the specified time was
due to exceptional circumstances and on whether the informant’s case will be
materially prejudiced, not on whether the delay was short or long. It is an
exceptional circumstances test, not a long delay test.
61 I have considered whether the judge, despite the
language he used to express his conclusion, nonetheless applied the correct
test. I think he did not.
62 I have to conclude from the solicitor’s affidavit that
the judge focused on the question of delay and not the reasons for it. His
Honour did not mention the issue of material prejudice to the informant’s case.
He seems to me to have reasoned from the length of the delay – three years – to
the conclusion that the application must be rejected. The judge should have
considered whether he was of the opinion that the circumstances giving rise to
the delay were exceptional, and whether he was satisfied that delay would not
materially prejudice the informant’s case, and decided the case on that basis.
With respect, he appears to have given scant consideration to the reasons
offered by Mr Tomasevic for the delay, which should have been given proper
consideration against the correct statutory test. His Honour heard very little
from counsel for the informant, whose submissions, I am confident, would have
addressed the application of that test. I do not think the judge applied the
exceptional circumstances test specified in the legislation. I think he applied
a long delay test – whether it was “too late” to appeal.
63 I am not suggesting that the judge was bound to accept
Mr Tomasevic’s explanation for abandoning his appeal, and then appealing again
three years later, as constituting exceptional circumstances. Indeed, some
features of the explanation and his conduct over the relevant time period seem
hard to reconcile. These matters will be for the judge conducting the
reconsideration to assess, against the correct test.
64 The judge’s failure to apply the correct test meant that
he did not properly exercise the jurisdiction conferred by cl 1(3) of Schedule
6, which constituted a jurisdictional error. This ground of judicial review
will therefore be upheld.
65 That brings me to the promised analysis of the duty of a
trial judge to assist a self-represented litigant.
THE DUTY OF A TRIAL JUDGE TO ASSIST A SELF-REPRESENTED
LITIGANT
The significance of the human rights of equality before the
law and access to justice
66 Picture in your mind a deaf mute, sitting vulnerably in
court while his case is being argued. The trial judge exercises his judicial
discretion to direct that counsels’ submissions not be interpreted. As any
artist will tell you, things are very clear at the extremes. The Court of
Appeal of New South
Wales saw the
injustice of this situation very clearly and ruled that the trial judge’s
discretion had miscarried.[34] In doing so, nearly twenty years ago, Kirby
P and Samuels and Clarke JJA took into account the human rights specified in
the International Covenant on Civil and Political Rights to which Australia is
a party, including equality before the law[35] and access to justice,[36] and their offspring, the right to have an
interpreter.[37]
67 Now the present case is not so clear, for Mr Tomasevic
was not a deaf mute. But Mr Tomasevic was equally dependant on the trial judge
to exercise his judicial powers to ensure his application was fairly heard,
which required to the judge to give him due assistance as a self-represented
litigant.
68 The right of every person to a fair criminal or civil
trial, and the duty of every judge to ensure it, is deeply ingrained in the
law. Expressed in traditional terms, the right is inherent in the rule of law –
indeed, “in every system of law that makes any pretension to civilisation”[38] – and in the judicial process.[39] Expressed in modern human rights terms, the
right to a fair trial is important for promoting and respecting equality before
the law and access to justice.
69 The numerous human rights specified in the ICCPR,
including equality before the law and access to justice, form the basis of the
human rights set out in Part
2 of the Charter
of Human Rights and Responsibilities Act 2006, which may be referred to,
with a direct simplicity that only serves to emphasise its historic
significance, as the Charter.[40]
70 The Charter does not affect any proceeding commenced or
concluded before the commencement of Part
2,[41] which occurred on 1 January 2007.[42] Like the proceeding brought against the accused
in the case before King J in R v Williams,[43] Mr Tomasevic’s proceeding in the case before
me was commenced before that date.[44] Just as the Charter did not affect King J’s
consideration of Mr Williams’ application,[45] it does not affect my consideration of Mr
Tomasevic’s.
71 King J left open the important question of the extent to
which, in cases to which the Charter applies, the courts are bound to apply the
provisions of Part
2.[46] That question does not arise in the present
case, for the Charter does not affect it. The question that does arise in the present
case is whether, apart from the Charter, the ICCPR is relevant in any event.
72 Apart from the Charter, the ICCPR does not “operate as a
direct source of individual rights and obligations”[47] because it has not otherwise been
incorporated into Australian law.[48] But like other international instruments to
which Australia is a party, the ICCPR has an independent and ongoing legal
significance in Australian and therefore Victorian domestic law, a significance
which is not diminished, but can only be enhanced, by the enactment of the
Charter.
73 What is that significance? Subject to certain
limitations and to an evolving extent, the ICCPR, and those other instruments,
may at least inform the interpretation of statutes (so as to be consistent with[49] and not to abrogate[50] international obligations), the exercise of
relevant statutory[51] and judicial[52] powers and discretions, the application and
operation of the rules of natural justice,[53] the development of the common law[54] and judicial understanding of the value
placed by contemporary society on fundamental human rights.[55] In this regard, I would endorse, with
respect, the remarks of Maxwell P in Royal Women’s Hospital v Medical
Practitioners Board of Victoria[56] about the need to consider arguments based
on Australia’s international legal obligations in appropriate cases.
74 Therefore, even though the Charter does not affect my
consideration of Mr Tomasevic’s application for judicial review, I think the
ICCPR does. To determine the application, it will necessary for me to identify
what was required for the proper performance of the duty of the trial judge to
ensure a fair trial by giving due assistance to Mr Tomasevic as a
self-represented litigant. I think this should be done in terms that take into
account the importance of that duty in promoting and respecting the fundamental
human rights of equality before the law and access to justice which are
specified in the ICCPR.
75 I could decide this case by reference only to the
judge’s duty to ensure a fair trial. If that is so, you might ask, why should I
also refer to the human rights issues that the case raises?
76 I would answer that Australia may be an island geographically, but in international law
terms, we are not. Australia has chosen to become a party to the ICCPR, and so has
undertaken to promote and respect the human rights of equality before the law
and access to justice, which are universal and fundamental. This case concerns
the inherent duty of a judge to ensure a fair trial by giving due assistance to
a self-represented litigant. It therefore raises issues of direct practical
importance to the promotion and respect of those rights. The inherent duty to
ensure a fair trial and the human rights of equality before the law and access
to justice may be said to breathe the same air. Without impairing, indeed by
asserting, the independence of our own law, judges can, and in my view should,
act consistently with the international obligations specified in the ICCPR by
accepting that, when appropriate, the exercise of relevant judicial powers and
discretions, such as the duty to ensure a fair trial, can take into account the
human rights specified in the ICCPR. That, I think, is the state and rationale
of the current law. Of course the inherent duty to ensure a fair trial always
remains the source of the binding law, but its nature is better understood, its
function in the law is strengthened, its application is more penetrating and
its capacity to evolve is enhanced once it is appreciated that its performance
has an international dimension.
77 Now return, if you will, to that picture of the deaf
mute in court, in which I see a metaphor. Without understanding legal language,
how can self-represented litigants, who are vulnerable in ways I will now
describe, really know what they have heard or what they should say?
The disadvantages suffered by self-represented litigants
78 The principle of the fair trial, and the human rights of
equality before the law and access to justice, are not restricted to the purely
formal idea, important though it is, that all people have an equal opportunity
to appear before a court or tribunal. It was the French author Anatole France
who captured the essential injustice of treating unequal people equally. He
wrote that “the law, in its majestic equality, forbids rich and poor alike to
sleep under bridges, to beg in the streets, and to steal bread.”[57] In reality, the principle of the fair trial
in its modern conception, and the human rights I have mentioned, recognise that
people are not all equal in relevant respects, and that some suffer from
particular disadvantages that impede their equal access to justice.
79 Take Mr Tomasevic, for example. When he stood before the
judge in the present case, he was not poor, had not slept under a bridge and
had not stolen bread. He was a trained teacher with a confident manner, a
strong voice and a large grievance, and so was one kind of person among the
great diversity of people who appear in the courts self-represented. But, to
use the words of the Smith J in R v Nilson,[58] he was still in a position of “grave
disadvantage.” That was because he lacked two critical qualities possessed by
competent lawyers: professional skill and ability, and objectivity. Mr
Tomasevic’s grave disadvantage was obvious in the proceeding before me. I do
not think it would have been any different in the proceeding before the judge.
80 The Australian Institute of Judicial Administration has
prepared a report to assist courts and tribunals in planning for the management
of litigants in person.[59] It describes the disadvantages suffered by
litigants who appear without representation in civil and criminal proceedings.
81 This is how the Institute describes the disadvantage
that comes from a lack of professional skill and ability: By definition litigants in person lack the skills and
abilities usually associated with legal professionals. Most significantly, lack
of knowledge of the relevant law almost inevitably leads to ignorance of the
issues that are for curial resolution for the court or tribunal... This ranges
from lack of knowledge of courtroom formalities, to a lack of knowledge of how
the whole court process works from the initiation of a proceeding to hearing.
Litigants in person also lack familiarity with the language and specialist
vocabulary of legal proceedings.[60]
82 This is the disadvantage that comes from a lack of
objectivity:
The problem of self-representation is not just a lack of
legal skill – it is also a problem of a lack of objectivity and emotional
distance from their case. Litigants in person are not in a good position to
assess the merits of their claim ...[61]
83 I would adopt this description of the disadvantages
suffered by self-represented litigants, for it is consistent with decisions of
courts in Australia, in respect of both the lack of skill and ability[62] and the lack of objectivity,[63] and of courts overseas,[64] as well as my own experience.
84 None of this denies that some people appear
self-represented by choice - one that the law respects. The rule is that, in
the ordinary course of civil or criminal litigation, all natural persons have a
right to appear unrepresented.[65] The right to defend yourself without legal
representation in criminal proceedings is “fundamental” and should not be
interfered with.[66] People who choose to defend themselves
against criminal charges forfeit none of their legal rights, although they
obtain no special advantages,[67] and their election to appear
self-represented means the trial cannot be unfair on that ground.[68] A person who refuses or neglects to comply
with the reasonable requirements of a legal aid authority cannot be said to be
unable to obtain legal representation, and their trial without legal
representation will also not be unfair on that ground.[69] The duty of a trial judge to ensure that the
trial of a self-represented person is fair applies whether he or she has been
unable to obtain legal representation or appears self-represented by their own
choosing.[70]
85 But most people who appear self-represented do not do so
by choice and, as we have seen, they are at a grave disadvantage. This gives
rise to a potential injustice, the one identified by Anatole France, for how can it be said the law operates equally in such a
situation? The law confronts this problem through the application of the
overriding principle of the fair trial.
The overriding duty of a trial judge to ensure a fair trial
86 A trial judge has an overriding duty to ensure a fair
trial. This emerges with crystal clarity and moral force from Dietrich v R.[71]
87 Mr Dietrich was convicted on serious criminal charges
following a trial in the County Court of Victoria in which he was
self-represented. All his attempts to obtain legal aid failed and the trial
judge dismissed his application for an adjournment. The accused contended that
he had a right to be provided with counsel at public expense or, alternatively,
a right to a stay of the criminal proceeding. The High Court rejected the
former but upheld the latter contention, holding a judge could stay a criminal
proceeding which would result in an unfair trial, including one where legal
representation was essential, as it was in most cases where the alleged offence
was serious. The Court held that the “right of an accused to receive a fair
trial according to law is a fundamental element of our criminal justice
system.”[72] Deane and Gaudron JJ made clear the
requirement for a “fair trial” went further than a trial “according to law”. To
Deane J, the requirement -
transcends the content of more particularized legal rules
and principles and provides the ultimate rationale and touchstone of the rules
and practices which the common law requires to be observed in the
administration of the substantive criminal law.[73]
To Gaudron J, fairness was an “overriding qualification and
universal criterion”.[74] This is her Honour’s
development of that proposition:
The requirement of fairness is not only independent, it is
intrinsic and inherent. According to our legal theory and subject to statutory
provisions or other considerations bearing on the powers of an inferior court
or a court of limited jurisdiction, the power to prevent injustice in legal
proceedings is necessary and, for that reason, there inheres in the courts such
powers as are necessary to ensure that justice is done in every case. Thus,
every judge in every criminal trial has all powers necessary or expedient to
prevent unfairness in the trial. Of course, particular powers serving the same
end may be conferred by statute or confirmed by rules of court.[75]
88 What is required to produce a fair trial depends on the
circumstances. In some cases it may be necessary to have interpreters,
acceptable custodial facilities or a special court venue.[76] In other cases, evidence may have to be
excluded because of its unfair prejudicial effect[77] or an adjournment granted to allow pre-trial
publicity to abate. This list is far from exhaustive and the categories are not
closed. Indeed “the practical content of the requirement that a criminal trial
be fair may vary with changing social standards and circumstances.”[78] The general principle is that the courts
possess all the necessary powers to ensure a fair trial,[79] one aspect of which is the power to give
assistance to a litigant in person.
The trial judge’s duty to assist self-represented litigants
89 As part of their overriding obligation to ensure a fair
trial, trial judges have a positive duty to give proper assistance to
self-represented litigants,[80] both in criminal[81] and civil[82] trials and also in interlocutory
proceedings, such as in applications to strike out pleadings.[83] The same duty applies to masters,[84] magistrates,[85] commissions[86] and tribunals,[87] but of course the application of the duty
would have to take into account the particular demands of those jurisdictions.
The duty applies even when all the parties are litigants in person.[88] The general principles were clearly
expounded in MacPherson v R.[89]
90 As a self-represented accused, Mr MacPherson was tried
for murder. He put to the police in cross-examination that his alleged
confession had been extracted with threats. The trial judge did not inform him
of his right to have the voluntary nature of the confession determined in a
voir dire in the absence of the jury, and he did not conduct a voir dire. The
accused was convicted. The High Court upheld the appeal, quashed the conviction
and ordered a retrial. It held the trial judge should have informed the accused
of his rights and held a voir dire.
91 The High Court held that it was the duty of the judge
“to ensure that the trial is conducted fairly and in accordance with law”.[90] Where the accused is self-represented, this
necessarily involves giving some explanation to him or her. A judge who did so
would not thereby become the accused’s advocate but “would be performing his
duty as a judge by informing the accused of his rights in relation to the
conduct of the trial.”[91] Nor did this mean the judge had to advise
the accused about how his or her rights should be exercised. The judge had to
put the accused in the position of being able to make an effective choice,[92] a duty which applies even “giving full
weight to the adversary character of a criminal trial”.[93] A trial was not fair if the judge failed to
perform this duty in a fundamental respect.[94]
92 Importantly, the High Court held that the duty of the
judge to provide assistance to a self-represented accused was bounded only by
the requirements of fairness. Consequently, there was –
no limited category of matters
regarding which a judge must advise an unrepresented accused – the judge must
give an unrepresented accused such information as is necessary to enable him to
have a fair trial.[95]
93 Dietrich v R[96] was decided after MacPherson v R,[97] but did not alter the principles expounded
in that case. As Dietrich was concerned with the right (found not to exist) of
an accused to legal aid and the right (found to exist) of the court to stay a
trial of serious criminal charges against an unrepresented accused, the
judgments tended to emphasise the institutional limitations on the capacity of the
judge to assist such an accused. Thus a number of judges pointed to the
difficulties faced by any trial judge who tried to extend a “helping hand” to a
self-represented accused, for the role of the trial judge is fundamentally
different to that of defence counsel.[98]
94 Nonetheless, the duty of the trial judge to provide
appropriate advice and assistance, expounded in MacPherson, was acknowledged in
Dietrich. For example, Brennan J, who dissented in the result but not on the
law, said this: “Where an accused person is unrepresented, a particular burden
is placed on the trial judge to ensure that the trial is fair.”[99] Deane J referred to the balancing efforts of
the trial judge.[100] Dawson J said the trial judge could give
“limited” assistance to the accused, but its effect should be to address an
imbalance “as far as possible”.[101] Toohey J was to similar effect.[102] The premise of the decision in Dietrich,
which will assume later significance in this judgment, was that, in the case of
a self-represented accused facing serious criminal charges, it was not usually
possible for a judge to ensure a fair trial, even when he or she performed the
duty to assist, given the limitations on the nature of the assistance that
might be given. It was for this reason that the High Court held that such a
trial could be stayed.
95 The courts now frequently refer to their “duty” or
“obligation” in relation to self-represented litigants. This is usually defined
in terms that require the impartial function of the judge to be preserved,
while also requiring the judge to intervene where this is necessary to ensure
the trial is fair and just.[103]
96 The scope of the duty gives rise to a judge’s dilemma.
That is my next subject.
The scope of the duty to assist and the judge’s dilemma
97 I will begin with the scope of the duty, which can be
discerned from the decided cases, beginning with Abram v Bank of New Zealand,[104] a sensible decision in a civil case which
has been influential.
98 Mr and Mrs Abram sued the Bank of New Zealand in
commercial litigation in the Federal Court of Australia. Mr Abram represented
himself and his wife. The trial judge applied the law as stated by the High
Court in Neil v Nott[105] that “the court must assume the burden of
endeavouring to ascertain the rights of parties that are obfuscated by their
own advocacy.” The judge said this required him to endeavour to ascertain the
true character of Mr and Mrs Abram’s legal claims. When his Honour dismissed
these claims, they appealed to the Full Court on the ground, among other things, that he had failed in
his duty to assist them as litigants in person.
99 This oft-cited passage from the judgment of the Full Court still represents the law:
What a judge must do to assist a
litigant in person depends on the litigant, the nature of the case, and the litigant’s
intelligence and understanding of the case.[106]
Their Honours referred to the finding of the trial judge
that Mr Abram was a quick and intelligent man and decided that he needed no
more assistance than what the judge provided.[107]
100 Abram has been followed on many occasions. For example,
in Microsoft Corporation v Ezy Loans Pty Ltd[108] it was held that the nature of an order
necessary to maintain the balance between represented and self-represented
parties varies –from case to case and requires some assessment of the
difficulties confronting the individual litigant, the litigant’s intelligence
and his or her understanding of the case.[109]
The individual circumstances of each unrepresented litigant
will have to be considered, as well as the nature of the issues, if not also
the demands, of each case.[111]
101 And so I think the position here may be compared with
that in Canada, as to which, in A (JM) v Winnipeg Child & Family Services,[112] Scott CJM, speaking for the Manitoba Court
of Appeal, said simply this:
102 Two cases illustrate the application of the principles
expounded in MacPherson v R[114] in the criminal law context. They are R v
Gidley[115] and R v Zorad.[116] Both are decisions of the New South Wales
Court of Criminal Appeal.
103 In R v Gidley[117] the accused was found guilty of two counts
of murder. He tendered a diary which, on appeal, he said contained prejudicial
material. But the trial judge had fully informed him of his rights in respect
to the tender – specifically, that it would not come before the jury unless he
tendered it. The accused chose to proceed.
104 The Court of Criminal Appeal held that the trial judge
had performed his duty “to ensure that every accused has a fair trial”.[118] The accused being self-represented, the
judge had given him “such information and advice concerning his rights as is
necessary to put him in a position where he can make an effective choice
whether he should exercise those rights”.[119] His Honour could not and did not advise the
accused “either that he should exercise those rights or how he should conduct
his case.”[120]
105 In R v Zorad[121] the Court of Criminal Appeal considered the
nature of the advice and information that the judge might be required to give
to ensure that a trial was fair to a self-represented accused. It held that,
where necessary, the judge might need to give information and advice about the
form of questions to be put in cross-examination, the accused’s right to raise
before the jury, the voluntariness of a confession and the existence of the
rule in Browne v Dunn.[122]
106 The Court held that the right to appear self-represented
was fundamental and that the accused should suffer no disadvantage from
exercising this right.[123]
107 The case that brought attention to the judge’s dilemma
is Minogue v Human Rights and Equal Opportunity Commission [124] a decision of the Full Court of the Federal
Court of Australia.
108 Mr Minogue was convicted of the murder of a policewoman
by exploding a bomb outside the Russell Street Police Headquarters in Melbourne. He was sentenced to life imprisonment with a minimum term
of 30 years. He complained to the Human Rights and Equal Opportunity Commission
that the prison authorities were impeding his efforts to prepare a petition of
mercy, which he contended infringed his rights under the ICCPR.
109 The Commission decided it had no jurisdiction to
entertain Mr Minogue’s complaint, which he challenged by way of judicial review
in the Federal Court of Australia. The trial judge dismissed the application.
Mr Minogue was self-represented, but the judge granted leave to a legally
represented intervener who supported most of his case. One of his grounds of
appeal was that the judge had not adequately assisted him.
110 The Full Court[125] dismissed the appeal. On the issue of Mr
Minogue being self-represented, it held that the general principles governing
the role of a judge in civil proceedings involving a litigant in person were
stated by the New South Wales Court of Criminal Appeal Rajski v Scitec
Corporation Pty Ltd.[126]
111 Rajski is unreported, so I will set out the relevant
passages from the judgments here. Samuels JA said this:
In my view, the advice and
assistance which a litigant in person ought to receive from the court should be
limited to that which is necessary to diminish, so far as this is possible, the
disadvantage which he or she will ordinarily suffer when faced by a lawyer, and
to prevent destruction from the traps which our adversary procedure offers to
the unwary and untutored. But the court should be astute to see that it does
not extend its auxiliary role so as to confer upon a litigant in person a
positive advantage over the represented opponent ... At all events, the absence
of legal representation on one side ought not to induce a court to deprive the
other side of one jot of its lawful entitlement ... An unrepresented party is
as much subject to the rules as any other litigant. The court must be patient
in explaining them and may be lenient in the standard of compliance which it
exacts. But it must see that the rules are obeyed, subject to any proper
exceptions. To do otherwise, or to regard a litigant in person as enjoying a
privileged status, would be quite unfair to the represented opponent.[127]
112 Mahoney JA made these observations on the same subject:
Where a party appears in person,
he will ordinarily be at a disadvantage. That does not mean that the court will
give to the other party less than he is entitled to. Nor will it confer upon
the party in person advantages which, if he were represented, he would not
have. But the court will, I think, be careful to examine what is put to it by a
party in person to ensure that he has not, because of the lack of legal skill,
failed to claim rights or to put forward arguments which otherwise he might
have done.[128]
113 Returning to Minogue, the Full Court dealt with the tension between the duty of the trial judge
to ensure a fair trial and to maintain the appearance of impartiality, which
they called the judge’s dilemma:
A trial judge often faces
something of a dilemma. While he or she may be bound to provide some advice and
assistance to an unrepresented litigant, the authorities make it clear that the
Judge should not intervene to such an extent that he or she cannot maintain a
position of neutrality in the litigation: Burwood Municipal Council v Harvey
(1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of
legitimate intervention are flexible and will be influenced by the need for
intervention to ensure a fair and just trial: Panagopoulos v Southern
Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.[129]
114 In the case before the trial judge, the matter turned
entirely on issues of law. Mr Minogue’s submissions to the Full Court seemed to be presented on the basis that it was the trial
judge’s responsibility to conduct his case for him. The Full Court held that it was not the trial judge’s role to do so, and
the trial was not unfair by reason of a self-represented litigant being
required to make submissions on issues of law.
115 The decision in Minogue has been frequently followed,
including in the Full Court of the Federal Court of Australia[130] and the Supreme Courts of Western
Australia,[131] New South Wales[132] and South Australia.[133] I would endorse it here.
116 As we saw, in Minogue the Full Court referred to Panagopoulos v Southern Healthcare Network,[134] which Smith J decided in this Court in
1997. I think this is an important decision that deserves close attention. It
demonstrates the difficulties involved in reconciling the judge’s duty to
provide a fair trial and at the same time maintain the reality and appearance
of impartiality. It also shows how this dilemma might be resolved.
117 Miss Panagopoulos sought damages against the Southern
Healthcare Network for negligence allegedly suffered during her birth in 1971.
Being severely intellectually disabled, she was represented by her father (who
sued as her next friend) and one of his friends, neither of whom had any
forensic or medical training. The hospital was represented by a fully resourced
legal team headed by a Queen’s Counsel.
118 In conducting the trial, Smith J explained all of the
necessary procedural points to Mr Panagopoulos. He also went further and
actively questioned the medical witnesses. The hospital contended that his
Honour overstepped the mark and submitted he should disqualify himself on
grounds of apprehended bias.
119 Smith J acknowledged it was necessary to balance the
assistance given to a litigant in person with the need to maintain the fact and
appearance of judicial neutrality, as emphasised by Kirby P in Burwood
Municipal Council v Harvey.[135] His Honour found that, in the circumstances
of the case before him, the imbalance in representation between the parties
created a situation of unfairness that would seriously compromise the reality
and appearance of justice in the trial.[136] He held that, to ensure a fair and just
trial was conducted, it was necessary for him to make appropriate
interventions, including asking questions of witnesses.[137] On reconciling the duty to provide a fair
trial with the obligation to maintain the appearance of impartiality, his
Honour said this:
In my view, however, the need to preserve the appearance of
neutrality should be seen as marking the boundary for judicial intervention. It
is a boundary that is flexible and its location will be affected by the
circumstances of the case. It will be affected by the extent to which a judge
needs, and may properly be seen to need, to intervene to ensure a fair and just
trial.[138]
120 His Honour noted that the law relating to apprehended
bias was intended to serve the fundamental principle that justice must be done
and be seen to be done.[139] He held the question to be determined was
whether the nature and extent of the questioning might give rise to a
reasonable apprehension of bias in the mind of a properly informed fair minded
person.[140] His Honour attributed to the fair minded
person an awareness of the features of the trial before him that made it
necessary for him to intervene in the manner that he had.[141] He held a fair minded person, considering
the manner objectively, would appreciate that, in these circumstances, it was
necessary for the judge to so intervene to ensure a fair and just trial.[142]
121 Another case that illustrates how heavy the burden on
the trial judge can be, and how the burden might be carried, is Mentyn v Law
Society of Tasmania[143] which, like Panagopoulos, was a
disqualification case.
122 The proceeding before Slicer J had a tortuous history.
The disqualification application arose as a preliminary to the hearing of an
application by the Law Society of Tasmania for further and better particulars
of Mr and Mrs Mentyn’s claim for damages. Slicer J had given guidance to the
self-represented parties on a number of occasions. The Society alleged his
Honour had overstepped the mark.
123 The judgment of Slicer J contains an illuminating
discussion of difficult issues that may arise from the application of modern
methods of case-management, which are judge-driven, when one of the parties is
self-represented.[144] It also contains a refreshingly honest
discussion of the difficulties involved in affording equal justice to litigants
in person in a legal system where litigation is operated along adversarial
lines.
124 The application for disqualification was dismissed.
Slicer J, like Smith J in Panagopoulos, held that a fair minded observer would
not reasonably apprehend that his Honour was biased by reason of extending such
assistance to the self-represented parties as was necessary for ensuring a fair
and just trial.[145]
125 A Canadian case provides a further useful illustration
of how the problem of alleged bias should be approached.
126 In Barrett v Layton[146] the defendant in
a civil action was self-represented at trial. At the outset, the judge
summarised the procedure that would be followed. In running, the judge also
drew the defendant’s attention to certain issues, covered in her
lawyer-prepared statement of defence, which she missed when she cross-examined
the defendant’s witnesses and gave her own evidence. One the issues was laches.[147] When the judge started to explain the
concept of laches to the defendant, counsel for the plaintiff moved for a
mistrial on grounds of judicial bias.
127 The judge, J Macdonald J, dismissed the motion, holding
that giving the assistance did not mean the judge had assumed the role of
counsel, had not undermined the role of counsel for the represented party and
had not created the appearance of judicial bias.[148] On this last point, the judge said this:
I conclude that reasonable and right-minded persons,
properly informed respecting the requirement of a fair trial and properly
informed that trial fairness includes trial on the merits, and also cognizant
of both the duty of the trial judge to ensure trial fairness and the right of
the trial judge to elicit relevant evidence, if justice requires that, would
not think that the steps taken to ensure a fair hearing are decisional steps.[149]
128 Thus it is the function of a judge to find facts on the
basis of the evidence so that the legal claim (or prosecution) can be
determined on its merits, that is, its merits as revealed by a fair trial,
which the judge cannot be criticised for properly bringing about.[150]
129 I said I would return to Dietrich v R[151] and it is here that I should do so. There
is no doubt that, in either a criminal or civil case, the judge cannot become
the advocate of a self-represented litigant, and must maintain the reality and
appearance of judicial neutrality. But we have seen that the judge’s overriding
duty is to ensure a fair trial, that being the only trial that a judge can
judicially conduct. If the judge considered that a self-represented litigant
fairly needed assistance of a certain kind which, in the view of the judge,
could not be given without forfeiting the reality or appearance of
impartiality, the judge’s dilemma would be transformed into a crisis. This
would not arise unless the judge was definitely of that view, which would not
be reached lightly, remembering the rule against bias is applied sensibly in
such a case, as in Panagopoulos,[152] Mentyn[153] and Barrett,[154] as well as in Re F: Litigants in Person
Guidelines,[155] a decision of the Full Court of the Family
Court of Australia. But if that point was to be unavoidably reached, I am
unable to see how the case could continue, for the logic of the decision in Dietrich
would seem to demand that result. But the result would be surely be intolerable
in many cases, for it would represent a catastrophic system failure, which we
must strain to avoid. This only underscores the importance of finding practical
and principled solutions to the problems involved in judges giving necessary
assistance to self-represented litigants.
130 The duty to assist may extend to issues of law as well
as procedure, as the Victorian Court of Appeal has made clear. In R v White[156] the accused was being tried for conspiracy
to commit armed robbery. He sought to rely on the defence of mental impairment.
He was self-represented and gave the jury an account of his extensive criminal
history, criminal activities and uncharged criminal acts. The judge did not
warn the accused about the prejudicial consequences of giving this evidence,
nor did his Honour warn the jury that the evidence could only be used on the
issue of mental impairment. The appeal against the jury’s verdict of guilty was
upheld.
131 Following Dietrich v R[157] and MacPherson v R,[158] Chernov JA held “it is the duty of the
judge to ensure that the accused is not subjected to a trial that is unfair.”[159] The judge must refrain from becoming an
advocate for a self-represented accused.[160] But the judge -
must ensure that the accused is fully aware of the legal
position in relation to the substantive and procedural aspects of the case
without effectively advising him or her of what course should be followed.[161]
Chernov JA held the extent of the trial judge’s duty to
inform the accused depended on the circumstances, as to which his Honour noted
a trend toward greater judicial intervention.[162] Charles and Eames JJA agreed with Chernov
JA.[163]
132 Along with Debelle J in Pezos v Police,[164] I would notice that the formulation of
Chernov JA, which represents the current law in this State, extends to giving
assistance about “the legal position as to the substantive and procedural issues
in the case”.[165] With respect, I think this formulation is
entirely consistent with the High Court authorities on which his Honour relied,
as well as decisions of the Full Court of the Family Court of Australia.[166] It also reflects the position in Canada, where a trial judge is obliged to direct the attention of
a self-represented litigant to the “salient points of law and procedure.”[167] Bongiorno J followed the same approach in
Zegarac v Tomasevic.[168]
The guidelines of the Family Court of Australia
133 Courts and judicial organisations have, with respect,
rightly acknowledged the need to do more to ensure a fair trial, and equality
before the law and access to justice, for self-represented litigants. A variety
of approaches have been adopted to address that need.[169] The Full Court of the Family Court of Australia
has enunciated guidelines on how this can be achieved through the proper
performance of the judge’s duty to assist self-represented litigants, which is
of direct relevance to the application before me.
134 The case in which the guidelines were first stated was
In the Marriage of N and ML Johnson.[170] In this case the wife was represented and
the husband appeared in person. The trial judge allowed a witness to be
interposed prior to the conclusion of the wife’s evidence. His Honour did not
explain the consequences of allowing interposition to the husband and refused
his later application to recall the witness. The witness’s evidence was
important to the outcome of the case. The Full Court held the judge had failed to afford the husband procedural
fairness and enunciated detailed guidelines for application by trial judges in
future cases.
135 The guidelines were revised by the Full Court in Re F: Litigants in Person Guidelines.[171] The facts are not material. The revision
dealt with a number of topics, including the giving of advice or information on
matters of law. After citing the passage in the judgment in Minogue v Human
Rights and Equal Opportunity Commission,[172] the Full Court acknowledged the need for the Court to maintain impartiality,
but emphasised the significance of providing a fair trial.[173]
136 These are the revised guidelines enunciated in Re F:
Litigants in Person Guidelines:
(1) A judge should ensure as far
as is possible that procedural fairness is afforded to all parties whether
represented or appearing in person in order to ensure a fair trial.
(2) A judge should inform the litigant in person of the
manner in which the trial is to proceed, the order of calling witnesses and the
right which he or she has to cross examine the witnesses.
(3) A judge should explain to the litigant in person any
procedures relevant to the litigation.
(4) A judge should generally assist the litigant in person
by taking basic information from witnesses called, such as name, address and
occupation.
(5) If a change in the normal procedure is requested by the
other parties such as the calling of witnesses out of turn the judge may, if
he/she considers that there is any serious possibility of such a change causing
any injustice to a litigant in person, explain to the unrepresented party the
effect and perhaps the undesirability of the interposition of witnesses and his
or her right to object to that course.
(6) A judge may provide general advice to a litigant in
person that he or she has the right to object to inadmissible evidence, and to
inquire whether he or she so objects. A judge is not obliged to provide advice
on each occasion that particular questions or documents arise.
(7) If a question is asked, or evidence is sought to be
tendered in respect of which the litigant in person has a possible claim of
privilege, to inform the litigant of his or her rights.
(8) A judge should attempt to clarify the substance of the
submissions of the litigant in person, especially in cases where, because of
garrulous or misconceived advocacy, the substantive issues are either ignored,
given little attention or obfuscated: Neil v Nott [1994]
HCA 23; (1994) 121 ALR 148 at 150.
(9) Where the interests of justice and the circumstances of the case require it, a judge may:
(9) Where the interests of justice and the circumstances of the case require it, a judge may:
·
draw attention to the
law applied by the court in determining issues before it;
·
question witnesses;
·
identify applications
or submissions which ought to be
put to the court;
·
suggest procedural
steps that may be taken by a party;
·
clarify the
particulars of the orders sought by a litigant
in person or the bases of such
orders.
The above list is not intended to be exhaustive and there
may well be other interventions that a judge may properly make without giving
rise to an apprehension of bias.[174]
137 These guidelines have been cited with approval by courts in a number of Australian jurisdictions, including the Federal Court of Australia[175] and the Supreme Courts of Victoria,[176] Tasmania[177] and South Australia.[178] I too think they give useful guidance on how the duty of the trial judge might be performed. But of course, they are guidelines, not grooves in which the performance of the duty must run.
The law as it currently stands
138 On the basis of this analysis, I think I can summarise the law as it currently stands.
139 Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.
140 Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
141 The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.
142 The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.
143 It remains to apply these principles to the present case.
THE JUDGE DID NOT PROPERLY PERFORM HIS DUTY TO ASSIST MR
TOMASEVIC AS A SELF-REPRESENTED LITIGANT
144 In the circumstances more fully set out earlier in these
reasons, Mr Tomasevic presented to the judge as a self-represented litigant.
Being a teacher, Mr Tomasevic had some relevant skills. But his position was
not to be compared to that of a lawyer, for he had little or no knowledge of
the legal issues raised by his application or the procedures that would be
followed, and he was emotionally involved in his own case. As he put it in the
present application, it was “my life”. The informant was represented by
experienced counsel instructed by a solicitor.
145 Mr Tomasevic’s application was for leave to proceed with an appeal against findings of guilt and sentence of a magistrate that was three years out of time. The judge had to apply cl 1(3) of Schedule 6 of the Magistrates’ Court Act 1989, which required Mr Tomasevic to establish that, in the judge’s opinion, the delay in bringing the appeal was due to exceptional circumstances and that, to the judge’s satisfaction, the informant’s case would not be materially prejudiced. In support of his application, Mr Tomasevic filed an affidavit with a folder of material, much of which was not relevant.
146 In these circumstances, I think the judge had a duty to -
• recognise Mr Tomasevic as someone who, as a
self-represented litigant, was gravely disadvantaged
• explain to him the procedures that would be followed in
the hearing and determination of the application
• explain to him the legal requirements that he had to
satisfy, namely that the delay was due to exceptional circumstances and the
informant’s case was not materially prejudiced
• encourage him to make submissions on relevant issues, but
explain to him what was relevant
• discourage him from making submissions on irrelevant
issues, but explain to him what was irrelevant
• ask appropriate questions to confirm he was fully putting
forward the matters he wished to rely on, and ask for elaboration of any areas
apparently not fully covered
• before deciding the application, ask him if there was
anything else that he wanted to add
147 The judge did not assist Mr Tomasevic in these ways.
His Honour conducted a short hearing. He did not tell Mr Tomasevic about the
procedure that would be followed. He did not assist him to present his case. I
think Mr Tomasevic was implicitly aware that the reason for the delay of three
years was an important issue. But he did not know, and he was not told, that
the real issues were exceptional circumstances and material prejudice to the
informant’s case.
148 Not all of these measures of assistance were equally important. But failing to assist in all of these ways was collectively significant and, with respect, amounted to a failure on the part of the judge to ensure a fair trial. The informant’s legal representatives did not contribute to this failure, for the judge strongly dictated the course that the hearing followed. The failure constituted a breach of the rules of natural justice,[179] which is a form of jurisdictional error. The breach was not a mere technical breach which made no difference to the outcome of the case, but represented a substantial departure from what was required.
149 This ground of judicial review will also be upheld.
CONCLUSION
150 A magistrate found Milan Tomasevic guilty of criminal
charges and sentenced him to a conditional 12 months good behaviour bond. Mr
Tomasevic’s counsel failed to attend the hearing, so he was represented by a
solicitor who was not as familiar with his case. In Mr Tomasevic’s view,
important evidence was not properly used by that solicitor, and the magistrate
would not admit it.
151 Mr Tomasevic appealed the magistrate’s decision within
the 30 day time period specified by the Magistrates’
Court Act. He withdrew that appeal, he says because the same solicitor
advised him his career as a teacher would not be affected, which proved to be
incorrect.
152 Three years later, Mr Tomasevic applied to the County
Court of Victoria for leave to proceed with an appeal out of time. The
application was heard by a judge of that Court. Under the Magistrates’
Court Act, the judge could only grant leave if Mr Tomasevic established
that, in the judge’s opinion, the delay in appealing was due to exceptional
circumstances and that, to the judge’s satisfaction, the delay would not
materially prejudice the informant’s case.
153 Mr Tomasevic is qualified as a teacher, not as a
lawyer. He represented himself in the hearing before the judge. The informant
was represented by an experienced barrister, instructed by a solicitor. Mr
Tomasevic was gravely disadvantaged, for he lacked the necessary legal skill
and ability, and objectivity, to present his case.
154 The judge conducted a short hearing in which Mr
Tomasevic did his best. The informant’s counsel was called on to say very
little. The judge did not explain to Mr Tomasevic the procedures that would be
followed or the legal requirements that he had to satisfy. Nor did the judge
assist Mr Tomasevic to present his case. Without mentioning exceptional
circumstances or prejudice to the informant’s case, his Honour rejected the
application on the basis that the delay had been too great.
155 A judge has a fundamental duty to ensure a fair trial
by giving due assistance to a self-represented litigant, whilst at the same
time maintaining the reality and appearance of judicial neutrality. The duty is
inherent in the rule of law and the judicial process. The human rights of
equality before the law and access to justice specified in the International
Covenant on Civil and Political Rights are relevant to its proper performance.
The assistance to be given depends on the particular litigant and the nature of
the case, but can include information about the relevant legal and procedural
issues. Fairness and balance are the touchstones.
156 With respect, I think the judge applied the wrong test
in coming to his decision. His Honour applied a long delay test, not a test
based on exceptional circumstances and material prejudice to the informant’s
case. This amounted to a failure on the part of the judge properly to exercise
his jurisdiction under the Magistrates’
Court Act.
157 With respect, I also think the judge, in respects that
were collectively significant, failed properly to perform his duty to ensure a
fair hearing of Mr Tomasevic’s application, given he was self-represented. That
failure constituted a breach of the rules of natural justice, which also
represented a failure on the part of the judge properly to exercise his jurisdiction.
158 For these reasons, Mr Tomasevic’s application for
judicial review in respect of the order of the judge dated 13 July 2006 refusing to grant his application to have the appeal heard
out of time will be granted. That order will be quashed and Mr Tomasevic’s
application in that respect will be remitted to a judge of the County Court for
reconsideration according to law.
[3] In R v Demiri [2006] VSCA 64, [35], Redlich AJA (Maxwell P and Buchanan
JA concurring) followed MWJ v R [2005]
HCA 74; (2005) 80 ALJR 329, 340 per Gummow, Kirby and Callinan JJ to
state “that, having regard to the essentially accusatory character of a
criminal trial, the rule can only be applied with serous qualifications.”
[4] Bulstrode v
Trimble [1970] VR 840, 847 per Newton J; R v Allen [1989] VR 736,
737 per McGarvie J; R v McDowell [1997] 1 VR 473, 479 per Smith AJA
(Phillips CJ and Southwell AJA concurring); R v Demiri [2006] VSCA 64, [36], Redlich AJA (Maxwell P and Buchanan
JA concurring); R v MG [2006] VSCA 264, [52]-[55] per Coldrey AJA (Nettle JA
concurring; cf Ashley JA [3]-[10]).
[5] [2006] VSCA 64, [36]. For the proposition stated in the
last sentence of the quoted passage, the Court of Appeal cited Reid v Kerr
(1974) 9 SASR 367, 373-374 per Wells J.
[8] [2005]
HCA 74; (2005) 80 ALJR 329, 333; cf 340 per Gummow, Kirby and Callinan JJ;
see also R v McDowell [1997] 1 VR 473, 479-480; R v MG [2006] VSCA 264, [55].
[9] Browne v Dunn
(1893) 6 R 67, 70-71; Bulstrode v Trimble [1970] VR 840, 846; R v
Allen [1989] VR 736, 737; R v Birks (1990) 19 NSWLR 677, 688; R v
Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547, 560.
[10] (1990) 19 NSWLR
677, 688. The internally quoted words are those of Lord Herschell LC in Browne
v Dunn (1893) 6 R 67, 71.
[11] R v Schneidas
(No 2) (1981) 4 A Crim R 101, 111 per Street CJ, O’Brien CJ of the Criminal
Division and Lee J.
[12] Payless
Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551, 557 per Clarke JA,
Priestley and Meagher JJA agreeing.
[15] The authorities
were reviewed by Gleeson CJ in R v Birks (1990) 19 NSWLR 677, 686-692;
see also R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547, 561-562.
Whether the holding in R v Schneidas (No 2) can survive the
direction of the analysis expressed in MWJ v R [2005]
HCA 74; (2005) 80 ALJR 329, 333, 340 remains to be seen.
[24] See Dietrich v R
[1992] HCA 57; (1992) 177 CLR 292, 299 per Mason CJ
and McHugh J, see also 325 per Brennan J, 326 per Deane J, 353, 361 per Toohey
J, 362 per Gaudron J. The authorities are extensively examined below.
[25] See generally R
v Birks (1990) 19 NSWLR 677, 689-692; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 236-237.
[26] R v Allen
[1989] VR 736, 738; but there is a need for caution here: R v Birks
(1990) 19 NSWLR 677, 691-692; MWJ v R [2005]
HCA 74; (2005) 80 ALJR 329, 333, 339-340; R v Demiri [2006] VSCA 64, [35]; R v MAP [2006] QCA 220, [55].
[27] Bulstrode v
Trimble [1970] VR 840, 847; R v Killick (1980) 24 SASR 137, 153; Reid
v Kerr (1974) 9 SASR 367, 375; Crosthwaite v City of Elizabeth
(1989) 51 SASR 105, 111; R v Popescu (1989) 39 A Crim R 137, 140-141; R
v Aldridge (1990) 20 NSWLR 737, 743; MWJ v R [2005]
HCA 74; (2005) 80 ALJR 329, 339-340; cf R v MG [2006] VSCA 264, [3]-[10].
[32] R v Australian
Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953]
HCA 22; (1953) 88 CLR 100, 117.
[34] Gradidge v Grace
Bros Pty Ltd (1988) 93 FLR 414, 422 per Kirby P, 426 per Samuels JA and 427
per Clarke JA, agreeing with Kirby P.
[35] Article 14(1)
provides that “all persons shall be equal before the courts and tribunals.”
Article 26 provides that “all persons are equal before the law and are entitled
without any discrimination to the equal protection of the law.”
[36] Article 14(1)
further provides that “in the determination of any criminal charge against him,
or of his rights and obligations in a suit at law, everyone shall be entitled
to a fair and public hearing by a competent, independent and impartial tribunal
established by law.”
[37] Article 14(3)(f)
specifies, in criminal case, the right: “To have the free assistance of an
interpreter if he cannot understand or speak the language used in court”.
[38] R v Macfarlane;
Ex parte O’Flanagan and O’Kelly [1923]
HCA 39; (1923) 32 CLR 518, 541-542 per Isaacs J (speaking of “the elementary
right of every accused person to a fair and impartial trial”); cited with
approval Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 326 per Deane J.
[39] Dietrich v
R [1992] HCA 57; (1992) 177 CLR 292, 326, 362; R v
Kerbatieh [2005] VSCA 194; (2005) 155 A Crim R 367, 374.
[47] Minister for
Immigration and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 287.
[48] Dietrich v
R (1992) 177 CLR 292, 305; Industrial Relations Act Case [1995]
HCA 45; (1995-1996) 187 CLR 416, 480-481; Minister for Immigration
and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 287; Sinanovic v R [1998]
HCA 40; (1998) 154 ALR 702, 707; Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, 372; Minogue v
Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 447.
[49] Dietrich v
R [1992] HCA 57; (1992) 177 CLR 292, 306; Koowarta v
Bjelke-Petersen [1982]
HCA 27; (1982) 153 CLR 168, 265; Minister for Immigration and Ethnic
Affairs v Teoh [1995] HCA 20; (1994-1995) 183 CLR 273, 287; and see
generally DC Pearce and RS Geddes, Statutory Interpretation in Australia
(6th ed, 2006) 38-42.
[50] Jumbunna Coal
Mine NL v Victorian Coal Miners Association [1908]
HCA 87; (1908) 6 CLR 309, 363; Chu Kheng Lim v Minister for
Immigration, Local Government and Ethnic Affairs [1992]
HCA 64; (1992) 176 CLR 1, 38; Minister for Immigrations and Ethnic
Affairs v Teoh [1995] HCA 20; (1994-1995) 183 CLR 273, 287; and see
generally DC Pearce and RS Geddes, Statutory Interpretation in Australia
(6th ed, 2006) 176-177.
[51] Minister for
Immigration and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 285, 302, 304-305.
[52] For example,
building on the list supplied by Maxwell P in Royal Women’s Hospital v
Medical Practitioners Board of Victoria (2006) 15 VR 22, 38:
• in sentencing: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23, 37, 43; R
v Hollinshed (1993) 112 FLR 109, 115; see also Walsh v Department of
Social Security [1996] SASC 5795; (1996-1997) 67 SASR 143, 147; Bates
v Police [1997] SASC 6430; (1997) 70 SASR 66, 70-71 (but see
contra Smith v R (1998) 98 A Crim R 442, 448)
• in bail: Schoenmakers v Director of Public
Prosecutions (1991) 30 FCR 70, 75 (but see United Mexican States v Cabal
[2001] HCA 61; (2001) 209 CLR 165 which overruled
this decision on statutory grounds); Re Rigoli [2005] VSCA 325, [5]
• in granting or refusing injunctions: Wickham v
Canberra District Rugby League Football Club Ltd (1998) ATPR ¶41-664,
41,390, 41,401-2; R v Khazaal (2006) 167 A Crim R 565, 572 (right to
select own counsel specified in art 14(3)(d) of the ICCPR taken into account as
one reason not to issue injunction restraining a particular counsel from
continuing to act for an accused)
• in excluding confessional evidence: McKellar v Smith [1982]
2 NSWLR 950, 962F
• in adopting procedures or exercising powers to ensure a
trial or hearing is fair and impartial: Gradidge v Grace Bros Pty Ltd
(1988) 93 FLR 414, 422 per Kirby P, 426 per Samuels JA and 427 per Clarke JA,
agreeing with Kirby P (as discussed above, arts 14.1, 14.3(a) and 14,3(f) of
the ICCPR cited in support of the conclusion that the trial judge had erred in
the exercise of his judicial discretion to control the use of interpreters by
directing that counsels’ argument not be interpreted to a deaf mute); Sinanovic
v R [1998] HCA 40; (1998) 154 ALR 702, 707; Awan v
Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594; (2002) 120 FCR 1, 12 (early trial
ordered because of strain being felt by the applicant, it being right to
accommodate that strain to ensure he was not denied “equal access to justice”);
Smits v Roach (2006) 227 CLR 423, 459-460 per Kirby J (the right to a
hearing before an impartial tribunal specified in art 14.1 of the ICCPR held to
inform the law that a judge had a duty to disqualify where circumstances
created a reasonable apprehension of bias); see also Batistatos v Roads and
Traffic Authority (NSW) [2006]
HCA 27; (2006) 80 ALJR 1100, 1130, 1132 per Kirby J(taking the right to
access to justice into account as a reason for not granting a stay of
proceeding for abuse of process, but dissenting on the result).
[53] Minister for
Immigration and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 291, 302, 304-305; Minogue v Human
Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 448; cf Re
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam
[2003] HCA 6; (2003) 214 CLR 1 and Royal Women’s
Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 39-40.
[54] Dietrich v
R [1992] HCA 57; (1992) 177 CLR 292, 321, 360; Mabo
v Queensland [No 2] [1992]
HCA 23; (1992) 175 CLR 1, 41-43 (per Brennan J with whom Mason CJ and
McHugh J agreed); Jago v District Court of New South Wales [1989]
HCA 46; (1988) 12 NSWLR 558, 569; Minister for Immigration and
Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 288; Derbyshire County Council v
Times Newspapers Ltd [1992]
UKHL 6; [1992] QB 770, 812-813; Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, 372; Nulyarimma
v Thompson [1999] FCA 1192; (1999) 165 ALR 621, 676; Royal
Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22,
39; Smits v Roach (2006) 227 CLR 423, 459-460.
[55] Dietrich v
R [1992] HCA 57; (1992) 177 CLR 292, 337; Minister
for Immigration and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 305; Royal Women’s Hospital v
Medical Practitioners Board of Victoria (2006) 15 VR 22, 39.
[59] Australian
Institute of Judicial Administration Incorporated, Litigants in Person
Management Plans: Issues for Courts and Tribunals (2001).
[62] Nagy v Ryan [2003]
SASC 37, [40]-[41]; Commissioner of Taxation v Metaskills Pty Ltd [2003] FCA 766; (2003) 130 FCR 248, 273; R v White
[2003] VSCA 174; (2003) 7 VR 442, 454-459; Tobin v
Dodd [2004] WASCA 288, [13]; Panagiotopoulos v Rajendram [2005] NSWCA 58, [33]; Stock v Anning [2006] WASC 275, [54]; R v Rostom [2007] SASC 210, [59] (accused could not read English); In
the Marriage of Sajdak (1992) 16 Fam LR 280, 283-284 (no legal
representation or reliable interpreter, so “almost laughable to speak of
notions such as equality of access to the courts”).
[63] Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292; Awan v Minister for Immigration and
Multicultural and Indigenous Affairs [2002] FCA 594; (2002) 120 FCR 1, [46]; Nagy v
Ryan [2003] SASC 37, [40].
[64] See eg Canada: R v Phillips 2003 ABCA 4, [16]-[19] (Court of Appeal of Alberta); Wagg v Canada [2004]
1 FC 206, [26] (Federal Court of Appeal of Canada); Barrett v Layton (2004) 69 OR (3d) 384, 390-391 (Ontario Superior Court of
Justice).
[65] Collins (alias
Hass) v R [1975] HCA 60; (1975) 133 CLR 120, 122; Burwood
Municipal Council v Harvey (1995) 86 LGERA 389.
[67] MacPherson v R [1981]
HCA 46; (1981) 147 CLR 512, 546; R v Zorad (1990) 19 NSWLR 91,
95; In Re an Inquiry into Mirror Group Newspapers PLC [2000] Ch 194, 212
(a civil case).
[68] Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 336; see also Craig v South Australia [1995]
HCA 58; (1994-1995) 184 CLR 163,
185-186.
[72] Ibid 299 per Mason
CJ and McHugh J, see also 325 per Brennan J, 326 per Deane J, 353, 361 per
Toohey J, 362 per Gaudron J.
[78] Ibid 328 per Deane
J; see also Jago v District Court of New South Wales [1989]
HCA 46; (1989) 168 CLR 23, 57.
[79] Barton v R [1980]
HCA 48; (1980) 147 CLR 75, 96; cited in Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 327.
[80] The County Court of
Victoria has produced an extensive report on assisting litigants in
person: Self-represented Parties: A Trial Management Guide for the Judiciary
(County Court of Victoria, 2004). I have found the report invaluable and
commend it to everybody interested in this subject.
[81] R v Nilson
[1971] VR 853, 864; Cooling v Steel [1971] 2 SASR 249, 251; MacPherson
v R [1981] HCA 46; (1981) 147 CLR 512, 524, 534, 546-547;
R v Gidley [1984] 3 NSWLR 168, 181; R v Zorad (1990) 19 NSWLR 91,
100; Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 327; R v White [2003] VSCA 174; (2003) 7 VR 442, 453-458; Pezos v
Police [2005] SASC 500; (2005) 94 SASR 154, 159-160; R v
Kerbatieh [2005] VSCA 194; (2005) 155 A Crim R 367, 379-380; R
v Rostom [2007] SASC 210, [35]-[43].
[82] Abram v Bank of
New Zealand (1996) ATPR ¶41-507, 42,341, 42,347; Rajski v Scitec
Corporation Pty Ltd (New South Wales Court of Appeal, 16 June 1986,
unreported (the relevant passages from the judgment are set out below and in Re
Morton; Ex parte Mitchell Products Pty Ltd [1996] 828 FCA 1; (1996) 21 ACSR 497, 513-514); Andrew
Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2006] SASC 381, [54]; Uszok v Henley Properties (NSW)
Pty Ltd [2007] NSWCA 31, [148]-[157] per Beazley JA, Basten JA
concurring and Bryson JA dissenting; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19, 23; Nagy v Ryan
[2003] SASC 37 [39]-[46]; Panagopoulos v Southern
Healthcare Network (Supreme Court of Victoria, Smith J, 15 September 1997,
unreported, BC 9704538, 2); Santamaria v Secretary to Department of Human
Services [1998] VSC 107, [28]; Zegarac v Tomasevic [2003] VSC 150, [3]; Minogue v Human Rights and Equal
Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 445-447; Tobin v
Dodd [2004] WASCA 288, [13]-[16]; Murphy v Stevens [2003] SASC 238, [204]-[209] (Full Court).
[83] Panagiotopoulos
v Rajendram [2005] NSWCA 58, [33]; Tobin v Dodd [2004] WASCA 288, [13]-[14]; Re Morton; Ex
parte Mitchell Products Pty Ltd [1996] 828 FCA 1; (1996) 21 ACSR 497, 513-514;
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536; Panagiotopoulos
v Rajendram [2005] NSWCA 58, [35]-[36]; Awan v Minister for
Immigration and Multicultural and Indigenous Affairs [2002] FCA 594; (2002) 120 FCR 1, 17; Tobin v Dodd
[2004] WASCA 288, [15]-[16].
[84] See eg Andrew
Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2006] SASC 381, [50]-[55].
[85] See eg Cooling v
Steel [1971] 2 SASR 249, 250-251; Black v Smith (1984) 75 FLR 110,
112-113; Nagy v Ryan [2003]
SASC 37, [39]-[46]; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154, [8]-[20]; KC
Nominees Pty Ltd v Arrowsmith (2006) 232 ALR 789, 798, 806; Stock v
Anning [2006] WASC 275, [54]-[58].
[86] See eg Davidson
v Aboriginal and Islander Child Care Agency (1998) 105 IR 1, 8-10 (Full
Bench of the Australian Industrial Relations Commission).
[91] Ibid 524; see also Andrew
Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2006] SASC 381, [54].
[98] Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 302 per Mason CJ and McHugh J, 334-335 per
Deane J, 345 per Dawson J, 354 per Toohey J, 369 per Gaudron J.
[103] See eg Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19, 23; NAGA v
Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003]
SASC 37, [52]-[53].
[127] Ibid 14; taken from the judgment in Minogue v Human
Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 446.
[130] Sahtout v Minister for Immigration and Multicultural
Affairs [2002] FCAFC 16, [42]; Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 and Platcher v Joseph [2004] FCAFC 68, [104]-[106].
[139] BC 9704538, 9; citing Livesey v New South Wales Bar
Association [1983] HCA 17; (1983) 151 CLR 288, 293; Vakauta v
Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v R
(1994) 101 CLR 41, 47, 67-8; R v Watson [1976]
HCA 39; (1976) 136 CLR 248.
[147] Laches is slackness or negligence in not doing something
that you should do: Daniel Greenberg and Alexandra Millbrook, Stroud’s
Judicial Dictionary of Words and Phrases (6th ed, 2000) Vol 2,
1398.
[150] On the relationship between the laws of evidence, the
function of the trial process to find facts on which can be made a decision on
the merits, the need for the parties to be given and feel they have had a fair
trial and the maintenance of public confidence in the trial system, see
Australian Law Reform Commission, Interim Report No 26: Evidence
(Australian Government Publishing Service, 1985) Volume 1, 28-32.
[152] Supreme Court of Victoria, Smith J, unreported, 15 September 1997, Butterworth’s Cases 9704538, 13-15.
[169] For example, as we saw, the County Court of Victoria has
published a valuable report: Self-represented Parties: A Trial Management
Guide for the Judiciary (County Court of Victoria, 2004). The Australian Institute
of Judicial Administration has published a proposal for the preparation of court
management plans: Litigants in Person Management Plans: Issues for Courts
and Tribunals (Australian Institute of Judicial Administration Incorporated,
2001). The Federal Court of Australia has established a pro bono
representation scheme: see Order 80 Rule 4 of the Federal Court
Rules. The Supreme Court of Victoria has established a pilot Self-represented
Litigants Co-ordinator Program. Inspired by the Equal Treatment Bench Book
published by the Judicial Studies Board of the United Kingdom (London, 2004),
such books, which deal extensively with the subject or self-represented
litigants, have been published by the Judicial Commission of New South Wales
(Sydney, 2006) and the Supreme Court of Queensland (Brisbane, 2003). The
Canadian Judicial Council has adopted a set of principles dealing with the
issue. Principle A is “promoting rights of access”; Principle B is “promoting
equal justice”; Principle C is “responsibilities of the participants in the
justice system”: Statement of Principles on Self-represented Litigants and
Accused Persons (Canadian Judicial Council, September 2006).
[174] Ibid 518-519 (taken from the headnote). Similar guidelines
were produced for the Australian Institute
of Judicial Administration by Smith J: Australian Institute of Judicial
Administration Incorporated, Litigants in Person Management Plans: Issues
for Courts and Tribunals (2001) Appendix 2.
[175] Brehoi v Minister for Immigration and Multicultural
Affairs [2001] FCA 931; Platcher v Joseph [2004] FCAFC 68, [137] (Weinberg J).
[176] Santamaria v Secretary to Department of Human Services
[1998] VSC 107, [14]-[15] (the former guidelines);
Zegarac v Tomasevic [2003] VSC 150, [3] (the revised guidelines).
[179] Compare Luck v Renton [2005] VSCA 210, [65]-[66] where Maxwell P and Harper AJA
held a judge of this Court had failed to afford procedural fairness to a
self-represented litigant by dismissing her applications for an extension of
time and for leave to appeal when she was too distressed to present arguments
in support of them.
......................................................................
High Court of Australia
Brennan, Dawson, Toohey, Gaudron and McHugh JJ.
S v The Queen
[1989] HCA 66
ORDER
Application for special leave to appeal granted.
Appeal allowed.
Set aside the orders of the Court of Criminal Appeal of
Western Australia. In lieu thereof order that the appeal to that Court
be allowed, that the convictions be quashed and that there be a new
trial.
Cur. adv. vult.
The following written judgments were delivered:—
- (1977) 136 C.L.R. 465, at p. 472.
- (1917) 116 L.T. 820.
- (1937) 59 C.L.R. 467.
- [1914] 2 K.B. 99; (1913) 9 Cr. App. R. 252.
- [1914] 2 K.B., at p. 105; (1913) 9 Cr. App. R., at p. 260.
- [1914] 2 K.B., at p. 103; (1913) 9 Cr. App. R., at p. 258.
- [1916] V.L.R. 639.
- (1977) 137 C.L.R. 517, at p. 527.
- [1911] A.C. 47.
- (1936) 55 C.L.R. 367, at pp. 394-396.
- (1937) 59 C.L.R., at p. 490.
- (1837) 7 C. & P. 836 [173 E.R. 364].
- (1937) 59 C.L.R. 467.
- (1937) 59 C.L.R. 467, at p. 486.
- (1973) 58 Cr. App. R. 394, at p. 403.
- [1924] S.A.S.R. 326, at p. 340.
- (1937) 59 C.L.R., at pp. 488-489.
- (1989) 168 C.L.R. 1, at pp. 15-19.
- (1937) 59 C.L.R., at pp. 489-490.
- (1917) 86 L.J.K.B. 1052, at p. 1054.
- (1989) 167 C.L.R. 590.
- [1911] A.C. 47.
- [1974] W.A.R. 45, at p. 47.
- [1914] 2 K.B. 99.
- (1912) 8 Tas. L.R. 28.
- [1916] V.L.R. 639.
- [1988] W.A.R. 196.
- (1937) 59 C.L.R., at p. 489.
- (1988) 164 C.L.R. 365, at pp. 372-373.
- [1957] St. R. Qd 512, at p. 523.
- [1911] A.C. 47.
- [1894] A.C. 57.
- (1989) 167 C.L.R. 590.
- (1735) 2 Str. 999 [93 E.R. 993].
- (1735) 2 Str., at p. 999 [93 E.R., at p. 994].
- (1769) 4 Burr. 2471 [98 E.R. 295].
- (1789) 3 T.R. 98, at p. 100 [100 E.R. 475, at p. 477].
- (1917) 86 L.J.K.B. 1052.
- (1917) 86 L.J.K.B., at p. 1054.
- (1917) 86 L.J.K.B., at pp. 1054-1055.
- [1974] W.A.R. 45, at pp. 51-53.
- [1980] W.A.R. 203, at p. 204.
- (1937) 59 C.L.R. 467, at p. 489.
- (1988) 164 C.L.R. 365, at p. 373.
- (1623) 2 Rolle 263 [ 81 E.R. 788].
- (1696) 5 Mod. 137 [87 E.R. 568].
- (1787) 2 Chit. 519.
- (1794) 5 T.R. 607, at p. 623 [101 E.R. 340, at p. 348].
- (1827) 1 Y. & J. 221 [148 E.R. 653].
- (1890) 24 Q.B.D. 634, at p. 637.
- (1735) 2 Str. 999 [93 E.R. 993].
- (1769) 4 Burr. 2471 [98 E.R. 295].
- (1904) 91 L.T. 98.
- [1932] 1 K.B. 450.
- (1735) 2 Str., at p. 999 [93 E.R., at p. 994].
- (1794) 5 T.R., at p. 623 [101 E.R., at p. 348].
- (1825) 6 Dowl. & Ry. 143, at p. 146 [28 R.R. 538, at p. 541].
- (1827) 1 Y. & J., at pp. 224-225 [148 E.R., at p. 654].
- (1890) 24 Q.B.D., at p. 639.
- [1974] W.A.R. 45, at pp. 52-53.
- (1937) 59 C.L.R. 467.
- (1937) 59 C.L.R., at p. 487.
- (1937) 59 C.L.R., at p. 495.
- (1937) 59 C.L.R., at pp. 480-481, 486, 497-498, 501.
- (1988) 165 C.L.R. 292, at p. 294.
- (1937) 59 C.L.R., at p. 490.
- (1988) 62 A.L.J.R. 656, at p. 668.
Dec. 21
The applicant was convicted before the District
Court of Western Australia on three counts of incest with his daughter.
The daughter gave evidence that, from the age of nine or ten, her father
had engaged in sexual acts with her and that, as she grew older, he
went further until he had sexual intercourse with her when she was aged
about fourteen. Her fourteenth birthday was in November 1979. She said
that he had intercourse with her thereafter until she left home in
February 1983, when she was aged seventeen. She described the initial
act of a sexual kind which he committed with her and the first occasion
when he had sexual intercourse with her. Her evidence of these events
was given in general terms. After describing the first occasion when he
had intercourse with her, her evidence continued:
→
After
that first occasion, were there any further acts of intercourse? — Yes.
There were further acts but I cannot remember all the details of them
or when they were. I have blanked them out.
She also gave evidence that on some occasions her father used to
put on her mother's underpants and slips and that the first occasion he
did this was an occasion when he had intercourse with her.
Is there any particular reason why you can't remember the exact details? — I have blanked them all out, tried to forget them.
But do you know over what period of time they continued? — They would have been over the next two years.
Until what age? — Until I left home at seventeen.
Are you able to tell the members of the jury how
often during those years until you left home such acts occurred? —
Actual sexual intercourse wasn't too often, but it was a couple of
times.
→
A couple of times every how often? — Every couple of months for a year.
→
None of the counts was linked
to either of the specific acts of intercourse mentioned by the daughter
in evidence. The evidence was equivocal as to whether the first act of
intercourse took place before or during the period mentioned in the
first count in the indictment. The act which occurred when the applicant
allegedly first donned women's clothes was not attributed to any one of
the periods mentioned in the three counts in the indictment. The Crown
case was simply that an incestuous relationship existed during each of
the periods mentioned in the three counts, but the acts of intercourse
constituting the alleged incestuous relationship were not
distinguishable one from another save as to the different occasions of
their occurrence. When the trial judge came to sum up he directed the
jury: "You have to be satisfied beyond reasonable doubt that at least on
one occasion during each of these years there was such penetration."
The jury having convicted on all three counts, the applicant's appeal
was dismissed by a majority of the Court of Criminal Appeal (Brinsden
and Smith JJ., Kennedy J. dissenting).
The Crown presented an indictment in the District
Court of Western Australia at Perth charging the applicant on three
counts of incest: the first "[o]n a date unknown between the 1 January
1980 and the 31 December 1980", the second "on a date unknown between
the 1 January 1981 and the 31 December 1981" and the third "on a date
unknown between the 8 November 1981 and the 8 November 1982". Before the
trial commenced counsel for the applicant sought particulars of the
charge to which each count in the indictment related. The application
was refused by the Crown and the trial judge declined to make any order.
The Crown's position was stated by the prosecutor:
→
The
Crown is alleging that in each of those three years there was one act
of sexual intercourse by the accused with the girl in question which
constitutes the alleged offence. It can't be particularised as to any
particular month and that is why it is pleaded in each count on a date
unknown between the beginning of the year and the end of the year. When
Your Honour has regard to the fact that the defence has had available to
it the full depositions which set out exactly the testimony which the
girl is to give, Your Honour will observe that really the girl was quite
young at the time; that she has recounted that there were continual
acts of sexual intercourse over those three years and the Crown has
elected to charge one in each year.
→
→
→
The applicant's argument in support of the
application for special leave to this Court rested on the proposition
that, where a count in an indictment alleges one specific offence, it is
not open to the Crown to lead evidence of a number of acts which amount
to the actus reus and then to invite the jury to convict on any one of
the acts led in evidence. Although each count in the indictment was
regular on its face, it referred indifferently to a number of acts of
intercourse indistinguishable one from another save as to the different
occasions of their occurrence. The facts thus disclosed that, in each
count, there was a latent ambiguity which was not removed by
particulars, nor by an election by the prosecution to proceed on a
particular act falling within the period specified in the count, nor by
construing the count as relating to the first of the offences committed
within the specified period (as Jacobs J. suggested in Mackay v. The
Queen
[1]
). To allow the trial to proceed without confining each count to a
single act of intercourse was an error of law which, subject to the
proviso in s. 689(1) of the Criminal Code
W.A., entitled the applicant on appeal to an order quashing the conviction: Parker v. Sutherland
[2]
; Johnson v. Miller
[3]
.
However, the proviso to s. 689(1) authorizes the
Court of Criminal Appeal not to make such an order where there has been
no substantial miscarriage of justice. Whether there has been a
substantial miscarriage depends on the actual circumstances of the case.
In a case similar to the present, R. v. Thompson
[4]
, an enlarged bench of the Court of Criminal Appeal considered the
problems of uncertainty and duplicity in an indictment charging a
father with an act of incest with his daughter during two consecutive
periods, one of twenty-one months, the other of twenty-nine months.
Isaacs C.J., speaking for the Court, assumed that the appellant could
have moved in arrest of judgment but nevertheless held that no
substantial miscarriage of justice had occurred. His Lordship said
[5]
:
One of the objects of s. 4 [of the Criminal Appeal Act 1907
U.K.] was to
prevent the quashing of a conviction upon a mere technicality which had
caused no embarrassment or prejudice. Whilst giving the right of appeal
upon any wrong decision of any question of law, the object of the
Legislature was that justice should be done in spite of a wrong decision
and that the Court should not interfere if it came to the conclusion
that, notwithstanding the wrong decision, there had been no substantial
miscarriage of justice.
→
The Court concluded that there was no
substantial miscarriage of justice because the failure to identify a
single act of intercourse as the act charged in the indictment caused no
embarrassment or prejudice at the trial "inasmuch as in the depositions
and during the trial offences were proved on specific dates of which
the appellant had had ample notice, and for which the defence was fully
prepared":
[6]
. In R. v. Conley
[7]
, the applicant in a Crown Case Reserved was convicted on an
indictment charging unlawful carnal knowledge of a girl "in the month of
July 1915", the evidence revealing four or five acts of intercourse
during that month. The authority of the case on some points has been
overtaken by the judgment of this Court in Johnson v. Miller
but the Full Court, holding the proviso to be applicable to Crown
Cases Reserved, noted that the applicant "was not embarrassed or
prejudiced at the trial".
→
In considering the application of the proviso, it
is erroneous to conjure up fanciful possibilities of embarrassment or
prejudice. The proviso prevents the frustration of the basic intent of
the criminal appeal statute which, in the absence of the proviso, might
plunge "the administration of the criminal law into outworn
technicality": Driscoll v. The Queen
[8]
, per Barwick C.J. What embarrassment or prejudice resulted from
the error of law in this case? It is not suggested that the applicant
was not fully aware of the evidence to be called in the Crown case.
There was no prejudice to be found in the admission of evidence. As in Thompson
, evidence of the entire incestuous relationship was admissible on the
trial whether the indictment charged one offence or several: R. v. Ball
[9]
; Martin v. Osborne
[10]
. The applicant was not prejudiced in countering the allegations.
Had the applicant wished to impugn the imprecise evidence of the
daughter relating to any of the intermittent acts of intercourse of
which she spoke, he could have done so with as much (or as little)
effect whether or not each of the counts in the indictment had been
confined to a single act. The artificiality of any suggestion of
prejudice is apparent if one postulates the manner in which the Crown
might have given particulars which would have confined each count to a
single act. The particulars could not have furnished the date and time
of the act selected; the particulars would have consisted in no more
than a selection of the first act (or the second, third, fourth, fifth
or sixth act) of intercourse within a relevant period. There was nothing
distinctive about the evidence of any act by which to differentiate it
from any other occurring within the periods specified in the indictment
apart from the order of its occurrence. If there was embarrassment, it
consisted in the lack of specificity in the evidence; not in the latent
ambiguity or duplicity of the counts in the indictment. The case is not
comparable with Johnson v. Miller where
each set of facts to which the information in that case might have
related opened the way to a distinct defence: see per Dixon J.
[11]
.
It is, in my respectful view, fanciful to suggest
that the verdict could have been returned because some jurors were
satisfied that one act of intercourse occurred, others that another act
occurred and others again that a third act occurred within a relevant
period. The real choice for the jury was to be satisfied or not to be
satisfied that the series of incestuous acts occurred. The jury could
not have found that a particular act in the series occurred but another
did not. There was nothing by which the jurors might have distinguished
between one act and another. I am also unable to accept the suggestion
that there is some prejudice to the applicant in his supposed inability
to plead autrefois convict if he should be charged hereafter with an act
of intercourse falling within a relevant period. The terms of the
present conviction, if drawn up conformably with the indictment, would
comprehend any act of intercourse committed within the relevant period.
By proving that conviction, the applicant would discharge the
evidentiary onus of proving the identity of any offence which might be
charged in respect of a period with the offence of which he has now been
convicted in respect of the same period and the Crown would have to
show that the offence with which he is then charged is an offence other
than the offence for which he has been convicted: R. v. Parry
[12]
. That would be an impossible onus for the Crown to discharge. If
the Crown were hereafter to charge two offences within the same period —
a course which is not realistically to be contemplated — it may be that
the applicant could assign his conviction to whichever offence he
chooses. In any event, there is no risk of a double conviction if only
one act of intercourse occurred.
In these particular circumstances, though the point
taken is good in law, the error in allowing the trial to proceed
without particulars caused no substantial miscarriage of justice. As
this was the only error relied on in this Court, it is impossible to say
that the Court of Criminal Appeal ought to have allowed the appeal. We
are not called on to consider whether the evidence was sufficient to
support the verdict. I would grant special leave to appeal as the
application of the proviso in a case to which Johnson v. Miller
[13]
applies is a question of some importance, but I would dismiss the appeal.
The indictment upon which the applicant was
presented for trial contained three separate counts of incest. None of
the counts specified the day upon which the act of incest was alleged to
have occurred; in each instance the act was alleged to have taken place
upon a date unknown during a twelve-month period. Thus the first count
alleged one act of incest between 1 January 1980 and 31 December 1980,
the second alleged one act between 1 January 1981 and 31 December 1981
and the third alleged one act between 8 November 1981 and 8 November
1982. This form of pleading is quite proper where the date is not an
essential part of the alleged offence and, of itself, does not render a
count bad for insufficiency of particulars.
However, before the applicant was arraigned, his
counsel sought particulars of each of the three counts and sought an
adjournment to enable those particulars to be supplied. In making his
application, counsel for the applicant identified the problems which
were likely to emerge, namely, that if the evidence called by the
prosecution revealed more than one offence during each of the three
years in question it would not be possible to say which of the offences
was the one alleged. The learned trial judge, however, declined to order
particulars and did not accede to the application for an adjournment.
The situation envisaged by counsel for the
applicant was that which eventuated. The evidence of the applicant's
daughter, who was the complainant, disclosed numerous acts of
intercourse. She said that the first act of intercourse took place in
"about 1979, '80" when she was fourteen years of age. The complainant
was born on 8 November 1965. Thus the first act of intercourse which she
alleged may or may not have taken place during the period of one year
alleged in the first count. The complainant said that acts of
intercourse continued over the next two years until she left home at the
age of seventeen years. Her examination in chief continued:
Are
you able to tell the members of the jury how often during those years
until you left home such acts occurred? — Actual sexual intercourse
wasn't too often, but it was a couple of times.
By the last answer the complainant evidently meant that
intercourse occurred every couple of months during each of the three
years, but she was unable to be more specific than that. The only two
acts of intercourse which the complainant was able to describe in more
detail were the first, which, as I have said, may or may not have
occurred during the first period of one year and another act, which the
complainant could not ascribe to any period, which occurred when the
applicant was alleged to have put on some of his wife's clothing.
A couple of times every how often? — Every couple of months for a year.
Thus, notwithstanding that each count in the
indictment charged the applicant with one offence only, the evidence
revealed a multiplicity of offences with nothing to identify any one of
them as the offence with which the applicant was charged in any
particular count. No application was made that the prosecution be put to
its election for the purpose of identifying the specific occasions upon
which it relied as constituting the offences in question, nor did the
trial judge put the prosecution to its election. Instead, he left it to
the jury "to determine whether on the three occasions cited in the
indictment, the accused did have carnal knowledge of his daughter
". The indictment, of course, did nothing to specify
which of the multiple acts of intercourse were those alleged to
constitute the offences with which the applicant was charged. The
applicant was convicted upon all three counts.
As I have said, the three counts in the indictment
were framed in a permissible way. Each charged only one offence and gave
rise to no duplicity. Had the evidence revealed only one offence in
each of the years in question, there could have been no complaint about
the form of the indictment. But the evidence disclosed a number of
offences during each of those years, any one of which fell within the
description of the relevant count. Because of this there was what has
been called a "latent ambiguity" in each of the counts: see Johnson v. Miller
[14]
, per Dixon J. That ambiguity required correction if the applicant was to have a fair trial.
The material before us does not reveal whether the
ambiguity was apparent by reference to the depositions at the time that
the applicant made application for particulars. If it was, it may have
been appropriate for the trial judge to have ordered that particulars be
given identifying the offences charged, if not by reference to time, by
reference to other distinguishing features. If at that stage such a
course was inappropriate and it was necessary for the prosecution to
call its evidence for the precise nature of the defect in the
proceedings to emerge, the prosecution ought to have been required as
soon as the defect became apparent to elect by indicating which of the
offences revealed by the evidence were the offences charged. In some
cases (although not, it would seem, the present one) the ambiguity may
be removed by an amendment of the indictment splitting a count into
several counts or by adding further counts so as to distinguish the
separate occasions alleged. Such an amendment may only be allowed if it
does not cause injustice or prejudice to the accused and that generally
means that it cannot be made during the course of a trial: Radley
[15]
. The power of a court to impose the appropriate requirement in
order to secure a fair trial and protect its process from abuse will
ordinarily be either implied or inherent: see Tucker v. Noblet
[16]
; Johnson v. Miller
[17]
; Grassby v. The Queen
[18]
.
There was, I think, obvious embarrassment to the
applicant in having to defend himself in relation to an indeterminate
number of occasions, unspecified in all but two instances, any one of
which might, if it occurred in one of the relevant years, constitute one
of the offences charged. There was the additional embarrassment that
the years in the second and third counts overlapped so that if an
occasion fell within the overlapping period it was not possible to
determine whether it was an offence charged by count two or by count
three.
The occasions upon which the offences alleged took
place were unidentified and the applicant was, in effect, reduced to a
general denial in pleading his defence. He was precluded from raising
more specific and, therefore, more effective defences, such as the
defence of alibi. Because the occasions on which he was alleged to have
committed the offences charged were unspecified, he was unable to know
how he might have answered them had they been specified. It is not to
the point that the prosecution may have found it difficult or even
impossible to make an election because of the generally unsatisfactory
evidence of the complainant. An accused is not to be prejudiced in his
defence by the inability of the prosecution to observe the rules of
procedural fairness.
Not only was the applicant embarrassed in putting
his defence, but as the prosecution was not put to its election, the
trial proceeded in a manner which made it impossible to deal with
questions of the admissibility of similar fact evidence: see Johnson v. Miller
[19]
; Parker v. Sutherland
[20]
. True it is that evidence of acts of intercourse other than those
charged may have been admissible as similar facts of sufficient
probative force to warrant their admission in evidence. I attempted to
explain in Harriman v. The Queen
[21]
that when such evidence is admitted in a case of this kind its
relevance is said to lie in establishing the relationship between the
two persons involved in the commission of the offence, or the guilty
passion existing between them, but it is in truth nothing more than
evidence of a propensity on the part of the accused of a sufficiently
high degree of relevance as to justify its admission. Cf. R. v. Ball
[22]
. Obviously that high degree of relevance can only occur where the
evidence of propensity is related to a specific offence upon an
identified occasion. If no occasion is identified, the necessary
relationship cannot exist. In this case, where there was a failure to
identify the occasions upon which the offences charged took place, the
whole of the evidence was, in effect, evidence of propensity which could
not be related to the offences charged because of the lack of
identification of those offences. In other words, the prosecution case
sought to go no further than to establish that an incestuous
relationship existed between the applicant and his daughter — which is
to do no more than establish a particular kind of propensity — and to
assert the guilt of the applicant upon three unspecified occasions
during the existence of, and upon the basis of, that relationship. Far
from establishing the necessary high degree of relevance, to proceed in
this way was to obtain the conviction of the applicant upon evidence of
propensity unrelated to a specific offence upon an identified occasion.
Such a course was clearly objectionable.
The case having proceeded as it did, it is
theoretically possible that individual jurors identified different
occasions as constituting the relevant offences so that there was no
unanimity in relation to their verdict. That, of course, would be
unacceptable, but it is more likely that the jury reached their verdict
without identifying any particular occasions. Indeed, that is virtually
inevitable because no means were afforded the jury whereby they could
identify specific occasions. As I have indicated, such a result is
tantamount to their having convicted the applicant, not in relation to
identifiable offences, but only upon the basis of a general disposition
on his part to commit offences of the kind charged.
→
→
Moreover, the law requires that there be certainty
as to the particular offence of which an accused is charged, if for no
other reason than that he should, if charged with the same offence a
second time, be able to plead autrefois convict or autrefois acquit. It
was submitted that s. 17 of the Criminal Code
W.A. would enable
the applicant to plead autrefois convict in relation to any offence
which might have been taken by the jury to be one of the three offences
specified in the three counts. Section 17 provides:
→
→
It
is a defence to a charge of any offence to show that the accused person
has already been tried, and convicted or acquitted upon an indictment
on which he might have been convicted of the offence with which he is
charged, or has already been acquitted upon indictment, or has already
been convicted, of an offence of which he might be convicted upon the
indictment or complaint on which he is charged.
→
As I understand the
submission, it is that, because the applicant may have been convicted
in relation to any one of a number of occasions within each of the three
periods referred to in the three counts, if he were subsequently
charged with an offence constituted by one of those occasions, he would
be able to plead that it was an offence of which he might have been
convicted upon the indictment in question in this case. The relevant
purpose of s. 17 is, however, to cover alternative verdicts available at
common law or by statute: see O'Halloran v. O'Byrne
[23]
. It is not intended to apply in the circumstances of this case.
Nor would it do so. If the applicant were simply to be charged with
another offence of carnal knowledge of the complainant within one of the
periods specified in the indictment upon which he was convicted,
uncertainty might exist whether the offence charged was the same as one
of the offences of which he was convicted. But that uncertainty would be
removed, if by no other means, by charging him with an offence
expressed to be other than the one of which he was convicted. The defect
of ambiguity in the present case would be continued in the subsequent
proceedings and a plea in bar would be no answer.
→
There have been cases in which it has been held
that latent ambiguity or even duplicity in an indictment does not
necessarily lead to a substantial miscarriage of justice: see R. v.
Thompson
[24]
; R. v. Smythe & Blanton
[25]
; R. v. Conley
[26]
; Coleman and Del Carlo v. The Queen
[27]
. But in those cases either no embarrassment or prejudice was
alleged or no point was taken at the trial. In any event, the earlier
cases must be read subject to the decision of this Court in Johnson v. Miller
in which it was held that a complaint was rightly dismissed because of
the failure of the prosecution to cure a latent ambiguity by
identifying the one transaction out of a number upon which it relied.
The offence in that case was a summary offence, but the observations of
Dixon J.
[28]
, are of general application. He said:
In my
opinion he [the prosecutor] clearly should be required to identify the
transaction on which he relies and he should be so required as soon as
it appears that his complaint, in spite of its apparent particularity,
is equally capable of referring to a number of occurrences each of which
constitutes the offence the legal nature of which is described in the
complaint. For a defendant is entitled to be apprised not only of the
legal nature of the offence with which he is charged but also of the
particular act, matter or thing alleged as the foundation of the charge.
The court hearing a complaint or information for an offence must have
before it a means of identifying with the matter or transaction alleged
in the document the matter or transaction appearing in evidence.
At all events, where there is real ambiguity and
the point is taken, as it was in this case, failure to correct the
ambiguity means that the accused has not had a proper trial and there
is, for that reason, a substantial miscarriage of justice which
precludes the application of the proviso contained in s. 689 of the
Code. It is, therefore, unnecessary to consider whether, had the
applicant been properly tried, he would inevitably have been convicted.
He was entitled to a fair trial and his conviction in proceedings which
were fundamentally flawed cannot be sustained: Wilde v. The Queen
[29]
.
I would grant special leave, allow the appeal, quash the convictions and order a retrial.
The circumstances giving rise to this appeal are
set out in the judgments of other members of the Court. There is no need
to repeat in any detail what is said there.
Before us, counsel for the applicant made it clear
that there was no attack on the indictment; in particular, it was not
contended that the indictment was bad for duplicity. There were three
counts. Each alleged an act of carnal knowledge "on a date unknown", "at
Balcatta". The first count referred to the period between 1 January and
31 December 1980, the second between 1 January and 31 December 1981,
and the third between 8 November 1981 and 8 November 1982. It will be
seen that there was an overlap of nearly two months between the periods
specified in the second and third counts.
Section 582 of the Criminal Code
W.A. requires an
indictment to "set forth the offence with which the accused person is
charged in such a manner and with such particulars as to the alleged
time and place of committing the offence as may be necessary to inform
the accused person of the nature of the charge". In Reg. v. Phil Maria
[30]
, Stanley J. said of the Queensland counterpart of s. 582: "In my
opinion, the Code aims at continuing the common law practice — one
charge, known to the accused, with particulars if needed, giving every
fair opportunity to prepare his defence to what is charged and
particularised against him."
The Crown declined to furnish particulars of the
charges against the applicant. An application for particulars to the
trial judge was refused, his Honour accepting the argument of the Crown
that no better particulars could be furnished. Before the committal
proceedings, the applicant knew little more of what was alleged against
him than that on an unspecified occasion in each of the twelve-monthly
periods identified he had carnal knowledge of his daughter. At trial, he
was of course somewhat better informed by reason of the committal
proceedings, at which the complainant gave evidence.
Nevertheless, as already mentioned, the applicant's
argument in this Court was not directed to the indictment. The argument
was that each count alleged a separate offence but that the Crown was
permitted to lead evidence of a number of acts, each of carnal knowledge
of the complainant, and that the jury were invited to convict the
applicant so long as they found proved any act of carnal knowledge
within the period specified. Thus the argument focused on the manner in
which the trial was conducted.
In her evidence the complainant identified two
specific acts of intercourse with the applicant, one being the "first
occasion" such an act occurred, which was when the complainant was at
high school, and the other being the initial occasion of several when
the applicant put on his wife's underclothing. The first occasion was
identified, by reference to the complainant's schooling, as having
occurred in 1979 or 1980. The other occasion was not identified, even as
to year. The complainant also gave evidence of other acts of sexual
intercourse on unspecified occasions, including "Every couple of months
for a year." The closest the complainant came to identifying times was
after she described the "first occasion" and then said, in regard to
other acts of intercourse, "They would have been over the next two
years."
Objection was taken at trial to evidence concerning
other acts of an indecent nature, but not to the generalized evidence
of intercourse between the applicant and complainant. Therefore it is
not possible to identify with certainty the basis on which the latter
evidence was admitted. While evidence of similar facts ordinarily
involves conduct relating to persons other than the complainant, it is
not necessarily so confined. In R. v. Ball
[31]
where a brother and sister were each charged with counts of
incest, evidence was admitted to show that they had previously lived
together as husband and wife and that the female defendant had given
birth to a child which she registered, describing herself as the mother
and the male defendant as the father. Lord Loreburn L.C., with whom the
other members of the House of Lords agreed, applied Makin v.
Attorney-General (N.S.W.)
[32]
in upholding the admissibility of the evidence of the earlier
relationship. However, evidence which bears on the relationship between
an accused and a complainant over a period of time may not in truth be
similar fact evidence where it is admitted, not to show propensity but
rather the relationship between the parties: see the discussion by
McHugh J. in Harriman v. The Queen
[33]
.
In the present case, the real difficulty with
treating the generalized evidence as evidence of similar facts or
relationship is the problem of identifying the alleged offence on which
the similar conduct or relationship is said to bear. As the evidence
unfolded at trial, there was nothing to indicate that, in respect of
each year, the Crown relied upon a particular act which was the
culmination of other such acts. In that sense there was no chronology of
events. It is true that a particular occasion was identified by the
complainant, if only as the first time intercourse occurred. But while
that act of intercourse may have occurred within the period identified
in the first count, on the complainant's testimony it may equally have
occurred in 1979. And it is not possible to say of the other specific
act identified by the complainant (the first occasion when the applicant
had carnal knowledge of her while dressed in his wife's underclothing)
that it occurred in any, and if so which, of the three periods specified
in the indictment. Nor is it possible to fit any of the other occasions
mentioned by the complainant within a specific time frame referred to
in the indictment.
In the course of his direction to the jury, the trial judge said:
you have to view the three charges as three
separate trials and you must come to a separate finding in relation to
each of the three charges You must give consideration to each separate
charge and come to a separate verdict on each charge.
Later his
Honour referred to "a lack of specificity as to dates" and the length of
each period involved, commenting, "the Crown says there were acts, at
least one act, in each of those periods. You must be satisfied to that."
At the end of his summing up his Honour repeated
the need for the jury "to determine whether on the three occasions
cited in the indictment, the accused did have carnal knowledge of his
daughter". His Honour did not say what the three occasions were or what
they might be and, of course, the Crown had consistently declined to
identify those occasions. Earlier the trial judge had told the jury that
they had to be "satisfied beyond reasonable doubt that at least on one
occasion during each of these years there was such penetration", a
reference to the penetration necessary to constitute carnal knowledge,
but again without attempting to identify any of those occasions. No
redirection was sought by the applicant's then counsel.
The indictment was not open to challenge on the
ground of duplicity in the ordinary sense of that term. It did not
offend against the proscription, as expressed in Archbold, Pleading,
Evidence and Practice in Criminal Cases, 43rd ed. (1988), p. 46, that
"no one count of the indictment should charge the defendant with having
committed two or more separate offences". Nor, subject to the question
of particulars, was it in breach of s. 582 of the Code.
The objection in cases such as the present one is
that the accused does not know with any certainty the charge he has to
meet. The problem was recognized as early as 1735 in R. v. Robe
[34]
"and for this fault the judgment was arrested"
[35]
. See also Davy v. Baker
[36]
; Young v. The King
[37]
and generally Chitty's Criminal Law, 2nd ed. (1826), vol. 1, pp.
168-169. The problem was adverted to again in Parker v. Sutherland
[38]
, though emphasis was placed on the difficulty of pleading
autrefois convict because of doubt as to the particular offence of which
the offender had been convicted: see Viscount Reading C.J.
[39]
, and Avory J.
[40]
. I do not think that such a difficulty truly arises in the present case.
Section 17 of the Code reads:
Section 17 of the Code reads:
It
is a defence to a charge of any offence to show that the accused person
has already been tried, and convicted upon an indictment on which he
might have been convicted of the offence with which he is charged, or
has already been convicted, of an offence of which he might be convicted
upon the indictment on which he is charged.
The operation of s. 17 was discussed by Wickham J. in O'Halloran v. O'Byrne
[41]
. The applicant has been convicted of the offence that he
"carnally knew" his daughter at Balcatta on an occasion during each of
the periods specified in the indictment. If he were later charged with
an offence of carnally knowing his daughter at Balcatta during any one
of those periods, the very absence of specificity in the indictment
would ensure that the concluding words of s. 17 would support a plea of
autrefois convict: cf. Jones v. The Queen
[42]
. This would be so even if the applicant were later charged with
two or more counts in any of the periods identified in the original
indictment.
But the problem of uncertainty in knowing the charge to be met still remains. This issue was considered by Dixon J. in Johnson v. Miller
[43]
, when his Honour said:
the question is whether the prosecutor should not
be required to identify one of a number of sets of facts, each amounting
to the commission of the same offence as that on which the charge is
based. In my opinion he clearly should be required to identify the
transaction on which he relies and he should be so required as soon as
it appears that his complaint, in spite of its apparent particularity,
is equally capable of referring to a number of occurrences each of which
constitutes the offence the legal nature of which is described in the
complaint. For a defendant is entitled to be apprised not only of the
legal nature of the offence with which he is charged but also of the
particular act, matter or thing alleged as the foundation of the charge.
Of course this does not mean that the prosecution
must specify a particular date as the occasion on which it relies. But
it does mean that, as soon as it appears that a count in the indictment
is equally capable of referring to a number of occasions, each of which
constitutes the offence the legal nature of which is described in the
count, the prosecution should identify the occasion which is said to
give rise to the offence charged. This did not happen in the present
case nor did the trial judge adequately convey to the jury the
difficulties facing the applicant by reason of the failure to do so. The
matter was left to the jury on the basis that so long as they were
satisfied an act of carnal knowledge occurred during a period specified
in a count in the indictment, they could convict the applicant on that
count. The trial miscarried for that reason.
Nevertheless, the question remains whether, in the
language of s. 689 of the Code, the appeal to the Court of Criminal
Appeal should have been dismissed because the Court should have
concluded that "no substantial miscarriage of justice has actually
occurred". It may be argued, indeed was argued by the Crown, that had
one particular act of carnal knowledge been identified by the Crown
prosecutor in respect of each count, the applicant would have been no
better off than he was at the trial. He would still have been faced with
evidence of continuing acts of intercourse over a period of some years
and his denial would still have been of a general nature as it was at
trial. There is some force in this submission but it is not enough to
justify a conclusion that no miscarriage of justice actually occurred.
This Court said in Wilde v. The Queen
[44]
: "It is one thing to apply the proviso to prevent the
administration of the criminal law from being "plunged into outworn
technicality"
; it is another to uphold a conviction after a
proceeding which is fundamentally flawed, merely because the appeal
court is of the opinion that on a proper trial the appellant would
inevitably have been convicted."
This trial was fundamentally flawed in that the
jury were invited to convict the applicant so long as they were
satisfied that within any of the periods specified in the indictment the
applicant "carnally knew" the complainant. Put that way, the acts of
intercourse described in the generalized evidence were available, not
merely as going to prove any of the offences charged against the
applicant but as the offences themselves. In respect of each count, the
jury were not required to direct their attention to any particular
occasion and to satisfy themselves, beyond reasonable doubt, that there
was such an occasion and that it occurred within the period specified in
the count. There was a real likelihood that they would convict the
applicant on the basis that since acts of carnal knowledge were
frequent, an act must have occurred during each of the periods mentioned
in the indictment.
In those circumstances it is inappropriate to apply
the proviso. There should be special leave to appeal and the appeal
allowed. There should be an order for a new trial though the Crown will
have to consider whether, in all the circumstances, there can be a new
trial which will not miscarry as this trial miscarried.
The applicant (referred to as "S." in order to
protect the identity of the complainant) seeks special leave to appeal
from a decision of the Court of Criminal Appeal of the Supreme Court of
Western Australia dismissing his appeal against convictions on three
counts of carnal knowledge of his daughter ("J.").
The counts upon which the applicant was convicted
each charged one act of carnal knowledge on a date unknown within a
specified period of twelve months. The periods specified were those
between 1 January 1980 and 31 December 1980, between 1 January 1981 and
31 December 1981, and between 8 November 1981 and 8 November 1982. An
application by counsel for S. for an adjournment pending the supply of
further and better particulars was rejected by the trial judge. An
application that the prosecutor nominate or identify the acts the
subject of the counts in the indictment was also unsuccessful.
The apprehended difficulties which, presumably, led
to the unsuccessful applications that the acts charged be
particularized or identified became apparent in the course of J.'s
evidence in the trial. She gave evidence of two specific acts of sexual
intercourse. However, there was no evidence to link either act to any
one of the specified periods. In this Court, it was conceded by counsel
for the Crown that one such act may have taken place prior to 1 January
1980. Apart from these two acts, the evidence of the complainant was to
the effect that sexual intercourse occurred over a period of two years
until she left home at the age of seventeen. She could not remember
details or frequency other than that it occurred "[e]very couple of
months for a year". The complainant turned seventeen on 8 November 1982.
Although other issues were raised in the Court of
Criminal Appeal, the present application is made by reference to the
matters above outlined. Those matters reveal a problem which, by reason
of its similarity with the problem involved when a count in an
indictment charges two or more separate offences, has sometimes been
referred to as "latent duplicity". See, e.g., Hunter, Prosecutors'
Pleadings and the Rule Against Duplicity, University of New South Wales
Law Journal, vol. 3 (1980) 248, at pp. 271-273
.
The rule against duplicitous counts in an indictment originated as early as the seventeenth century. See, e.g., Smith v. Mall
[45]
; R. v. Stocker
[46]
. It may be, as suggested by Salhany in Duplicity — Is the Rule
Still Necessary?, Criminal Law Quarterly, vol. 6 (1963) 205, at pp.
206-207
, that the rule grew out of the strict formalities
associated with criminal pleadings at a time when the difference between
misdemeanour and felony was the difference between life and death.
However, the rule against duplicitous counts has, for a very long time,
rested on other considerations. One important consideration is the
orderly administration of criminal justice. There are a number of
aspects to this consideration: a court must know what charge it is
entertaining in order to ensure that evidence is properly admitted, and
in order to instruct the jury properly as to the law to be applied; in
the event of conviction, a court must know the offence for which the
defendant is to be punished; and the record must show of what offence a
person has been acquitted or convicted in order for that person to avail
himself or herself, if the need should arise, of a plea of autrefois
acquit or autrefois convict. See, generally, R. v. Sadler
[47]
; R. v. Hollond
[48]
, per Lord Kenyon C.J. See, as to the need for distinct
consideration in relation to penalty, R. v. Stocker; R. v. Sadler; R. v.
Morley
[49]
; Cotterill v. Lempriere
[50]
, per Lord Coleridge C.J. See, as to the availability of a plea in bar, R. v. Robe
[51]
; Davy v. Baker
[52]
; R. v. Wells; Ex parte Clifford
[53]
; R. v. Surrey Justices; Ex parte Witherick
[54]
.
The rule against duplicitous counts has also long
rested upon a basic consideration of fairness, namely, that an accused
should know what case he or she has to meet. See, e.g., R. v. Robe
[5]
where it was said "this is so general a charge, that it is
impossible any man can prepare to defend himself on this prosecution
" See also R. v. Hollond
[6]
, per Lord Kenyon C.J.; R. v. North
[7]
; R. v. Morley
[8]
; and Cotterill v. Lempriere
[9]
, per Lord Esher M.R. Of course, the degree of unfairness or
prejudice involved will vary from case to case, and it may be, as
suggested by Professor Glanville Williams in The Count System and the
Duplicity Rule [1966] Criminal Law Review 255, at p. 264
, that on occasions the uncertainty is not "such as to
disable the defendant from meeting the charge".
The matters which go to the orderly administration
of justice are not unrelated to the consideration that a duplicitous
count may be productive of prejudice. If the matter proceeds to trial,
there is the possibility that evidence will be wrongly admitted or that
incorrect directions will be given to the jury. There is also the
possibility that a jury, no matter how carefully directed, may reason
from the number of offences charged that the accused must be guilty of
at least one. However, it may be going too far to equate prejudice with
the difficulty of raising a defence of autrefois acquit or autrefois
convict, and, in any event, such problems as there are in that area may
be of less significance in those jurisdictions where the criminal law is
codified than in common law jurisdictions. See, in relation to s. 17 of
the Criminal Code
W.A. ("the Code"), O'Halloran v. O'Byrne, especially per Wickham J.
[10]
.
The problems which attend duplicitous counts also
attend proceedings in which the prosecution seeks to lead evidence of
multiple offences answering the description of the offence or offences
charged. Two such problems were made explicit in Johnson v. Miller
[11]
. In that case one offence was charged, but the prosecution
announced its intention of calling evidence of some thirty possible
offences. Dixon J. pointed out that, unless similar fact evidence were
admissible, the admission of "evidence of thirty distinct offences would
be contrary to law, and the fact that each satisfied the description
contained in the complaint could afford no justification for such a
breach of so important a rule"
[12]
. The second problem identified in that case concerned the
different defences that might be available to the different offences in
respect of which it was proposed to call evidence. In relation to that
problem Evatt J. said that the course proposed by the prosecution would
convert "a strictly judicial function — that of determining guilt or
innocence of a single offence — into an administrative commission of
inquiry into the question whether when there were thirty possible
occasions when an offence might have been committed, the defendant could exculpate himself in respect of all thirty occasions"
[13]
.
The Court of Criminal Appeal dismissed the
applicant's appeal, so far as it concerned the failure to particularize
or identify the act the subject of each charge, on the basis that the
applicant was not prejudiced in his defence. It seems that that
conclusion rested on the view that the applicant was not deprived of a
real opportunity to call alibi evidence, it being said by Brinsden J.
(with whom Smith J. agreed) that the applicant "did not suggest that
there was any period of time during the three years when he was away
from the matrimonial home for any lengthy period of time and it would
have had to be lengthy to have afforded a defence since the allegation
against him was that acts of unlawful carnal knowledge took place every
couple of months".
The question of prejudice goes somewhat deeper than
the question whether there was an effective denial of an opportunity to
call alibi evidence. The evidence of a number of offences said to have
been repeated at two-monthly intervals over a period of one year (which
period might fall anywhere within a period of almost three years) had
the same practical effect that was noted by Evatt J. in relation to the
course proposed in Johnson v. Miller. Effectively, the applicant was required to defend himself in respect of each occasion when an offence might
have been committed. Additionally, by reason that the offences were
neither particularized nor identified, the accused was effectively
denied an opportunity to test the credit of the complainant by reference
to surrounding circumstances such as would exist if the acts charged
had been identified in relation to some more precise time or by
reference to some other event or surrounding circumstance.
Prejudice is the focus of consideration when the
question is whether some order should be made as to the conduct of the
trial to avoid difficulties which may be occasioned by reason of
uncertainty as to what precisely is charged. Ordinarily, those
difficulties will be averted by ordering particulars, by amending the
indictment, or by putting the prosecution to its election and
appropriately confining the evidence to the offences charged. See Johnson v. Miller
[14]
. However, when a trial proceeds without an order averting those
difficulties, the question is whether there has been a blemish on the
trial amounting to a substantial miscarriage of justice. See s. 689(1)
of the Code.
The trial of the applicant was fundamentally flawed
by the admission of evidence of multiple acts of carnal knowledge and
by the way in which such evidence was left to the jury. The rule as to
the admissibility of evidence of offences, not being the offences
charged, is clear. Such evidence, whether identified as similar fact
evidence or by some other description, is only admissible if it has
probative value such that it raises the objective improbability of some
event having occurred other than as alleged by the prosecution. See Hoch
v. The Queen
[15]
. It is unnecessary to consider whether, on this basis, evidence
of other acts of carnal knowledge might have been admissible at the
trial. At the very least, as Dixon J. observed in Johnson v. Miller
[16]
, it would have been necessary for it to have been made clear what
acts were said to be the offences charged and what acts were said to be
similar facts.
Without that, it would be impossible to instruct the jury as to the use properly to be made of the evidence of other offences. More significantly in the present case, evidence of other acts of carnal knowledge was not left to the jury on the basis that such acts might prove the offences charged, but on the basis that the jury might be satisfied that one act of carnal knowledge occurred within each of the periods specified in the indictment.
Without that, it would be impossible to instruct the jury as to the use properly to be made of the evidence of other offences. More significantly in the present case, evidence of other acts of carnal knowledge was not left to the jury on the basis that such acts might prove the offences charged, but on the basis that the jury might be satisfied that one act of carnal knowledge occurred within each of the periods specified in the indictment.
The basis upon which the evidence was left to the
jury illustrates a fundamental problem which is addressed by the
requirement for certainty as to the offence charged, which requirement
also underlies the rule against duplicitous counts. Even leaving aside
the problem referable to the overlapping of the second and third periods
specified in the indictment, the basis upon which the evidence was left
to the jury allowed for the real possibility that different jurors
might have different acts in mind when they came to consider each of the
verdicts. Indeed, in view of the way the matter was left to the jury,
it might even be possible that, in relation to one or all of the counts,
individual jurors had no specific act in mind, but simply reasoned from
the evidence as to frequency that the applicant committed one such act
within each of the specified periods. In these circumstances, it is
impossible to say, in relation to any one count in the indictment, that
the jury as a whole was satisfied as to the applicant's guilt of an
individual act answering to the description of the offence charged.
Assuming the verdicts returned by the jury to constitute verdicts in the
accepted sense, it is impossible to say that, had the jury been
directed to consider the guilt of the accused of specific acts
identified as the offences charged, the verdicts of guilty "would
plainly have been the same". See Van der Meer v. The Queen
[17]
, per Deane J. That being so, it cannot be said that there was no substantial miscarriage of justice.
In the course of argument it was stated by counsel
for the Crown that it was impossible to particularize or identify any
individual act as the offence the subject of any count in the
indictment. Accordingly, it was said, unless the case could be left to
the jury on the basis allowed by the trial judge, no case could be
prosecuted. While the evidence as given by J. at the trial suggests that
there may be practical difficulties in particularizing or identifying
one or all of the offences charged, it is not obvious that it is wholly
impossible so to do. Whatever practical difficulties may exist, those
difficulties (even if amounting to an impossibility) cannot justify a
criminal trial attended with such uncertainty that the verdict or
verdicts must also be seen as uncertain.
Special leave to appeal should be granted. The
appeal should be allowed and the convictions quashed. Because there may
be some means of overcoming some or all of the difficulties which
attended the trial of the applicant, a new trial should be ordered.
...........................................................................
..................................................................
...........................................................................
The Principle of A Fair Trial Requires Fairness At ALL Stages of the Trial, Including Sentencing.
"Proportionality of a
sentence is also a factor in deciding whether a sentence is inhuman. We
consider that the Constitutional Court of South Africa aptly addressed
the issue of proportionality in the case of State v Makwanyane 1995 (3) SA 391 where it said at page 433, paragraph 94-
"Proportionality is an
ingredient to be taken into account in deciding whether a penalty is
cruel, inhuman and degrading…; factors such as the enormity and
irredeemable character of the death sentence in circumstances where
neither error nor arbitrariness can be excluded, the expense and
difficulty of addressing the disparity which exists between accused
persons facing similar charges… are also factors that can and should be
taken into account in dealing with the issue.".
The ground of fair trial
First, we conclude that "trial" of a person
accused of crime extends to sentencing where the person is convicted of
the crime. Therefore, the principle of "fair trial" requires fairness of
the trial at all stages of the trial including sentencing
"Proportionality is an
ingredient to be taken into account in deciding whether a penalty is
cruel, inhuman and degrading…; factors such as the enormity and
irredeemable character of the death sentence in circumstances where
neither error nor arbitrariness can be excluded, the expense and
difficulty of addressing the disparity which exists between accused
persons facing similar charges… are also factors that can and should be
taken into account in dealing with the issue.".
The ground of fair trial
First, we conclude that "trial" of a person
accused of crime extends to sentencing where the person is convicted of
the crime. Therefore, the principle of "fair trial" requires fairness of
the trial at all stages of the trial including sentencingFull Decision
IN THE HIGH COURT OF MLAWI
PRINCIPAL REGISTRY
CONSTITUTIONAL CASE NO. 12 OF 2005
BETWEEN:
Francis Kafantayeni …………………………….…………….1st Plaintiff
Edson Khwalala ………………………………………………2nd Plaintiff
Faison Mawomba Gama ……………………………………..3rd Plaintiff
Richard Chipoka ……………………………………………..4th Plaintiff
Tony Thobowa ………………………………………………..5th Plaintiff
Aron John ……………………………………………………..6th Plaintiff
AND
Attorney General ……………………………………………….Defendant
CORAM: Hon. Justice E.M. SINGINI, SC
Hon. Justice F.E. KAPANDA
Hon. Justice M.L. KAMWAMBE
Counsel for the Plaintiffs: Mr. Kasambara, Mr. Mwakhwawa,
Mr. Chalamanda and Ms. Chibisa
Counsel for the Defendant: Hon. Justice Ansah, Attorney General,
Ms. Kayuni, Mr. Chidzonde and
Ms. Ng’ong’ola
Mr. Kapindu, of counsel for the Malawi Human Rights Commission,
appearing as friend of the court
Mr. Jere, Official Interpreter
→
JUDGMENT
The action in these proceedings was commenced by one
Francis Kafantayeni as plaintiff against the Attorney General as
defendant. The plaintiff is a convict for the offence of murder and is
under the sentence of death.
→
→
It was on 11th August, 2002, when the plaintiff,
as accused, was tried for murder in the High Court sitting at Thyolo
before Chiudza Banda, J and a jury. He was represented by counsel. The
State’s case against the plaintiff as accused was that he had tied up
his two year old stepson and buried him alive. He admitted that he had
killed his stepson, but in his defence he claimed to have been acting in
a state of temporary insanity induced by smoking Indian hemp. He was
convicted on the same day of the offence of murder and sentenced,
according to law, to the mandatory death penalty.
→
→
On 21st September, 2005, the plaintiff took out an
originating summons in the High Court seeking a declaration on a point
of law that the mandatory death penalty is unconstitutional on several
grounds, as we have reproduced below. On the same day the learned Chief
Justice certified the proceedings for hearing by a panel of three High
Court Judges for adjudication over the constitutional point of law.
→
→
By a consent order for joinder of parties issued on
9th August, 2006, the plaintiff was joined by five others, namely, Edson
Khwalala, Faison Mawomba Gama, Richard Chikopa, Tony Thobowa and Aron
John who, on divers dates and in divers criminal proceedings in the High
Court of Malawi, were also convicted of the offence of murder and were
similarly sentenced to suffer the mandatory death penalty.
→
→
The plaintiffs are represented jointly by a team of
counsel. The court also allowed the Malawi Human Rights Commission to
appear in this action as friend of court and to be heard in support of
the action of the plaintiffs.
→
→
The single issue that is before the court in this
action is about the constitutionality of the mandatory death penalty for
the offence of murder. It is important to clarify that the issue before
the court is not about the death penalty as such, but rather about the
mandatory requirement of the death penalty for murder.
→
→
Counsel for the plaintiffs have submitted a wealth of
what is an impressive bundle of pleadings, containing case authorities
and international human rights instruments on the death penalty,
including regional human rights protocols, as well as determinations by
various international and regional human rights bodies. The Attorney
General, too, in pleadings meant to be in opposition to the action, has
made considerable submissions. The court is appreciative of the work
done by counsel on both sides as presented in their pleadings and
skeleton arguments. We heard the case in open court at the Principal
Registry in Blantyre on 30th October, 2006, and we took time to give our
judgement.
→
→
During hearing, however, the Attorney General,
Justice Dr. Jane Ansah, informed the court that the State would not
advance any position before the court but instead the State took a
neutral stand in the matter and would not address the court on any
points for determination by the court. As court we respected the stand
taken by the State but we indicated that we would determine the question
before us on its merits regardless of the neutral stand by the State.
Indeed, we have freely considered the merits of the opposing written
submissions by the Attorney General as were filed in the pleadings.
→
→
The challenge by the plaintiffs of the
constitutionality of the mandatory death penalty is on four grounds.
They submit that the mandatory death penalty is unconstitutional
because-
→
→
" (a) it amounts to arbitrary deprivation of the
person’s life in violation of section 16 of the Constitution on the
right to life in that the mandatory imposition is without regard to the
circumstances of the crime and is thus arbitrary;
→
→
(b) it is inhuman and degrading in violation of section 19(3) of
the Constitution which prohibits torture of any kind or cruel, inhuman and degrading treatment or punishment;
(c) it violates section 42(2)(f) of the Constitution on the right to a fair trial in denying judicial discretion on sentencing;
(d) it violates the principle of separation of powers of State enshrined in the Constitution.".
→
→
The court has found that there is a large volume of
judicial decisions from a wide range of comparable jurisdictions on the
question of the constitutionality of the mandatory death sentence. In
most of the decided cases from comparable jurisdictions the question has
been the same as the one before this court and it has consistently been
a constitutional point of law. Although there is discernible
consistency declaring the mandatory death sentence to be
unconstitutional, we wish to observe that several court decisions have
been characterised by dissenting opinions.
→
→
In Malawi, the death penalty is sanctioned by the
Constitution and this has been done in relation to the right to life
guaranteed by section 16 of the Constitution. The saving clause for the
death penalty is in the proviso to section 16. We reproduce the wording
of section 16, thus-
→
→
"The right 16. Every person has the right to life and no person shall be
to life arbitrarily deprived of his or her life:
→
→
Provided that the execution of the death sentence
imposed by a competent court on a person in respect of a criminal
offence under the laws of Malawi of which he or she has been convicted
shall not be regarded as arbitrary deprivation of his or her right to
life.".
→
→
In our judgment, what the proviso to section 16 saves
is the death penalty. We do not find that the wording necessarily also
saves the mandatory requirement of the death penalty. We therefore find
that it is open to us to examine and decide the question of the
constitutionality of the mandatory requirement of the death penalty for
the offence of murder.
In Malawi, the offence of murder is provided for under the Penal Code in sections 209 and 210, as follows-
→
→
"Murder 209 Any person who of malice aforethought causes the death of
another person by an unlawful act or omission shall be guilty of murder.
→
→
Punishment for murder - 210. Any person convicted of murder shall be sentenced to death.".
→
→
The wording of section 210 of the Penal Code makes
the death penalty mandatory upon conviction for murder and removes any
judicial discretion as to sentencing.
→
→
We recognise that common law jurisprudence over the
offence of murder and over the death punishment for the offence has
evolved over a long period through decided cases. Specifically as to the
question about the constitutionality of the mandatory death penalty, we
acknowledge the leading authority at present of the decision in the
recent case of Reyes v The Queen [2002] 2AC, 235, a Privy Council
decision in an appeal from Belize in the Caribbean in which one of the
questions before the court challenged the constitutionality of the
mandatory death penalty on the ground that it infringed the protection
against subjection to inhuman or degrading punishment enshrined in
section 5 of the Constitution of Belize. We note that the constitutional
guarantee in section 19 of the Malawi Constitution is to the same
effect and of the same wording as in section 5 of the Constitution of
Belize.
→
→
The decision in Reyes v The Queen, while a
judicial decision, is also a whole treatise on the prevailing common law
jurisprudence on the question of the constitutionality of the mandatory
requirement of the death penalty; and we acknowledge that the decision
in Reyes v Queen has been a valuable leading source for us in
reaching our own decision in the matter before us in which we are having
to determine precisely the same issue.
→
→
Of the four grounds submitted by the plaintiffs, we
have reached our unanimous decision upon consideration of two of those
grounds: the right of every person under section 19 of the Constitution
to protection against being subjected to inhuman and degrading treatment
or punishment; and the right of an accused person under section
42(2)(f) of the Constitution to a fair trial. We are content therefore
not to address the other two grounds argued by counsel. However, we have
gone further to also give consideration to the right, under section
41(2) of the Constitution, of access to justice, which extends to access
to a court with jurisdiction for final settlement of legal issues.
→
→
The ground of inhuman and degrading treatment or punishment
→
→
Section 19 of the Malawi Constitution, in subsection
(1), provides that the dignity of all persons shall be inviolable, and
in subsection (3) guarantees every person the right against being
subjected to torture of any kind or to cruel, inhuman and degrading
treatment or punishment. Although not cited by counsel in
submissions on behalf of the plaintiffs, and indeed often overlooked
even in the case authorities that we have examined from comparable
jurisdictions, we have considered that the protection in subsection (2)
of section 19 of the Malawi Constitution also has application to this
head in providing that "In any judicial proceedings or in any other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed".
→
→
As was stated in the Reyes decision at page 241, paragraphs 10 and11-
"Under the common law of England there was one
sentence only which could be judicially pronounced upon a defendant
convicted of murder and that was the sentence of death. This simple and
undiscriminating rule was introduced into many states now independent
but once colonies of the Crown.
…→
"It has however been recognised for many years that
the crime of murder embraces a range of offences of widely varying
degrees of criminal culpability. It covers at one extreme the sadistic
murder of a child for sexual gratification, a terrorist atrocity causing
multiple deaths or a contract killing, at the other the mercy killing
of a loved one suffering unbearable pain in terminal illness or killing
which results from an excessive response to a perceived threat. All
killings which satisfy the definition of murder are by no means equally
heinous.".
→
→
The decision in Reyes also cites with approval
several other authoritative commentaries disapproving of the mandatory
imposition of the death penalty. For example, in England a House of
Lords Select Committee on Murder and Life Imprisonment in 1989
considered that "murders differed so greatly from each other that it was
wrong that they should attract the same punishment".
→
→
In our judgment, we agree with the reasoning in some of the submissions and passages, cited with approval in the Reyes
decision, first, at page 247 paragraph 29 that "a sentencing regime
which imposes a mandatory sentence of death on all murderers, or
murderers within specified categories, is inhuman and degrading because
it requires sentence of death, with all the consequences such a sentence
must have for the individual defendant, to be passed without any
opportunity for the defendant to show why such sentence should be
mitigated, without any consideration of the detailed facts of the
particular case or the personal history and circumstances of the
offender and in cases where such a sentence might be wholly
disproportionate to the defendant’s criminal culpability."
→
→
Another passage found at page 249 of the Reyes decision, attributed to Byron CJ sitting in consolidated appeals of Spence v The Queen and Hughes v The Queen
(unreported) 2 April 2001 (Criminal Appeals Nos. 20 of 1998 and 14 of
1997) in the Eastern Caribbean Court of Appeal, puts the issue of the
constitutionality of the mandatory death penalty more succinctly. The
two cases originated from two Caribbean states, the state of Saint
Vincent and the Grenadines and the state of Saint Lucia, which have a
similar clause in their respective Constitutions, section 5, to the same
effect and wording as section 19(3) in the Malawi Constitution. Byron
CJ states: "The issue here is whether it is inhuman to impose a sentence
of death without considering mitigating circumstances of the commission
of the offence and the offender; whether the dignity of humanity is
ignored if this final and irrevocable sentence is imposed without the
individual having any chance to mitigate; whether the lawful punishment
of death should only be imposed after there is a judicial consideration
of the mitigating factors relative to the offence itself and the
offender".
→
→
Based on that phrasing of the issue, Byron, CJ,
concludes, in part, that "the requirement of humanity in our
Constitution does impose a duty for consideration of the individual
circumstances of the offence and the offender before a sentence of death
could be imposed in accordance with its provisions.".
→
→
Saunders, JA, in the same decision agreed with Byron,
CJ, and held that "the dignity of human life is reduced by a law that
compels a court to impose death by hanging indiscriminately upon all
convicted of murder, granting to none an opportunity to have the
individual circumstances of his case considered by the court that is to
pronounce the sentence". He went further to hold that-
" It is and has always been considered a vital
precept of just penal laws that the punishment should fit the crime. If
the death penalty is appropriate for the worst cases of homicide, then
it must surely be excessive punishment for the offender convicted of
murder whose case is far removed from the worst case. It is my view that
where punishment so excessive, so disproportionate must be
imposed on such a person courts of law are justified in concluding that
the law requiring the imposition of the same is inhuman. … I am driven
firmly to one conclusion. To the extent that the respective sections of
the Criminal Codes of the two countries are interpreted as imposing the
mandatory death penalty those sections are in violation of section 5 of
the Constitutions".
→
→
In those consolidated appeals, the majority decision
of the court declared the mandatory requirement of the death penalty
unconstitutional for being inhuman treatment or punishment by not
allowing for individualised consideration of the offender and the
commission of the offence.
→
→
Similarly, in the Reyes case the Privy Council
by unanimous decision held that the mandatory requirement of the death
penalty was inhuman treatment or punishment and in violation of section 7
of the Constitution of Belize on the right against the subjection to
inhuman and degrading treatment.
→
→
Proportionality of a sentence is also a factor in
deciding whether a sentence is inhuman. We consider that the
Constitutional Court of South Africa aptly addressed the issue of
proportionality in the case of State v Makwanyane 1995 (3) SA 391 where it said at page 433, paragraph 94-
→
→
"Proportionality is an ingredient to be taken into
account in deciding whether a penalty is cruel, inhuman and degrading…;
factors such as the enormity and irredeemable character of the death
sentence in circumstances where neither error nor arbitrariness can be
excluded, the expense and difficulty of addressing the disparity which
exists between accused persons facing similar charges… are also factors
that can and should be taken into account in dealing with the issue.".
→
→
We consider the reasoning in those passages
persuasive and to be compelling jurisprudence on the position that the
mandatory death penalty is unconstitutional on the ground of being
inhuman treatment or punishment.
→
→
Additionally, in our own consideration we find for
example that where a group of persons commit murder and are tried as
co-accused there is sometimes bound to be varying degrees of culpability
among them in their involvement in the commission of the offence
warranting differentiation in the punishment that may be imposed on each
individual offender; and the mandatory death penalty under section 210
of the Penal Code would not permit of individualised sentencing, unless
the court were to engage in superficially reducing the offence to one of
manslaughter or some lesser offence with respect to a co-accused with
lesser culpability, and obviously such approach would betray justice in
the matter.
→
→
In our judgment we have reached the same conclusion as in the Reyes
decision and in the other passages we have cited, and we hold that the
mandatory imposition of the death penalty for the offence of murder as
provided by section 210 of the Penal Code amounts to inhuman treatment
or punishment in its application.
→
→
The ground of fair trial
→
→
First, we conclude that "trial" of a person accused
of crime extends to sentencing where the person is convicted of the
crime. Therefore, the principle of "fair trial" requires fairness of the
trial at all stages of the trial including sentencing.
→
→
Counsel for the plaintiffs submit that the mandatory
death penalty as provided by section 210 of the Penal Code violates the
Constitution which in section 42(2)(f) guarantees the right of every
accused person to a fair trial in that the mandatory death penalty in
effect "prohibits the courts from determining the sentence for anyone
convicted of murder. Instead section 210 of the Penal Code requires a
sentence of death to be imposed without regard to the individual
circumstances of either the offence or the offender".
→
→
Under this heading of denial of fair trial, counsel
for the plaintiffs have cited in their support the provision in Article
14, paragraph 5, of the International Covenant on Civil and Political
Rights, to which Malawi is a State Party. We accept and recognise that
the Covenant forms part of the body of current norms of public
international law and in terms of section 11(2) of the Malawi
Constitution courts in Malawi are required to have regard to its
provisions in interpreting the Constitution. Paragraph 5 of Article 14
of the Covenant provides that-
→
→
"Everyone convicted of a crime shall have the right
to his conviction and sentence being reviewed by a higher tribunal
according to law.".
→
→
Counsel for the plaintiffs contend that the mandatory
death penalty under section 210 of the Penal Code violates this right
of a convicted person, citing a number of case authorities in support.
Notable among those is the case of Edwards v The Bahamas (Report
No. 48/01, 4th April 2001), decided by the Inter-American Commission on
Human Rights, which held that "By reason of its compulsory and automatic
application, a mandatory sentence cannot be the subject of an effective
review by a higher court. Once a mandatory sentence is imposed, all
that remains for a higher court to review is whether the defendant was
found guilty of the crime for which the sentence is mandated".
→
→
We agree with counsel that the effect of the
mandatory death sentence under section 210 of the Malawi Penal Code for
the crime of murder is to deny the accused as a convicted person the
right to have his or her sentence reviewed by a higher court than the
court that imposed the sentence; and we hold that this is a violation of
the right to a fair trial which in our judgment extends to sentencing.
→
The ground of the right of access to justice
→
→
In our judgment we also consider that the right of
access to justice guaranteed by section 41 of the Malawi Constitution
also has application in determining the issue of constitutionality of
the mandatory death penalty. Section 41, in subsection (2), states that-
→
→
"Every person shall have access to any court of law
or any other tribunal with jurisdiction for final settlement of legal
disputes.".
→
→
We affirm that issues of sentencing are legal issues
for judicial determination and are therefore within the purview of
section 41 (2) of the Constitution; and the mandatory death sentence
under section 210 of the Penal Code, by denying a person convicted of
murder the right of access on the sentence to the final court of appeal,
is in violation of section 41(2) of the Constitution. In regard to
death penalty, which is the ultimate punishment any person can suffer
for committing a crime, irrevocable as it is once carried out, we would
reject any notion that any restriction or limitation on the guarantee
under section 41(2) of the Constitution of the right of access to a
court of final settlement of legal issues, denying a person to be heard
in mitigation of sentence by such court, can be justified under section
44(2) of the Constitution as being reasonable or necessary in a
democratic society or to be in accord with international human rights
standards.
→
→
In the final analysis, we hold that the mandatory
requirement of the death sentence for the offence of murder as provided
by section 210 of the Penal Code is in violation of the constitutional
guarantees of rights under section 19 (1), (2), and (3) of the
Constitution on the protection of the dignity of all persons as being
inviolable, the requirement to have regard to the dignity of every human
being and the protection of every person against inhuman treatment or
punishment; the right of an accused person to a fair trial under section
42(2)(f) of the Constitution; and the right of access to justice, in
particular the right of access to the court of final settlement of legal
issues under section 41(2) of the Constitution.
→
→
Pursuant to section 5 of the Constitution, we declare
section 210 of the Penal Code to be invalid to the extent of the
mandatory requirement of the death sentence for the offence of murder.
For the removal of doubt, we state that our declaration does not outlaw
the death penalty for the offence of murder, but only the mandatory
requirement of the death penalty for that offence. The effect of our
decision is to bring judicial discretion into sentencing for the offence
of murder, so that the offender shall be liable to be sentenced to
death only as the maximum punishment.
The action of the plaintiffs therefore succeeds and we set aside the death sentence imposed on each of the plaintiffs.
→
→
We make a consequential order of remedy under section
46 (3) of the Constitution for each of the plaintiffs to be brought
once more before the High Court for a Judge to pass such individual
sentence on the individual offender as may be appropriate, having heard
or received such evidence or submissions as may be presented or made to
the Judge in regard to the individual offender and the circumstances of
the offence.
→
PRONOUNCED in open court at the Principal Registry in Blantyre this 27th day of April, 2007.
……………………………………………………...
HONOURABLE JUSTICE E.M. SINGINI, SC
……………………………………………………..
HONOURABLE JUSTICE F.E. KAPANDA
………………………………………………………
HONOURABLE JUSTICE M.L. KAMWAMBE
R V D (199&) SA Supreme Court - Special
Note - See Highlighted Section
Supreme Court of South Australia Decisions
R v D(appellant) No. SCCRM-97-109 Judgment No. 6350 Number of pages - 17 Criminal law (1997) 69 SASR 413 [1997] SASC 6350 (12 September 1997)
IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA
DOYLE CJ, MILLHOUSE AND BLEBY JJ
Criminal law – jurisdiction, practice and procedure - judgment and punishment - appeal against sentence - child sexual abuse - offence of persistent sexual abuse - proper approach to be taken to sentencing under s74(7) - consideration of appropriate standard of punishment – whether sentence excessive - appeal allowed - consideration of whether warning should be given before any departure made from sentencing standard generally imposed for particular offence. Criminal Law Consolidation Act, 1935s74, referred to.
R v Reiner (1974) 8 SASR 102; R v Lewis (1993) 40 SASR 582; R v Lane (1995) 80 ACrimR 208; R v Freer (unreported, Court of Criminal Appeal, 20 March 1997, No.6087); R v Benier (unreported, Court of Criminal Appeal, 13 March 1997, No.6077); R v Sangricoli (unreported, Court of Criminal Appeal, 18 March 1997, No.6079); Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108; R v Lewfatt [1993] NTSC 88 ; (1993) 70 ACrimR 66, considered.
DOYLE CJ
Sentencing for persistent sexual abuse of a child
To decide whether the sentence in the present case is excessive, it is first necessary to consider the approach
that should be taken to sentencing under s74(7). That is the provision under which the judge sentenced the appellant.
Counsel for the Director of Public Prosecutions made the point that under this provision the maximum sentence is imprisonment for life. She argued that in the present case that was in truth the maximum against which the punishment for the appellant was to be fixed. Her argument was that the court had before it not just two or three representative counts, but in effect multiple counts which attracted respectively maximum sentences of 8 years' and 7 years' imprisonment. She submitted that when one adds up the maximum sentences which the individual offences attracted, the total was such that the court was in reality in the present case contemplating imprisonment for life as the relevant maximum. Thus, she did not deny that the statutory maxima fixed for the particular offences committed were relevant. Her point was that a distinction was to be drawn between a case in which a court sentences for, say, three so-called representative counts, while taking into account the fact that those three offences are part of a continuing course of conduct, and a case under s74 where the court is in fact sentencing for all of the components of the course of conduct.
If that submission is accepted it means that a sentence imposed under s74 is likely to be heavier than a sentence for the same course of conduct if the offender is convicted on a number of counts charged under particular sections
of the Act , but sentenced on the basis that those counts are part of a course of conduct involving similar behaviour.
In that context counsel referred to the well known distinction between the procedure to be adopted when it is desired that offences not charged should be taken into account, and the distinct practice of considering the commission of crimes, not asked to be taken into account, when determining whether or not to extend leniency: see, for example, R v Reiner (1974) 8 SASR 102 at 105 Bray CJ.
In effect, as I understand her submission, it was the submission of counsel for the Director that all offences that are part of the course of conduct were to be taken into account, and that the relevant maximum punishment is arrived at by accumulating the maximum punishment attributable to each separate offence. On that basis, she argued, the maximum in the present case was a number of years that exceeded the likely life expectancy of the appellant.
On the other hand, counsel for the appellant argued that s74(7) did not authorise or require the court to depart from the approach that it takes when sentencing a person for what are often called representative counts. The term
is well known, and is to be found in a number of decisions. However, as is equally well known, the term is a convenient if somewhat inaccurate term. As applied these days it refers to the approach to which I referred when making reference to R v Reiner (supra). That is, the court sentences an offender in respect of a relatively small number of offences, but does so on the basis that those offences were not isolated offences, but part of a course of conduct involving similar behaviour. On that basis, the scope for extending leniency is reduced. The uncharged offences that are part of the course of conduct cannot be used to increase the potential maximum punishment, which maximum remains the accumulation of the maxima attracted by the chargedoffences. The only way in which the uncharged offences can be used is to rely upon them to refuse to extend the leniency that might be extended if the offences for which the offender is convicted were isolated offences. As Bray CJ said in R v Reiner (supra at 105), the distinction may seem metaphysical, but as he also said it is "... a recognised and time honoured distinction for all that." The process of sentencing for a limited number of offences, on the basis that they are part of a wider course of conduct, has been regarded by this court in the past as enabling the court adequately to take account of the seriousness of a course of conduct as a whole. The practice is well established.
Does s74(7) have the effect that the sentence imposed under that provision would normally be heavier than it would be under the existing practice, because, as with sentences actually taken into account, the available maximum has increased?
In my opinion the terms of s74 suggest that it is a provision concerned with certain procedural difficulties presented by cases involving multiple sexual offences against children. In such cases it is often difficult to identify the separate offences with sufficient particularity, in terms of time and circumstance, to meet the usual requirement of the law that adequate particulars be given. Subsection (4) is directed at that very problem.
Subsections (8) and (9) provide the protection necessary to a person who is convicted on the basis of a charge
laid under s74.
There is nothing in the terms of s74 , apart from subsection (7), to suggest that Parliament intended that the courts should change the approach that they have taken when sentencing in respect of a course of conduct. The terms of
subsection (7), and the reference to life imprisonment in particular, are explicable on the basis that some of the sexual offences with which s74 deals attract life imprisonment.
One would not expect a provision, which appears to be directed at what might be called procedural problems, to be intended to require a new approach to sentencing. If the Director's submission is accepted, it would seem to follow that a person charged with three separate offences, and sentenced on the basis that they were part of a course of conduct involving similar behaviour, might well receive a lesser penalty than a person charged with persistent sexual abuse in respect of the same course of conduct. Of course, in subsection (7) Parliament has referred to "... a term of imprisonment proportionate to the seriousness of the offender's conduct ...". But, in the context of s74 , I incline to the view that that is a reference to the seriousness of the conduct as it would be assessed by the court if so-calledrepresentative counts were laid in accordance with established practice, rather than to a new and different concept of seriousness.
The view which I favour gets some support from the Second Reading Speech on the amendment that introduced s74. In the course of that speech (Hansard, House of Assembly, 4 May 1994, p1005) the Minister said that the amendment was introduced to deal with the problem of adequacy of particulars "... where the allegations involve a long period of multiple offending." It is proper to have regard to the speech to identify the purpose for which the law was changed,
and that purpose appears to have nothing to do with sentences to be imposed. Of course, the words of s74(7) remain. As counsel for the Director pointed out, a person convicted under HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74 is convicted on a charge which "...subsumes all sexual offences committed by the same person against the same child during the period of the alleged sexual abuse ...": HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74(8). There is an obvious analogy to the process of taking uncharged offences into account.
Nevertheless, for the reasons that I have indicated, I have come to the conclusion that the reference in subsection (7) to the "seriousness of the offender's conduct" should be taken as a reference to the seriousness of that conduct as it would have been assessed by the court, in accordance with current practice, when dealing with distinct offences that are punished on the basis that they are part of a course of conduct involving like offences. Inshort, I do not consider that s74 has brought about a change in the approach to the sentencing of offenders in such cases.
In my opinion, the approach to be taken under s74 , in a case like the present one, is this. The court should identify the different offences involved and the maximum punishment that they attract. In the present case the offences are unlawful sexual intercourse with a child above the age of twelve years, that attracts a maximum punishment of 7 years' imprisonment, and indecent assault on a child above the age of twelve years, that attracts a maximum punishment of 8 years' imprisonment. It is not necessary to identify the number of offences committed with any precision, although if that can be done readily, there is no reason why it should not be done. An approach which requires one to identify the number of offences with precision, would simply reintroduce the very problem at which s74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences,
as distinct from under s74 , and on the basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct.
In this way, the court will still have regard to the duration of the offending, the seriousness of the offences involved, and the frequency of the offending. But the court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima.
Of course, a person sentenced under s74 is protected against further charges in respect of the same child and the same period of offending: HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74(9). But, in practical terms, a person sentenced on an information alleging a number of representative counts had the same protection. In my experience it is unheard of for such a person to be charged later with further like offences in respect of the same period. Such a charge might well be stayed as an abuse of the court's process.
Having said all that, I should add that I do not consider it appropriate to, nor am I attempting to, establish exhaustive guidelines for the imposition of sentences under s74. I have confined myself to the particular issue that arises in this case. That is, whether one is to accumulate the statutory maximum penalties applicable to each offence which can be identified as having occurred during the relevant period.
There may be other difficulties that will emerge under s74. All I intend to decide at this stage is that the seriousness of the offender's conduct is encompassed by sentencing the offender as if the offender were convicted on what are called representative counts, under the practice that existed before s74 was enacted.
............
Note - See Highlighted Section
Supreme Court of South Australia Decisions
R v D(appellant) No. SCCRM-97-109 Judgment No. 6350 Number of pages - 17 Criminal law (1997) 69 SASR 413 [1997] SASC 6350 (12 September 1997)
IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA
DOYLE CJ, MILLHOUSE AND BLEBY JJ
Criminal law – jurisdiction, practice and procedure - judgment and punishment - appeal against sentence - child sexual abuse - offence of persistent sexual abuse - proper approach to be taken to sentencing under s74(7) - consideration of appropriate standard of punishment – whether sentence excessive - appeal allowed - consideration of whether warning should be given before any departure made from sentencing standard generally imposed for particular offence. Criminal Law Consolidation Act, 1935s74, referred to.
R v Reiner (1974) 8 SASR 102; R v Lewis (1993) 40 SASR 582; R v Lane (1995) 80 ACrimR 208; R v Freer (unreported, Court of Criminal Appeal, 20 March 1997, No.6087); R v Benier (unreported, Court of Criminal Appeal, 13 March 1997, No.6077); R v Sangricoli (unreported, Court of Criminal Appeal, 18 March 1997, No.6079); Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108; R v Lewfatt [1993] NTSC 88 ; (1993) 70 ACrimR 66, considered.
DOYLE CJ
Sentencing for persistent sexual abuse of a child
To decide whether the sentence in the present case is excessive, it is first necessary to consider the approach
that should be taken to sentencing under s74(7). That is the provision under which the judge sentenced the appellant.
Counsel for the Director of Public Prosecutions made the point that under this provision the maximum sentence is imprisonment for life. She argued that in the present case that was in truth the maximum against which the punishment for the appellant was to be fixed. Her argument was that the court had before it not just two or three representative counts, but in effect multiple counts which attracted respectively maximum sentences of 8 years' and 7 years' imprisonment. She submitted that when one adds up the maximum sentences which the individual offences attracted, the total was such that the court was in reality in the present case contemplating imprisonment for life as the relevant maximum. Thus, she did not deny that the statutory maxima fixed for the particular offences committed were relevant. Her point was that a distinction was to be drawn between a case in which a court sentences for, say, three so-called representative counts, while taking into account the fact that those three offences are part of a continuing course of conduct, and a case under s74 where the court is in fact sentencing for all of the components of the course of conduct.
If that submission is accepted it means that a sentence imposed under s74 is likely to be heavier than a sentence for the same course of conduct if the offender is convicted on a number of counts charged under particular sections
of the Act , but sentenced on the basis that those counts are part of a course of conduct involving similar behaviour.
In that context counsel referred to the well known distinction between the procedure to be adopted when it is desired that offences not charged should be taken into account, and the distinct practice of considering the commission of crimes, not asked to be taken into account, when determining whether or not to extend leniency: see, for example, R v Reiner (1974) 8 SASR 102 at 105 Bray CJ.
In effect, as I understand her submission, it was the submission of counsel for the Director that all offences that are part of the course of conduct were to be taken into account, and that the relevant maximum punishment is arrived at by accumulating the maximum punishment attributable to each separate offence. On that basis, she argued, the maximum in the present case was a number of years that exceeded the likely life expectancy of the appellant.
On the other hand, counsel for the appellant argued that s74(7) did not authorise or require the court to depart from the approach that it takes when sentencing a person for what are often called representative counts. The term
is well known, and is to be found in a number of decisions. However, as is equally well known, the term is a convenient if somewhat inaccurate term. As applied these days it refers to the approach to which I referred when making reference to R v Reiner (supra). That is, the court sentences an offender in respect of a relatively small number of offences, but does so on the basis that those offences were not isolated offences, but part of a course of conduct involving similar behaviour. On that basis, the scope for extending leniency is reduced. The uncharged offences that are part of the course of conduct cannot be used to increase the potential maximum punishment, which maximum remains the accumulation of the maxima attracted by the chargedoffences. The only way in which the uncharged offences can be used is to rely upon them to refuse to extend the leniency that might be extended if the offences for which the offender is convicted were isolated offences. As Bray CJ said in R v Reiner (supra at 105), the distinction may seem metaphysical, but as he also said it is "... a recognised and time honoured distinction for all that." The process of sentencing for a limited number of offences, on the basis that they are part of a wider course of conduct, has been regarded by this court in the past as enabling the court adequately to take account of the seriousness of a course of conduct as a whole. The practice is well established.
Does s74(7) have the effect that the sentence imposed under that provision would normally be heavier than it would be under the existing practice, because, as with sentences actually taken into account, the available maximum has increased?
In my opinion the terms of s74 suggest that it is a provision concerned with certain procedural difficulties presented by cases involving multiple sexual offences against children. In such cases it is often difficult to identify the separate offences with sufficient particularity, in terms of time and circumstance, to meet the usual requirement of the law that adequate particulars be given. Subsection (4) is directed at that very problem.
Subsections (8) and (9) provide the protection necessary to a person who is convicted on the basis of a charge
laid under s74.
There is nothing in the terms of s74 , apart from subsection (7), to suggest that Parliament intended that the courts should change the approach that they have taken when sentencing in respect of a course of conduct. The terms of
subsection (7), and the reference to life imprisonment in particular, are explicable on the basis that some of the sexual offences with which s74 deals attract life imprisonment.
One would not expect a provision, which appears to be directed at what might be called procedural problems, to be intended to require a new approach to sentencing. If the Director's submission is accepted, it would seem to follow that a person charged with three separate offences, and sentenced on the basis that they were part of a course of conduct involving similar behaviour, might well receive a lesser penalty than a person charged with persistent sexual abuse in respect of the same course of conduct. Of course, in subsection (7) Parliament has referred to "... a term of imprisonment proportionate to the seriousness of the offender's conduct ...". But, in the context of s74 , I incline to the view that that is a reference to the seriousness of the conduct as it would be assessed by the court if so-calledrepresentative counts were laid in accordance with established practice, rather than to a new and different concept of seriousness.
The view which I favour gets some support from the Second Reading Speech on the amendment that introduced s74. In the course of that speech (Hansard, House of Assembly, 4 May 1994, p1005) the Minister said that the amendment was introduced to deal with the problem of adequacy of particulars "... where the allegations involve a long period of multiple offending." It is proper to have regard to the speech to identify the purpose for which the law was changed,
and that purpose appears to have nothing to do with sentences to be imposed. Of course, the words of s74(7) remain. As counsel for the Director pointed out, a person convicted under HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74 is convicted on a charge which "...subsumes all sexual offences committed by the same person against the same child during the period of the alleged sexual abuse ...": HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74(8). There is an obvious analogy to the process of taking uncharged offences into account.
Nevertheless, for the reasons that I have indicated, I have come to the conclusion that the reference in subsection (7) to the "seriousness of the offender's conduct" should be taken as a reference to the seriousness of that conduct as it would have been assessed by the court, in accordance with current practice, when dealing with distinct offences that are punished on the basis that they are part of a course of conduct involving like offences. Inshort, I do not consider that s74 has brought about a change in the approach to the sentencing of offenders in such cases.
In my opinion, the approach to be taken under s74 , in a case like the present one, is this. The court should identify the different offences involved and the maximum punishment that they attract. In the present case the offences are unlawful sexual intercourse with a child above the age of twelve years, that attracts a maximum punishment of 7 years' imprisonment, and indecent assault on a child above the age of twelve years, that attracts a maximum punishment of 8 years' imprisonment. It is not necessary to identify the number of offences committed with any precision, although if that can be done readily, there is no reason why it should not be done. An approach which requires one to identify the number of offences with precision, would simply reintroduce the very problem at which s74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences,
as distinct from under s74 , and on the basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct.
In this way, the court will still have regard to the duration of the offending, the seriousness of the offences involved, and the frequency of the offending. But the court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima.
Of course, a person sentenced under s74 is protected against further charges in respect of the same child and the same period of offending: HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74(9). But, in practical terms, a person sentenced on an information alleging a number of representative counts had the same protection. In my experience it is unheard of for such a person to be charged later with further like offences in respect of the same period. Such a charge might well be stayed as an abuse of the court's process.
Having said all that, I should add that I do not consider it appropriate to, nor am I attempting to, establish exhaustive guidelines for the imposition of sentences under s74. I have confined myself to the particular issue that arises in this case. That is, whether one is to accumulate the statutory maximum penalties applicable to each offence which can be identified as having occurred during the relevant period.
There may be other difficulties that will emerge under s74. All I intend to decide at this stage is that the seriousness of the offender's conduct is encompassed by sentencing the offender as if the offender were convicted on what are called representative counts, under the practice that existed before s74 was enacted.
............
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