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Gans, J --- "Evidence Law under Victoria's Charter: Responsibilities and Remedies (Part 2)" [2008] UMelbLRS 10

Last Updated: 28 September 2009

Evidence law under Victoria’s Charter:
Responsibilities and remedies – Part II

Jeremy Gans*

An article published in the previous issue of this journal argued that gaps in
the rights promoted by Victoria’s Charter of Human Rights and Responsibili-
ties will limit the latter’s utility in effecting reform of Victorian evidence law.
This article finds gaps in the Charter’s operative provisions that further limit its
impact on Victoria’s new evidence statute and its application in the courts.
The gaps identified include the exemption of courts and tribunals acting
non-administratively, the limitations of the Charter’s remedies provision and
the weakness of the regime for promoting a human rights dialogue, especially
in light of the drive towards uniformity of Australian evidence law.

INTRODUCTION
Victoria’s Charter of Human Rights and Responsibilities Act (2006) (the Charter) is the first human rights statute to apply to an Australian jurisdiction that is fully responsible for its law of evidence.1 An earlier article, published in the previous issue of this journal, examined the fit between the rights promoted by Victoria’s Charter and the goals of evidence law, which has long been associated with the protection of rights. However, the rights in Pt 2 of the Charter are not self-enforcing, but rather depend on the Charter’s application and operative provisions, mostly contained in Pt 3 of the Charter. This article considers the fit between those provisions and Victoria’s evidence law.

The Charter sets out three main ways for human rights to be promoted within Victoria’s legal
system:

• a regime for “scrutiny of new legislation” requiring that bills be accompanied by a “statement of compatibility”, setting out how a bill is or is not compatible with human rights, and that the Scrutiny of Acts and Regulations Committee report on any incompatibility with Charter rights;2

• a regime for “interpretation of laws”, requiring that Victorian statutes be interpreted compatibly with human rights and giving the Supreme Court a power to make a declaration when that is not possible;3 and

• a regime for “obligations on public authorities”, requiring that public authorities act compatibly with and give proper consideration to human rights.4

That the rights promoted by the Charter have legal effect only through these operative provisions is fundamental to understanding the statute, which aims to promote rights without either infringing parliamentary sovereignty or causing a proliferation of litigation.
The consequences for the limited operation of the Charter on Victoria’s present law of evidence can be readily seen.

* Associate Professor, Melbourne Law School, University of Melbourne. A draft of this article was presented at the Evidence, Criminal Justice and Adjudication Colloquium, Faculty of Law, University of New South Wales, Sydney (21 April 2007).
1 Australia’s first human rights statute, the Human Rights Act 2004 (ACT), does not affect most of the Australian Capital Territory’s (ACT) evidence law, which is presently contained primarily in a Commonwealth statute, the Evidence Act 2005 (Cth), and hence is exempt from the ACT law’s scrutiny, interpretation and declaration provisions.
2 Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), Pt 3, Div 1, ss 28, 30. See also the requirement for a “human rights certificate” to be issued by the responsible minister for a “proposed statutory rule” and for the Scrutiny of Acts and Regulations Committee to review the compatibility of all regulations with human rights: Charter, ss 12A and 21(1)(ha); Subordinate Legislation Act 1994 (Vic) (consequential amendments of the Charter, see s 47 and Sch, cl 7). 3 Charter, Pt 3, Div 2, ss 32, 36.
4 Charter, Pt 3, Div 3, s 38.
First, the scrutiny regime applies only to future changes to the law.5 The only non-judicial
scrutiny of existing law (including the current law of evidence) that flows from the Charter is a
provision for the Victorian Equal Opportunity and Human Rights Commission to “review the effect
of” Victorian laws “on human rights”; however, such reviews can only occur “when requested by the
Attorney-General”.6

Secondly, the interpretation regime is for statutory provisions only.7 So, the common law of evidence – which is presently the bulk of Victoria’s evidence law – will not be affected. Moreover, the Supreme Court has no jurisdiction to declare that existing rules of the common law – or new common law rules announced, say, by the High Court of Australia – are incompatible with human rights.

Thirdly, the obligations regime is subject to a significant statutory exception. It:

does not apply if, as a result of a statutory provision or a provision made by or under an Act of the

Commonwealth or otherwise under law, the public authority could not reasonably have acted differently

or made a different decision.8

This provision means that the Charter is actually the least important law in Victoria, coming second to every other law, whether Victorian or interstate and whether statutory or not. In particular, it means that the obligations regime has little application in closely regulated contexts. One such context may be decisions about the admissibility of evidence, because the fundamental rule of evidence law is that all relevant evidence is admissible unless rendered inadmissible by a rule of evidence.9 Outside the confines of a rule on inadmissibility, or within the confines of relatively rigid exclusionary rules (like the hearsay rule), there is no discretion, and hence no room for the Charter’s obligations regime to operate. However, more flexible exclusionary rules (such as the common law’s Christie discretion to exclude prejudicial evidence) may, in theory at least, be subject to the constraints of the obligations
regime.10

In short, the direct effect of the Charter on evidence law is limited to how Parliament will
scrutinise future evidence law statutes, how all evidence law statutes will be interpreted and how
public authorities can operate in those areas where the law of evidence allows flexibility. These
limitations of course reflect the scope of the Victorian Government’s preferred model for the
protection of human rights.

However, recent developments have changed this picture somewhat. In September 2008, Victoria’s Parliament passed a comprehensive new evidence law statute, the Evidence Act 2008 (Vic), modelled on the uniform evidence law provisions introduced in four other Australian jurisdictions (and applicable in a fifth).11 The new statute was subject to the Charter’s scrutiny regime and, once it

5 Charter, s 28(1), referring to the introduction of a bill. Note that the Scrutiny of Acts and Regulations Committee can review some Acts, but only when they were eligible for scrutiny as bills but were not scrutinised: see Parliamentary Committees Act 2003 (Vic), s 17(c). Query whether the scrutiny regime applies to those parts of the law that re-enact existing statutes or the common law; cf the “statement of compatibility” of the Crimes (DNA Databases) Amendment Bill 2007 (Vic) in Victoria, Legislative Assembly, Parliamentary Debates (2 May 2007) pp 1300-1302, characterising the Bill as “streamlining” existing arrangements and assessing its impact only on that basis.
6 Charter, s 41(b).
7 Charter, s 32(1), referring to “all statutory provisions” (emphasis added); cf s 32(3)(b) on the impact of the interpretation regime on subordinate instruments. Note that the definition of statutory provisions is limited to laws enacted by the Victorian Parliament or subordinate provisions passed under such a law, possibly excluding other documents given the force of law by a Victorian statute (eg the national gas legislation scheme). Note that the uniform evidence legislation consists of separately enacted statutes, rather than a head jurisdiction statute given the force of law elsewhere.
8 Charter, s 38(2).
9 Compare Evidence Act 2008 (Vic), ss 55, 56.
10 For the major United Kingdom authority on a similar statutory defence, see Doherty v Birmingham City Council [2007] EWCA Crim 2157; [2008] WLR 636 at [39]- [40], [120], [153].
11 Evidence Act 1995 (Cth), applicable in the Australian Capital Territory; Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2004 (Norfolk Island). See also the somewhat similar Evidence Act 2006 (NZ).
becomes operational in 2010, will be subject to the Charter’s interpretation regime. The new statute
replaces many strict common law rules with flexible discretions, potentially leaving more room for the
Charter’s obligations mandate to operate.

Nevertheless, the Charter’s legal effect is subject to a number of more subtle constraints. This
article examines, in turn, the exemption of courts (in many circumstances) from the Charter’s
obligations mandate, the barriers to applying the Charter in legal proceedings, and the amenability of
evidence law to the Charter’s vaunted human rights dialogue. It concludes that the true impact of the
Charter on the law of evidence may be slim indeed.

JUDICIAL FACT-FINDING: THE RESPONSIBILITY FOR RIGHTS

While much of the law of Victoria is directed towards individuals and agencies, the law of evidence is
directed mainly towards courts and (to a lesser extent) tribunals. Everyone (people and organisations
alike) routinely draws inferences from hearsay and opinion, or patterns of behaviour, or someone’s
apparent credibility, and they do so quite legally; however, evidence law stops courts (and some
tribunals) from doing those things unless particular preconditions are satisfied.
The major purpose of these constraints on courts is to promote the accuracy of fact-finding, a goal
that has a close connection with a major Charter right:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the

charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair

and public hearing.12

Much of modern evidence law is devoted to protecting criminal defendants from disadvantage in
comparison to the much more powerful state agencies that prosecute them, a concern that is promoted
especially by s 25 of the Charter, which sets out rights and minimum guarantees for persons who have
become the subject of a criminal charge, the traditional starting point of criminal proceedings in the
State’s court system. Indeed, the last seven sections of rights in Pt 2 of the Charter are mainly, if not
exclusively, devoted to rights for people involved in court proceedings of one sort or another.

This court-focused rights protection makes it all the more startling that the Charter’s obligations
regime, requiring that many acts and decisions be compatible with human rights, does not apply to
most things that courts do. The Charter’s obligations mandate binds all “public authorities”, a term
given a lengthy and broad definition to include government officers and employees, many statutory
agencies and even non-public entities or people that perform a public function on behalf of the State
of Victoria.13 Although courts and tribunals are not expressly named as public authorities (in contrast
to the equivalent provision in the United Kingdom’s (UK) Human Rights Act 1998), it is clear that
they fall within each of these definitional limbs. But they also fall within an exemption to the
definition.

Section 4(1)(i)-(k) of the Charter provides that the definition “does not include”:

(i) Parliament or a person exercising functions in connection with proceedings in Parliament; or

(j) a court or tribunal except when it is acting in an administrative capacity; or

(k) an entity declared by the regulations not to be a public authority for the purposes of this Charter.

The first of these exemptions preserves nothing less than the sovereignty of Parliament, while the
principle behind the last is not apparent. (For the first year of the Charter’s full operation, the State’s
three parole boards have been exempted for reasons that have not been publicly explained to date.)14
As will be seen, the middle exemption, which applies only to courts and tribunals,15 has a number of
potential rationales in principle, none of which are satisfactory.

12 Charter, s 24(1).
13 Charter, s 4.
14 Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 (Vic).
15 “Court” is defined in s 3 of the Charter as the Supreme Court, County Court, Magistrates’ Court and Children’s Court. “Tribunal” is not defined, see the Mental Health Review Board of Victoria Statement of Reasons No 09-003 [2008] VHMRB 1 at [137].
The middle exemption has had a significant – and disturbing – application in two cases to date. In
Victoria’s first major Charter decision, gangster Carl Williams sought an adjournment of his murder
trial to allow him to seek a lawyer of his choice, pursuant to s 25(2)(d)’s guarantee that he could
“defend himself ... through legal assistance chosen by him”. The Supreme Court held that even if the
Charter had applied to Williams’ trial, the obligations regime did not apply to a court’s decision to fix
or adjourn a trial date, as such a decision “is discretionary and ... in determining those matters a court
must act judicially and balance a number of factors”.16 More recently, Victoria’s Mental Health
Review Board held that it was not bound by the Charter in respect of a decision to adjourn a
statute-mandated review of an involuntary treatment order, as such decisions are made in a
“quasi-judicial” capacity as a tribunal. Whatever might be said of the merits of either of these claims,
the fact that each decision must be made judicially is surely a bizarre basis for rejecting the
applicability of an obligation to act compatibly with and give proper consideration to human rights.

These two matters – both of which involved a dispute about a mere adjournment – are just the tip
of the iceberg. While there is a view that many of the determinative functions of tribunals can be
regarded as “administrative”,17 it is clear that most of the decisions made by courts, including virtually
all rulings about the admissibility and weight of evidence, will be exempt from the Charter’s
obligations mandate. Under the analysis of King J in R v Williams [2007] VSC 2; (2007) 16 VR 168 at [50], any
decision that involves a judicial balancing of multiple factors may properly be classified as judicial.18
A more recent analysis ties the distinction to federal constitutional jurisprudence concerning the
separation of powers.19 A note to s 4(1)(j) of the Charter lists the following matters as administrative:

Note Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a

court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative

capacity when for example, listing cases or adopting practices and procedures.

However, the Charter’s Explanatory Memorandum describes the exemption as covering a court’s
judicial and “quasi-judicial” functions; the latter may well include committals.20 On any analysis,
most of the decisions made at a trial, from pre-trial rulings to the verdict, will be within the
exemption. Notably, virtually all decisions applying the law of evidence will be exempt, including the
many discretionary decisions that would otherwise be potentially caught by the Charter’s obligations
mandate.

As an example, consider the complex rules that govern when defendants can be cross-examined
on their character, potentially allowing an otherwise inadmissible criminal record to be revealed to the
jury.21 In Victoria, as elsewhere, there are long-standing statutory provisions that authorise a court to
permit such cross-examination if the defence attacks a prosecution witness’s character or raises the
defendant’s good character.22 These rules can be criticised for penalising someone simply for
defending themselves.23 A notorious example is Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, where a
rape defendant sought to explain why his fingerprint was on the complainant’s window by saying that
he had peered through the window one day to respond to an inquiry she had made about buying some
marijuana. The result of this “attack” on the complainant’s character was that the court allowed the
prosecution to adduce evidence of the defendant’s priors for break-and-enter (which might have been

16 Compare the note to s 4(1)(j), asserting that “listing” is an administrative capacity.
17 Bell K, The Role of VCAT in a Changing World: The President’s Review of VCAT, Speech delivered to the Law Institute of Victoria (4 September 2008), p 17, http://www.vcat.vic.gov.au/CA256902000FE154/Lookup/Media/$file/speech_the_role_of_
VCAT_in_a_changing_world.pdf, viewed 18 May 2007, stating: “It seems prudent, however, to assume that substantial aspects of VCAT’s functioning in this regard will come under the Charter.”
18 R v Williams [2007] VSC 2; (2007) 16 VR 168 at [50].
19 Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 at [119]- [127].
20 Compare R v Murphy [1985] HCA 50; (1985) 158 CLR 596 at 616.
21 See Gans J and Palmer A, Australian Principles of Evidence (2nd ed, Cavendish Publishing, 2004) pp 395-405.
22 Crimes Act 1958 (Vic), s 399(5) and (6); cf Criminal Evidence Act 1898 (UK).
23 Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 at 66-67.
treated by the jury as significant given that the alleged rape was during a break-and-enter).24 It could
be argued that this sequence of events, had they occurred in Victoria, is incompatible with a
defendant’s rights to a decision after a “fair” hearing by an “impartial” court25 and to “without
discrimination ... defend himself” and “have examined, witnesses against him”.26 However, because
the discretion to permit the cross-examination of the defendant is “a judicial one”,27 a Victorian court
would not be obliged to make its decision compatibly with the rights in the Charter.

The apparent origin of the exemption in s 4(1)(j) is in the report of the Human Rights
Consultation Committee (which not only “consulted” Victorians about whether they wanted human
rights protection but also drafted the statute):

[W]hile the Victorian courts may be bound by the Charter as institutions, there is a limited capacity for

them to be required to apply the rights in the development of the common law. This is because no one

State can change the “unified common law” of Australia. If Victoria attempted to do so, there is a real

risk that the High Court would strike down part of the Charter as being inconsistent with the Australian

Constitution.28

This analysis was drawn from remarks in a submission to the committee from the Australian
Human Rights Centre and has since received support in a lecture by Pamela Tate, Victoria’s
Solicitor-General (and legal adviser to the committee):

[A] consequence of the existence of a single common law is that it is most likely beyond the power of

a State Parliament to direct State courts to develop the common law by analogy with the values

protected in the Charter. The constraint that flows from this consequence is that the Charter could not,

and does not impose direct duties on State courts to develop the common law in a manner that would

intentionally entail the differential development of the common law in Victoria from its development

throughout the rest of Australia.29

Nevertheless, it is also an entirely speculative argument that is not based on any direct authority.30

It is true that the High Court held in the late 1990s that its decisions are the sole source of
Australian common law31 – and that three judges have questioned “’whether there are, or can be, rules
established by judicial decision that are to remain peculiar to a particular State”32 – but these remarks
were made in contexts where State statutes did not apply. Instead, the key judgments, including
notably a judgment on the common law legal professional privilege and its relationship with New
South Wales’s (NSW) evidence statute, are replete with statements affirming all Australian
legislatures’ capacity to abrogate the common law. These include specific references to how the
common law, including the law of evidence, can be influenced, developed by or even originate in
statutes.33 A holding that Australia’s common law limits the powers of its legislatures would seem to

24 Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45.
25 Charter, s 24(1).
26 Charter, s 25(2)(d) and (j).
27 Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 at 62.
28 Human Rights Consultation Committee, Rights, Responsibilities and Respect, Final Report (Department of Justice, 2005) p 59.
29 Tate P, “Protecting Human Rights in a Federation” [2007] MonashULawRw 8; (2008) 33 Mon LR 217 at 241.
30 Compare Perry J, International Human Rights and Domestic Law and Advocacy, Paper delivered at Human Rights Law Resource Centre Seminar, Melbourne (7 August 2006) pp 13-14, http://www.hrlrc.org.au/html/s02_article/default.asp?nav_cat_ id=139&nav_top_id=60&dsb=308 viewed 18 May 2007.
31 Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 112; Lange v Australian Broadcasting Corp [1997] HCA 25; (1997) 189 CLR 520 at 562-563; Lipohar v The Queen (1999) 200 CLR 485 at [24], [43]-[59], [179], but see Callinan J’s contrary view at [230]-[261]; cf Priestly L, “A Federal Common Law in Australia?” (1995) 6 PLR 221; Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [23], [91].
32 Lipohar v The Queen (1999) 200 CLR 485 at [49]; cf Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [23], holding that “[t]he fragmentation of the common law ... is unacceptable”.
33 Lipohar v The Queen (1999) 200 CLR 485 at [49], [57], [167]; Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [19]- [20], [28], [91], [144].
urn the hierarchy of legal authority in Australia on its head. Given that the Australian Constitution does not even mention the common law, this seems a leap too far, at least for the committee, if not the High Court.34

Even if Victoria’s Parliament, for some reason, cannot “change” or “develop” the common law
(or alter how the courts do so), it can still simply abrogate the common law within its jurisdiction.35 Indeed, Australian parliaments do so every time they pass statutes that address subject matter governed by the common law, a notable example being the uniform evidence legislation. Federal, State and Territory courts (and the High Court if it takes an interest) must routinely determine what is left (if anything) of the common law in each of Australia’s jurisdictions (including whether later developments of the common law by the High Court apply in that State) in light of the thousands of applicable statutes and regulations. To date, the High Court has never doubted the constitutionality of this arrangement.36 Any objection to Victoria’s courts performing the same role if Pt 2 of the Charter were expressed to override the common law would have to be based on an argument – not mentioned by the committee – that the human rights it contains are so broad and general that the courts
determination of what is left of the common law will be akin to legislating.37 While there is arguably a difference in degree between a comprehensive human rights statute and other legislation that occupies subject matter dealt with by the common law (eg acts interpretation statutes, anti- discrimination statutes, Torrens title statutes, evidence law statutes or sexual privacy statutes),38 it is not at all apparent that there is a qualitative difference that merits constitutional intervention.

Moreover, the committee’s recommended solution to these possible constitutional problems –
exempting all exercises of judicial and quasi-judicial39 power from the Charter’s obligations regime – goes far beyond what is necessary. Developing and applying the common law is only one of many judicial functions that courts and tribunals exercise. Putting aside the function of applying the s 32(1)’s rule on the interpretation of legislation,40 courts and tribunals must apply other rules of interpretation41 and make collateral legal and factual findings relevant to determining whether a statute is in force and applicable. More importantly, courts routinely exercise discretions and powers granted by statutes and the common law, many of which, on any view, are extremely broad. Moreover, much judicial work is expended in interlocutory or procedural matters, where courts are simply exercising their inherent power to manage their own business. Why should not a Victorian court doing these things – none of which impinge on Australia’s unified common law – be obliged to act compatibly with and take account of human rights?

34 Compare Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [18], noting that the argument about the development of the common law “was not at the forefront of the appellant’s oral submissions in this Court and reliance is placed upon the written submissions. The interrelation and interaction between common law and statute may trigger varied and complex questions requiring full arguments in cases where they arise” (emphasis added).
35 Compare Perry, n 30, p 17.
36 Compare Australian Human Rights Centre, Submission to the Victorian Human Rights Consultation Committee (August 2005) p 29 stating that: “[T]he current position in Australia is that there is one unified common law of Australia, which is not susceptible to direct influence by legislation in any one state” (emphasis added). One explanation for the presence of the word “direct” in this passage is that it is a typo and that the reference should have been to “indirect influence”, which is what was at issue in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49. Unfortunately, if this is a typo, then it is a highly consequential one, as the passage was quoted (apparently with approval) by the Human Rights Consultation Committee, n 28, p 59.
37 This argument was mooted by Therese Henning in an unpublished paper she presented at the Evidence, Criminal Justice and Adjudication Colloquium, Faculty of Law, University of New South Wales (21 April 2007).
38 For example, the Human Rights (Sexual Conduct) Act 1994 (Cth).
39 See Charter of Human Rights and Responsibilities Bill 2006 (Vic), Explanatory Memorandum on cl 4(1)(j).
40 Applicable to the courts via the Charter, s 6(2)(b), regardless of the definition of public authority.
41 See, eg R v YL [2004] ACTSC 115; (2004) 187 FLR 84 at [24]- [28], applying the Acts Interpretation Act 1901 (Cth), s 10A (on references to repealed legislation) in a case where the judge raised concerns that its application to Evidence Act 1995 (Cth), s 19 (exempting some proceedings from s 18, and providing courts with a discretion to permit a relative of the defendant not to testify), could lead to physical harm to a witness, contrary to Human Rights Act 2004 (ACT), s 11 on the right of children to protection.
Nor is this problem necessarily solved by the Charter’s regime for statutory interpretation. To
return to the example concerning cross-examination of defendants about their character, this happens
to be a topic that, under Victoria’s current evidence law, is contained in a statutory provision.42
However, there are two problems with interpreting this provision, say, as requiring a court to refuse
leave if the attack limited the defendant’s human rights. One is that the High Court has already held
that the discretion to give leave to a cross-examination must not be interpreted as a “general
exclusionary rule”, as to do so would undermine the intended statutory scheme, which balances many
factors, including the capacity for judicial directions to manage any prejudice that might result from
admission.43 This view would appear to preclude a contrary interpretation under s 32(1) “so far as
possible consistently with [the cross-examination statute’s] purpose”. A further problem is that the
High Court has held that this statutory provision – which contains no criteria for the discretion it
creates – in fact “expresses a rule of practice” (applicable whether the statute exists or not) and also
“gives statutory recognition” to a common law discretion to exclude unfairly prejudicial evidence.44
So, arguably, the only aspect of the discretion amenable to statutory interpretation is its existence;
everything else is governed by non-statutory law, which the Charter’s interpretation regime is not
supposed to affect. A similar argument might also apply under the equivalent provision in the new
Evidence Act 2008, which also is subject to a general leave requirement.45 It certainly can be made
about other aspects of the statute that expressly preserve common law rules, notably the obligation to
give judicial directions required to ensure that a trial is fair.46

The exemption of courts from the Charter’s obligations regime seems to be a case of an esoteric
bit of human rights theory gone awry. The committee’s discussion of the common law emerged from
its consideration of a policy debate about whether rights regimes that apply to government action
ought to be permitted to have a “horizontal effect”, via the courts, on how citizens deal with each other
(arguably broadening power imbalances between them).47 Indeed, this rationale for the exemption was
belatedly mooted in Western Australia’s (WA) human rights consultation in the face of criticism of
Victoria’s constitutional argument:48

[T]here appears to us to be other reasons why some caution should be exercised in considering whether

courts and tribunals should be required to make decisions, and act, compatibly with human rights in the

performance of their judicial functions (or at least in the application of the common law). To require

courts and tribunals to comply with human rights in this way would potentially extend the recognition

and protection of human rights far beyond the scope intended by the Parliament.

However, the legal relationship between private citizens (ie private law) is not a topic that is
commensurate with either the common law49 or the non-administrative function of the courts. Rather,
much of the common law, and what the courts do generally, concerns private people’s legal
relationship with the state (ie public law). This is especially true of decisions by courts about how they
will (and will not) resolve the factual disputes that public or private individuals bring before them
(ie evidence law.) There is no political controversy whatsoever about subjecting this aspect of the
courts’ work to an obligation to act compatibly with human rights, especially the civil and political
rights that the Charter promotes. In the context of public law, and notably criminal law, the only

42 Crimes Act 1958 (Vic), s 399(6). See also Evidence Act 2008 (Vic), s 104.
43 Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 at 57.
44 Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 at 51; cf Matusevich v The Queen (1977) 136 CLR 633 at 652 discussing the Victorian provision.
45 Evidence Act 2008 (Vic), ss 104, 110, 112.
46 Evidence Act 2008 (Vic), s 165(5).
47 Human Rights Consultation Committee, n 28, p 59, quoting Australian Human Rights Centre, n 36, p 29, citing numerous comparative law articles at fn 90.
48 Consultation Committee for a Proposed WA Human Rights Act, A WA Human Rights Act, Final Report (2007) p 192.
49 See Evans S and Evans C, “Legal Redress Under the Victorian Charter of Human Rights and Responsibilities” (2006) 17 PLR 264 at 269-270, noting that s 32(1) of the Charter will have a horizontal effect, including potentially giving (via statute) human rights to corporations, despite the intentions of “some of the participants in the political debate”.
distinction between courts (acting judicially) and other public authorities is that courts are especially
powerful, a reality attested to by the number of Charter rights that are directed especially at courts. To
oblige other public authorities to conform to these rights50 but to exempt courts in their judicial
function from them is simply perverse.

Again, to return to the example of the rule of evidence concerning a defendant’s character, it
might be argued that, while a court is exempt from acting compatibly with Charter rights when
exercising its discretion to admit such evidence, the prosecutor, almost always a “public authority”,51
is forbidden by the Charter’s obligations regime under s 38(1) from cross-examining the defendant “in
a way that is incompatible with a human right”. However, while this argument does seem to follow
from s 38(1), it seems unsatisfactory as it means that the prosecution and court are effectively subject
to different rules of evidence. Procedurally, whereas disputes about the court’s version of evidence law
are resolved through hearings on admissibility, the prosecutor’s version – based on conduct, rather
than admissibility – would require interlocutory proceedings on the issuing of a declaration or
injunction;52 in practice, a court would first have to decide whether to give a prosecutor leave to
cross-examine under the cross-examinations statute and then decide whether to enjoin the prosecutor
from doing so under the Charter. Moreover, the court would need to rule, not on the evidence itself,
but rather the prosecutor’s decisions about it, a subject traditionally off limits from judicial scrutiny as
it turns on tactical and ethical concerns and may require the divulgence of confidential information. It
may well be that the prosecutor will also be able to argue that it would not be reasonable for it to
refrain from adducing evidence that would be admissible under the applicable law; such a course may,
indeed, fail to give effect to (and even frustrate) that law.53

The problem of applying two different sets of rules of evidence is even more extreme with respect
to the differential application of the obligations regime to different “functions” of Victoria’s courts and
tribunals.54 If the note to s 4(1)(j) is correct in claiming that committals are acts done in an
“administrative capacity” and hence subject to the Charter,55 then it means that Victorian magistrates,
in determining whether there is sufficient evidence for charges to proceed to a trial, will need to
exercise any discretion they have compatibly with Charter rights, including s 24(1)’s right to a fair

50 Compare: “[T]he presumption of innocence implies a right to be treated in accordance with this principle. It is therefore a duty of all public authorities to refrain from prejudging the outcome of a trial” (emphasis added): United Nations Human Rights Committee, General Comment No 13: Equality Before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Art 14) (1984) at [7].
51 Charter, s 4(1), including a “public official”, defined by the Public Administration 2004 (Vic), s 4(1), which in turn includes the “holder of a statutory office”, in turn defined as “an office established by or under an Act to which the right to appoint is vested in the Governor in Council or a Minister”; cf Public Prosecution Act 1994 (Vic), s 31; but cf R v YL [2004] ACTSC 115; (2004) 187 FLR 84 at [21] noting the possibility of private prosecutions.
52 Charter, s 39(2)(b); cf R (Pretty) v Director of Public Prosecutions [2001] UKHL 61; [2002] 1 AC 800 at [121], decrying suggestions that prosecutors themselves should resolve disputes about what the law is, but compare the Charter, s 41(c), giving the Victorian Equal Opportunity and Human Rights Commission a function “when requested by a public authority, to review the authority’s programs and practices to determine their compatibility with human rights”. See also s 33, providing for referral to a higher court if a party requests and “the question is appropriate for determination by the Supreme Court” and barring lower court determinations or inconsistent action while the referred question is pending.
53 Charter, s 38(2); cf Doherty v Birmingham City Council [2007] EWCA Crim 2157; [2008] WLR 636 at [155].
54 Charter, s 4(1)(j).
55 Compare the remarks of the High Court in R v Murphy [1985] HCA 50; (1985) 158 CLR 596 at 616 that: “Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury. They have the closest, if not an essential, connexion with an actual exercise of judicial power”; cf Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 at [44]; cf Charter of Human Rights and Responsibilities Bill 2006 (Vic), Explanatory Memorandum, which states that the exception to s 4(1)(j) covers “courts when acting in a judicial or quasi-judicial capacity” (emphasis added).
hearing. It is possible, therefore, that magistrates presiding over committals will be required to
disregard some evidence, eg of disputed confessions, even though the trial judges in any eventual trial
will be under no similar obligation.56

A possible solution to the problem posed by s 4(1)(j) was proposed by King J in R v Williams:

Section 6(2) of the Charter establishes that the Charter applies to courts and tribunals, to the extent that

they have functions under Pt 2, s 3(2) defines function as including a reference to a power, authority and

duty; and that a reference to the exercise of a function includes, where the function is a duty, a reference

to the performance of the duty ...

When a Court is determining what would constitute a fair hearing in respect of a criminal trial it would

be difficult to imagine that the rights referred to as minimum guarantees in criminal proceedings would

not form, in addition to any common law and other statutory requirements, the basis of what constitutes

a fair hearing. This may be what Parliament intended, but as indicated after reading all of the materials,

including the Law Reform Commission Reports, the explanatory memorandum, and numerous overseas

authorities, I am not convinced that is what Parliament intended to be the result of the combination of

ss 6, 24 and 25 of the Charter. It is unnecessary for me to determine that issue, but I draw the

parliament’s attention to this possible interpretation of the legislation.57

While this argument has gained considerable currency amongst Charter commentators,58 it is
quite unappealing. The overriding of an express exemption to the Charter by reference to a mere
application provision is a most curious method of binding courts and tribunals to avoid the Charter. It
is far from clear what legal effect will flow from a court or tribunal having a “function” under the
right, say, to a fair hearing, nor is it obvious how such an obligation will interact with non-Charter
laws or what remedies are available if a court fails to fulfil its role. It is also highly doubtful that any
legal effect at all was intended by the drafters of s 6(2)(b). Indeed, the committee wrote:

People and organisations providing important public services should not be left uncertain about whether

they must protect fundamental human rights under the Charter; nor should the people receiving those

services be left in doubt about whether or not their rights are protected. The Committee does not want

to create ambiguities that the courts may need to resolve. This view is also consistent with the

Statement of Intent, which expresses a clear preference for Parliament to have the last say in regard to

rights protection. That goal can be achieved by setting out how far the Charter will extend with as much

clarity as possible.59

The reading of s 6(2)(b) as binding courts is especially strange given the committee’s view that
such a provision would be susceptible to constitutional challenge. A deliberate gap in the Charter’s
operation, however unfortunate, ought not to be filled by the mere happenstance of any inelegantly
drafted application provision (which, perhaps, was intended merely to allude to the interaction
between the “interpretation of legislation” regime and the rights in Pt 2).

The WA committee’s final word on the exemption of courts and tribunals in their judicial
functions was as follows:

An obligation on courts and tribunals to comply with human rights in the performance of their judicial

functions would also require them to consider human rights in every case. This obligation would arise

quite independently of any request to do so by the parties (and quite possibly notwithstanding the views

of the parties as to the appropriate resolution of the case). This may result in unpredictable outcomes in

litigation ...

56 Compare Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, with Deane J holding that the decision to commit must take account of rulings a judge might make at the trial. Query whether a magistrate acts compatibly with a defendant’s rights under the Charter if the magistrate relies on confessional evidence that, while arguably obtained in breach of the s 25(2)(k), would nevertheless be admissible under Victoria’s law of evidence.
57 R v Williams [2007] VSC 2; (2007) 16 VR 168 at [51]- [55].
58 Evans C and Evans S, Australian Bills of Rights (LexisNexis, 2008) at [1.40]-[1.44]; Hettiarachi P, Simple and Complex: Interactions Between the Common Law, Private Sphere and Human Rights Legislation in Australia (2008), http://www.hrlrc.org.au/files/R082NLUA5T/Charter%20common%20law%20private%20sphere%20CTs%20%20PIs%20-%20ph%20-%2031Mar08.pdf viewed 17 November 2008.
59 Human Rights Consultation Committee, n 28, p 54.

We note that some anomalies could arise if courts and tribunals were not required to make decisions, or

act, compatibly with human rights in the performance of their judicial functions. Many of the rights in

the draft Bill which pertain to legal proceedings, and particularly to criminal proceedings, appear to

contemplate that the courts will play an important (if not decisive) role in achieving compliance wit

these rights ... No doubt there would be arguments in the courts questioning how rights such as this

could be implemented if courts and tribunals were not required to comply with human rights when

exercising their judicial functions. One answer could be that the exclusion of courts and tribunals in the

performance of their judicial functions, from the definition of a “government agency” would simply

mean that none of the remedies available under a WA Human Rights Act would be available in respect

of a failure to comply.60

It may well be that s 4(1)(j)’s true purpose was to greatly narrow the protection afforded by the
Charter. However, it is entirely wrong to assume that such narrowing will translate into more
predictable litigation.

To the contrary, the role of human rights inside Victoria’s courtrooms (including those human
rights that are about things that only courts typically do, like granting bail, trials of criminal charges
and sentencing) will, as the result of s 4(1)(j), depend on the collateral effect of two of the Charter’s
regimes:

• the interpretation regime, as it applies to statutes that apply to the courts; and

• the obligations regime, as it applies to public authorities that engage in conduct in connection

with court proceedings.
The application of these two regimes to Victorian evidence law and practice will turn on a host of
excruciating legal distinctions, including distinguishing:

• a statutory provision from the common law rules or rules of practice it recognises or gives effect

to;61

• statutory discretions that can be interpreted as general exclusionary rules from those that cannot;62

• the purposes of statutory discretions that are consistent with bars on decisions that are

incompatible with human rights from those that are not;63

• public authorities from non-public authorities;64

• “tribunals” from other public authorities;65

• courts’ and tribunals’ “administrative” capacities from their other capacities;66 and

• situations where it is reasonable for a public authority to refrain from doing something that the

ordinary rules of evidence permit from those where it is not.

Contrary to the express claims of the Charter’s supporters,67 these various difficulties can only
lead to recurrent drawn-out technical arguments, ie a lawyer’s picnic.68 Worse still, the resulting legal
effect of the Charter on the conduct of court proceedings would be, at best, a pastiche of weak

60 Consultation Committee for a Proposed WA Human Rights Act, n 48, pp 192-193.
61 For example, Crimes Act 1958 (Vic), s 399(6); cf Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 at 51; Matusevich v The Queen (1977) 136 CLR 633 at 652.
62 For example, Crimes Act 1958 (Vic), s 399(6); cf Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 at 57.
63 For example, R v YL [2004] ACTSC 115; (2004) 187 FLR 84 at [31] regarding the Legislation Act 2001 (ACT), s 39 as providing no barrier to interpreting Supreme Court Act 1933 (ACT), s 30, and conferring jurisdiction “necessary to administer justice” as giving courts the power to refuse to coerce a witness to testify.
64 Compare Evans and Evans, n 49 at 273-274. Query whether lawyers employed by the Legal Aid Commission are public authorities; cf Charter, s 4(5). As a matter of policy, it seems dubious that legal aid lawyers (and hence their clients’ defence) will be constrained by s 38(1), whereas privately funded lawyers are not.
65 Mental Health Review Board of Victoria Statement of Reasons No 09-003 [2008] VHMRB 1 at [134].
66 For example, R v Williams [2007] VSC 2; (2007) 16 VR 168 at [50]; committal proceedings in light of R v Murphy [1985] HCA 50; (1985) 158 CLR 596 at 616.
67 Williams G, “The Charter You Wanted”, Herald Sun (26 July 2006) p 18.
68 Compare Department of Justice and Community Safety, Human Rights Act 2004: Twelve-month Review, Report (2006) p 29, noting that reliance on the “indirect operation of the interpretative provision is unnecessarily complex and this may have an adverse effect on the growth of a broad rights dialogue”.
restraints, waxing and waning as courts drift between their administrative and non-administrative
capacities, proceedings pass in and out of the purview of suitably malleable statutory provisions and
public authorities enter and leave the courtroom.

What is all this trouble in aid of? A “unified” common law? Preserving the High Court’s position
at the apex of Australia’s courts? Keeping human rights out of private relationships? What it certainly
is not in aid of is Victorians’ rights to the fundamental court-based rights listed in Pt 2 of the Charter,
as they are affected by decisions about the admissibility and weight of evidence. Surely, leaving those
rights to be promoted in evidence law decision-making only by proxy is contrary to the Charter’s
foundational principles that human rights are “essential in a democratic and inclusive society”,
“belong to all people without discrimination” and “come with responsibilities”.69 Victoria’s courts, in
common with all other public authorities, should have the responsibility, rather than the mere
discretion, to act compatibly with (and give proper consideration to) human rights during judicial
proceedings whenever non-Charter law (or maybe just non-Charter statutes) permit.70

UNLAWFUL FACT-FINDING: THE RIGHT TO A REMEDY

The exemption of courts’ non-administrative functions removes most decisions about the admissibility
and weight of evidence from the Charter’s regime for obligations; however, many of the acts and
decisions about how evidence is gathered will remain subject to it. Most of Victoria’s investigatory
agencies (including, expressly, Victoria Police) fall squarely within the Charter’s definition of public
authority. Moreover, assuming the note to s 4(1)(j) is correct, the obligations mandate will also apply
to at least some of the pre-trial activities of courts and tribunals, notably the committal process, many
of which may produce evidence, directly or indirectly.

The obligations mandate provides that:

it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making

a decision, to fail to give proper consideration to a relevant human right.71

This mandate goes far beyond the administrative law requirements to act reasonably and to take
account of relevant considerations. Instead, the Charter requires that administrators alter their conduct
and decision-making to comply with and give consideration to all human rights, both substantive and
procedural. So, investigative bodies and pre-trial bodies will need to consider, not merely the direct
impact of an investigative technique (such as whether it is degrading or an arbitrary interference in
privacy) but also its indirect impact on a future trial (such as whether it will render such a trial unfair
or damage a defendant’s right to be presumed innocent or not to be compelled to testify against
himself or herself). Moreover, the mandate applies to all acts (which are defined to include a “failure
to act” and a proposed action),72 as well as all decisions.

Investigative and pre-trial authorities will break the law if they breach a person’s rights, fail to do
something that is required by a person’s rights or fail to give proper consideration to such a right.
However, this broad scope is matched by equally important provisos. One, of course, is that these
requirements do not apply if another law (such as the statute the body is applying) makes it
unreasonable to comply with them;73 such is the primacy that the Charter gives to all other laws,
including ones that do not emanate from Victoria’s Parliament. But a second proviso is potentially
much more crippling: the Charter does not provide any remedies of its own for any breach of the
obligations regime and potentially limits the availability of some significant non-Charter remedies.

The origins of this second proviso are in the Statement of Intent issued by Rob Hulls at the

69 Charter, Preamble.
70 Compare Human Rights Act 1998 (UK), s 6(3)(a), which expressly includes a “court or tribunal” in the definition of “public authority” and s 6(4) excising “the House of Lords in its judicial capacity” from the exemption for Parliament in s 6(3). See also s 9(1) restricting the proceedings that can be brought “in respect of a judicial act”.
71 Charter, s 38(1).
72 Charter, s 3(1).
73 Charter, s 38(2).
beginning of the so-called “community consultation” on the Charter. Hulls stated:

The Government’s approach is to address human rights issues through mechanisms that promote

dialogue, education, discussion and good practice rather than litigation ... Consistent with its focus on

dispute prevention, the Government does not wish to create new individual causes of action based on

human rights breaches.74

The result is that the Charter lacks the clauses contained in comparable documents in the UK and
now the Australian Capital Territory (ACT) permitting a court to “grant the relief it considers
appropriate” (except damages) to a “victim of a contravention of” the obligations regime. Moreover, in
order to avoid the implication of such a judicial remedy for rights breaches (as has occurred in the
United States (US) and New Zealand), the Charter also contains the following section:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act

or decision of a public authority on the ground that the act or decision was unlawful, that person may

seek that relief or remedy on a ground of unlawfulness arising because of this Charter.75

Although much about this provision is unclear, its apparent effect is to make existing legal

remedies the exclusive vehicle for responding to breaches of the obligations mandate.

Some commentators argue that the remedies provision imposes further restrictions designed to
achieve the Attorney-General’s purpose of preventing new individual causes of action.76 Various
possible interpretations of the term “may seek” have been proposed that require claimants to make
non-Charter claims against the public authority in question before the Charter claim becomes
available, although views differ as to whether such a claim must be successful, plausible or merely
non-colourable. Either way, such a requirement would have an unfortunate effect. For example,
suppose that Victoria Police instituted a new policy of standing on public roads and peering through
people’s windows to detect evidence of a crime. Such action (while doubtless alarming) is perfectly
legal under non-Charter Victorian law, but may well be in breach of the Charter right against unlawful
or arbitrary interferences in privacy. It seems perverse that a criminal defendant who is charged on the
basis of evidence gathered through this method would first have to make (let alone succeed in) a claim
that the police had broken a regular law (like the tort of nuisance) before they can seek a remedy for
a breach of the Charter obligations regime.77 In particular, it is difficult to see how such an approach
furthers the Attorney-General’s goal of alternative dispute resolution.

However, even if the section lacks these unnecessary bars to litigation, it still poses a major
barrier to reliance on the Charter by criminal defendants seeking a remedy for rights-incompatible acts
or decisions by criminal investigators or prosecutors. The committee’s discussion of those existing
remedies spoke primarily of administrative law remedies: judicial review and declarations. However,
there is a major difficulty with using either of these remedies in a criminal law context; they are civil
remedies and Australian courts discourage their use in criminal matters:

The powers of the courts in their several criminal jurisdictions are wider and more effective than the

powers to make the declaration of, and to make ancillary orders to enforce, a right, if it exists, in the

way sought in proceedings such as the present. In particular, the powers and discretions of the judge

who presides at a criminal trial ... are more ample ...

Quite apart from the wider powers and discretions of the courts exercising criminal jurisdiction, they are

in a superior position to determine and direct what should be done, and when it should be done. They

have ready access to the relevant circumstances which must include the nature of the charge and the

demands of the pending trial. All the foregoing circumstances make it totally inappropriate to seek the

74 Hulls R, Human Rights in Victoria: Statement of Intent (Department of Justice, 2005) p 3.
75 Charter, s 39(1).
76 Pound A and Evans K, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Lawbook Co., 2008) at [5160].
77 For an apparent instance of such pointless legal arguments, see the judicial review arguments addressed in Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 at [42]- [101].

intervention of the civil courts, in proceedings ... or for the civil courts to exercise any discretion they

have to intervene, even assuming the relevant right could be established.78

Indeed, there are a plethora of statutory provisions barring the use of civil remedies against many
of the public authorities responsible for criminal justice.79 Accordingly, those remedies will not be
available for breaches of the Charter. The result is that, if the Charter is to be applied to remedy
breaches of rights involved in the gathering of evidence, then those remedies will have to be sought at
the criminal trial itself. While the trial context certainly avoids some of the standing issues discussed
above, it also creates significant new barriers for successful Charter claims.

First, if defendants have to seek remedies in the trial itself, rather than in separate collateral
proceedings, then they are much more likely to fall within the terms of the Charter’s transitional
provision, which provides that the Charter “does not affect proceedings commenced ... before”
1 January 2007.80 This section has been interpreted as applying to all criminal proceedings where
charges were laid in 2006 or earlier.81 The result of this unfortunate provision is that such defendants
cannot rely on either the interpretation or obligations regime, even in respect of evidence gathered
after – even long after – the Charter’s full commencement date of 2008. Arguably, these consequences
would apply in collateral civil proceedings commenced more recently.82

Secondly, the vesting of all remedies in the hands of a criminal trial judge means that they are all
made by a decision-maker who is exempt from the definition of public authority, ie a court exercising
a non-administrative function. By contrast, there is at least some possibility that collateral civil
remedies, perhaps those sought in the Victorian Civil and Administrative Tribunal, are administrative
functions. The significance of this is whether or not any discretion involved in granting a remedy
needs to be exercised in a way that is compatible with the defendant’s Charter rights and involves
giving proper consideration to them.83

The clearest example of where this matters is the evidence law rule on the admissibility of
illegally or improperly obtained evidence, which requires a judge to balance two competing matters:
the costs of admitting such evidence and the costs of rejecting it. The correct balance to be struck is
perceived by many jurisdictions as determined by human rights concerns. However, while the Charter
may have an effect on the scope of such rules, it cannot have an effect on their operation, with the
result that the traditional Australian approach will remain. Indeed, the Evidence Act 2008 neglects to
even provide that the Charter is a factor to be considered in exercising this discretion, instead
(presumably to conform with the uniform evidence legislation in other jurisdictions) requiring
Victorian courts to consider the rights in the International Covenant on Civil and Political Rights
(ICCPR), which differ from (and in some respects are narrower than) the Charter rights.84

Finally, and perhaps most significantly, the terms of the Charter’s remedies provision – perhaps
reflecting the administrative law bias of its drafters – only provide for a “relief or remedy” available
under non-Charter law for conduct “on the ground that [the conduct] was unlawful”.85
In the law of evidence, unlawful conduct is, on its own, a side issue in decisions about how to find
facts. Indeed, the original common law approach to unlawfulness was that it had no consequences in

78 Smith v Commissioner for Corrective Services [1978] 1 NSWLR 317 at 320-321.
79 For example, Public Prosecutions Act 1994 (Vic), s 47; definition of “tribunal” in the Administrative Law Act 1978 (Vic) (excluding courts, bodies presided over by a judge and bodies not required to obey natural justice).
80 Charter, s 49(2).
81 R v Williams [2007] VSC 2; (2007) 16 VR 168 at [40]- [48]; see Re BAE Systems Australia Ltd (Anti-Discrimination) [2008] VCAT 1799 at [62], holding that s 2 of the Charter also prevents the application of the interpretation mandate or the obligations mandate in proceedings commenced in 2007 as well.
82 Gans J, “Transition Trouble” (2008) 82 LIJ 54.
83 Charter, s 4(1)(j).
84 Evidence Act 2008 (Vic), s 138(3)(f).
85 Emphasis added; cf Human Rights Act 1998 (UK), s 7(1)(b), permitting “victims” of a breach of its obligations regime to “rely on the Convention right or rights concerned in any legal proceedings” and s 8(1), empowering a court to “grant such relief or remedy, or make such order, within its powers as it considers appropriate ... [i]n relation to any act ... of a public authority which the court finds is ... unlawful” under the United Kingdom obligations regime (emphasis added). The argument put in this
and of itself: “It matters not how you get it; if you steal it even, it would be admissible.”86 Rather,
evidence law’s strongest remedies are triggered by conduct that might affect the fairness of trials or
the propriety of the verdict. Pre-trial illegality, while never determinative of that issue, might
nevertheless affect how such conduct is characterised and influence the court’s decision on whether or
not to provide relief. In 2007, the Supreme Court of Norfolk Island had to determine whether to admit
statements made by the defendant while in the custody of New Zealand police and awaiting
extradition to Australia. The court held that any breaches by New Zealand police of the requirements
of that country’s Bill of Rights would be relevant to the question of whether the statements should be
excluded as unreliable, unfair or improperly obtained.87 In Victoria, a breach of an applicable human
rights regime would presumably be similarly relevant to common law remedies based on assessments
of voluntariness, oppression, unfairness, prejudice, abuse of process or conduct in breach of
community standards.88 However, the Charter’s remedies provision would not pick up any of these
remedies, as illegality is neither a necessary nor sufficient condition for any of them.89 So,
paradoxically, when considering evidence obtained through a joint operation in New Zealand and
Victoria, a Victorian court could take account of any breaches of New Zealand’s Bill of Rights when
applying these remedies, but not any breaches of the Charter’s obligations regime.

Australian evidence law does have a remedy specifically for unlawful conduct – the so-called
“public policy discretion” – but it is a weak remedy in many respects. The exclusionary rule
developed by the High Court, unlike its counterpart in the US, does not aim to either promote people’s
rights or deter unlawful behaviour. Rather, its purpose is to ensure that “the reception of the evidence
thus provided does not demean the court as a tribunal whose concern is in upholding the law”.90 While
in theory Australian courts can exclude illegally obtained evidence on the grounds that to do otherwise
would leave them tainted, in practice they often choose to admit the evidence on the grounds that to
do otherwise would leave them exposed to public criticism for freeing a criminal “on a technicality”.91
The result is that exclusions, especially in serious criminal trials where the illegally obtained evidence
was important (eg DNA evidence in murder or rape trials), are rare.92 The same is true under the
article would still have been applicable to the different provision drafted by the Human Rights Consultation Committee at cl 40(1) of its draft, as it was also limited to a “relief or remedy [that] would have been available had the act or decision been unlawful apart from this Charter” (emphasis added).

86 R v Leatham (1861) 8 Cox CC 498 at 501; [1861] EngR 313; 121 ER 589, approved in Kuruma v The Queen [1955] AC 197 at 203. The High Court of Australia rejected this approach in the 1970s, citing Holmes J’s dissent in Olmstead v United States [1928] USSC 133; 277 US 438 at 470 (1927) that it may be “a less evil that some criminals should escape than that the Government should play an ignoble part”: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 78.
87 R v McNeill (Ruling No 1) [2007] NFSC 2; (2007) 209 FLR 124 at [189]- [198], considering alleged breaches of s 23(1)(a), (b) and (c) of the New Zealand Bill of Rights Act 1990 (NZ), as well as the New Zealand approach to admissibility of evidence obtained in breach of that Act (see R v Shaheed [2002] 2 NZLR 377), when making rulings on admissibility under the Evidence Act 2004 (NI), ss 85 (cf at [251]-[252]), 90 (cf at [289]-[290]) and 138 (cf at [309]-[310], [322](d)). Section 138’s provisions on illegality were not applicable, as they are limited to breaches of Norfolk Island law (cf at [190]). See also at [322](f) briefly dismissing any breach of the International Covenant on Civil and Political Rights (ICCPR).
88 See Gans and Palmer, n 21, pp 142-144, 335-342, 421-423, 476-498.
89 Compare Evans and Evans, n 49 at 280, suggesting that the remedy of staying proceedings would be available “where there has been an impropriety by the Crown” under the obligations regime. Query whether the stay remedy is one that arises “on the ground that [an] act or decision was unlawful”, as opposed to when the court determines that permitting further proceedings would be an abuse of process, a ground for which illegality is neither a necessary nor sufficient condition. See also Pound and Evans, n 76 at [5200], arguing that “ground of unlawfulness” can be “read purposively so as to include remedies which, although not ultimately turning on a question of unlawfulness, embrace unlawfulness as a relevant fact in the exercise of the discretion”. This assumes, of course, that the “purpose” of s 39(1) of the Charter can be readily ascertained.
90 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 78-81.
91 See Gans and Palmer, n 21, pp 430-435.
92 Presser B, “Research Note: Public Policy, Police Interest: A Re-Evaluation of the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence” [2001] MelbULawRw 24; (2001) 25 MULR 757 at 776-781, finding exclusion in only 15% of studied cases, noting courts’ willingness to downplay unlawful conduct as accidental and unwillingness to exclude evidence in serious or drug cases. See also the studies cited by Presser at fns 6 and 7.
slightly stricter statutory rule under the uniform evidence legislation.93 Both rules, but especially the
common law one, are also hedged by limitations, such as the requirement of a causal link between the
illegality and the evidence obtained and the common law rule that the illegal conduct must be by a
“law enforcement authority”.94

A simple example of the restricted way the Charter’s remedies regime operates in relation to
evidence law is a WA case, recently before the High Court, where a foolish man being investigated for
armed robbery boasted about his criminal prowess to his guards while in the lockup.95 His admissions
were caught on a surveillance camera, supplying a precondition for admissibility under the state’s
evidence law.96 If the Charter applied, the decision to install the camera would arguably be in breach
of the police’s obligations to act compatibly with detainees’ right to privacy.97 However, a Victorian
court applying the most relevant evidence law remedy – the exclusionary rule for admission obtained
at a price that the community would find unacceptable98 – could not take account of the fact that the
camera was installed unlawfully under the Charter in determining whether the community’s standards,
which differ from legal standards,99 were breached. The “public policy discretion” would be available,
but the admissions would be unlikely to be excluded, given the seriousness of the crime being
investigated, the importance of the admissions and the investigating officers’ lack of involvement in
the installation of the camera.100

A more complex example is a recent South Australian (SA) case where a driver, after testing
positive to a random breath test, went to the emergency room of the Royal Adelaide Hospital to have
a blood test taken but was kept waiting so long that his negative result was incapable of rebutting the
result of the earlier breath test. A majority of the Court of Criminal Appeal rejected the defendant’s
argument that the breath test should have been excluded at the defendant’s subsequent trial for drink
driving. The court held that the public policy discretion was inapplicable because the police had
complied with all applicable laws, which only required them to supply the defendant with a
blood-testing kit.101 The defendant also argued that the breath test results should be excluded on the
ground of unfairness, given that he was unable to test the results through the only mechanism allowed
to him – a timely blood test – through no fault of his own. A majority of the court held that this
remedy was unavailable to the defendant, absent any reason to doubt the reliability of the breath test,
because no-one else was at fault.102

93 Presser, n 92 at 782-783; cf R v Caruso [2006] ACTSC 45 at [38]- [39].
94 R v Lobban (2000) 77 SASR 24 at [39]-[41] (special leave refused by the High Court); see Transcript of Proceedings, Lobban v The Queen (High Court of Australia, No A21/2000, 1 June 2001); affirmed Police v Hall [2006] SASC 281; (2006) 95 SASR 482; cf R v Caruso [2006] ACTSC 45 at [37].
95 Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138.
96 Criminal Code (WA), s 570D(2)(a).
97 One argument could be that the legislative authority (relied on by the Crown in Carr v The Queen [2007] HCATrans 143) to install the surveillance device, s 6(3)(b)(i) of the Surveillance Devices Act 1998 (WA) (a blanket exemption for all law enforcement officers from the statutory requirement of a warrant, where the law enforcement is a party to the activity recorded – cf Surveillance Devices Act 1999 (Vic), s 6(2)(c)) is too broad to prevent unlawful or arbitrary interferences with privacy; cf United Nations Human Rights Committee, General Comment No 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (Art 17) (1988) at [3], [8].
98 R v Swaffıeld (1998) 192 CLR 159 at [69]-[70]; cf Evidence Act 2008 (Vic), s 90.
99 Gans and Palmer, n 21, p 488.
100 Carr v Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 at [52]- [56].
101 Road Traffıc Act 1961 (SA), s 47G(2a) (now re-numbered as s 47K(2a)); cf Road Safety Act 1986 (Vic), s 55(10), which requires a police officer, on request, “to arrange” for a blood sample to be taken; see Police v Hall [2006] SASC 281; (2006) 95 SASR 482 at [100]- [112] (on the change in the SA provisions).
102 Police v Hall [2006] SASC 281; (2006) 95 SASR 482 at [78].
If this same series of events occurred in Victoria under the Charter, it could be argued that the
hospital – a public authority103 – in deciding to prioritise other patients over the defendant, failed to
take account of his right to a fair hearing under s 24(1);104 however, even if a court found that the
hospital’s delay was therefore illegal under s 38(1), there would be no consequences for the
admissibility of the breath test. The public policy discretion would still not apply for three reasons: (1)
the illegal conduct was not by a “law enforcement authority”; (2) the illegal conduct came after the
breath test; and (3) the breath test was too important and the illegality too mild to warrant exclusion.
Moreover, the unfairness discretion, which is not limited in any of these respects, could not be used
either, even though the hospital’s breach of s 38(1) would supply the necessary fault in another’s
conduct that was lacking in SA. A Victorian court would be forbidden from taking a breach of the
Charter’s obligations regime into account when applying the unfairness discretion, because
unlawfulness is merely relevant to that remedy, but is neither a necessary or sufficient ground for its
application.

In short, s 39(1) goes too far in its attempt to constrain the Charter’s legal effect within the
boundaries of non-Charter laws. Limiting the remedies for breaches of the Charter to those provided
by non-Charter laws actually confines the available remedies to those for unlawful conduct per se,
excluding evidence law’s more nuanced and stronger remedies where illegality is merely a factor –
perhaps a significant one – amongst many. In these respects, Victoria may well be worse off than the
current Human Rights Act 2004 (ACT) – and the New Zealand Bill of Rights Act 1990 (NZ) – which
are silent on remedies, therefore allowing the possibility, realised in New Zealand, of the flexible relief
of breaches of human rights that play out in the field of evidence law. Recent amendments in the ACT
– in line with the UK Act – permits “victims” of a breach of human rights by a public authority to
“rely on the Convention right or rights concerned in any legal proceedings”, a formulation that permits
courts to take account of a public authority’s breach of a person’s human rights when applying
remedies on grounds other than unlawfulness.105

LAWFUL FACT-FINDING: THE REMEDY FOR RESPONSIBILITY

The above discussion of the legal effect of the Charter could be seen as missing the point.106 The
Charter’s primary purpose is not to change the law directly, but rather to have an indirect impact,
through the creation of a human rights culture.107 From that perspective, the interpretation, obligations
and remedies regimes are less important than the Charter’s wholly procedural provisions, including
the regime for parliamentary scrutiny and the Supreme Court’s power to issue a “declaration of
inconsistent interpretation”.108 On some views, the Charter’s main contribution is to facilitate a
dialogue between the courts and Parliament on human rights.109

103 Charter, s 4(1)(b), including “an entity established by a statutory provision that has functions of a public nature” (cf South Australian Health Commission Act 1976 (SA), s 27, providing for the incorporation of hospitals, one of which is the Royal Adelaide Hospital: see http://www.rah.sa.gov.au/aboutrah/aboutrah.php viewed 13 May 2007). Royal Melbourne Hospital, eg is also likely to be within the definition of public authority as “an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority” (s 4(1)(c)), as it is owned by Melbourne Health, which is funded (cf s 4(2)(d)) and, it appears, wholly-owned by the State (cf s 4(2)(e)).
104 This would depend on why the delay occurred. One possibility is that the staff relegated the defendant to the end of the waiting list as a person without any health issues, something that arguably fails to consider his needs as a person facing criminal charges. See Police v Hall [2006] SASC 281; (2006) 95 SASR 482 at fn 26 to the effect that the delays experienced by the defendant are a regular occurrence in South Australia.
105 Human Rights (Amendment) Act 2008 (ACT); cf Human Rights Act 1998 (UK), s 7(1)(b).
106Williams G, “The Victorian Charter of Human Rights and Responsibilities: Origins and Scope” [2006] MelbULawRw 27; (2007) 30 MULR 880 at 903: “To focus narrowly on the Victorian Charter of Rights as it applies to courts is to misunderstand its operation and to take far too limited a perspective of its significance.”
107 Human Rights Consultation Committee, n 28, Ch 5.
108 Charter, s 36.
109 Williams, n 106 at 901-903, citing Hogg P and Bushell A, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall LJ 75.
While the general utility of the “dialogue” concept continues to be debated, this article is only
concerned with its role in relation to evidence law. One starting point of this dialogue is the statement of compatibility, explaining how each bill is compatible with human rights. Interestingly, while statements for new bills typically consist of detailed section-by-section discussion of all rights engaged by the bills, Attorney-General Rob Hulls’s statement on the Evidence Bill 2008 differed from this pattern with respect to the right to a fair hearing:

The right is afforded to persons charged with a criminal offence and parties to civil proceedings. However, what amounts to a “fair” hearing takes account of all relevant interests including those of the accused, the victim, witnesses and society ... The balancing of rights required by the charter has essentially been undertaken by both the Australian Law Reform Commission and the Victorian Law Reform Commission on whose reports this bill is based. In addition, in most cases the courts are given a broad discretion, which will ensure that the provisions are applied to ensure a fair hearing in the individual circumstances of the case. Further, clause 11 of the bill expressly preserves the powers of a court with respect to abuse of process. For these reasons, I have not included in this statement of compatibility a detailed analysis of the application of the balancing exercise in respect of each of the

provisions of the bill.110

The Scrutiny of Acts and Regulations Committee, in its mandatory report on the Bill, was
concerned that the Attorney-General did not provide a detailed analysis of the impact of individual sections of the Bill – notably those that allowed for the admission of prosecution evidence previously excluded by the common law and the exclusion of some evidence of innocence – on the Charter’s core procedural right.111 It is difficult to see how the dialogue is furthered by the mere claim of balance, much less when the balancing was done by bodies that had no regard to the Charter. Moreover, the reference to the preservation of the courts’ powers neglects the courts’ own exemption from the Charter112 and, as will be discussed, the unavailability of such judicial remedies to circumvent a statutory provision.

The potential non-amenability of evidence law to the rights dialogue envisaged by the Charter, at least with respect to the right to a fair hearing, may well extend beyond the parliamentary scrutiny process. The Supreme Court of Victoria’s new power to issue a “declaration of inconsistent interpretation” is only triggered if the court is of the “opinion that a statutory provision cannot be interpreted consistently with a human right”.113 While all Victorian courts must routinely determine whether a particular proceeding is fair, the formation of an opinion that a statutory provision is fair is entirely different. In the 1990s, the High Court of Australia baulked at a suggestion that findings about the fairness of a statutory provision can be an appropriate trigger for remedial action by a court. The court was asked to grant special leave to consider a series of cases where trial judges had been asked to stay criminal trials of rape defendants on the ground that NSW’s rape shield law, the world’s strictest, had excluded evidence that was relevant to the defence case.114 A majority of the court refused special leave in the following terms:

To grant special leave would be to elevate to the level of arguability the proposition that a court may decline to exercise its jurisdiction to try a criminal case because it forms the view that a law enacted by

110 Victoria, Legislative Assembly, Parliamentary Debates (26 June 2008) p 2632.
111 Scrutiny of Acts and Regulations Committee, Alert Digest No 9 of 2008, pp 11-12.
112 Charter, s 4(1)(j).
113 Charter, s 36(2). Compare the different wording of s 32(1), referring to whether a provision can be interpreted “in a way that is compatible with human rights” and the limitation (not present in s 36(2)) to when “it is possible to do so consistently with [the statutory provision’s] purpose”; cf Brennan G, “Introduction to Human Rights Law: Seminar – Part II” (2007) 81 ALJ 248 at 252. Note also the procedural requirements of a proceeding where “a question arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter” (s 36(1)) (and query whether the latter arises when no-one suggests that a statutory provision can be interpreted in any alternative way) and of a notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (s 36(3)).
114 Crimes Act 1900 (NSW), s 409B (now Criminal Procedure Act 1986 (NSW), s 293).
the Parliament is unfair. That is not a view to which a court is entitled to give effect in determining
whether to exercise its jurisdiction when it is properly invoked.115
This pronouncement may be read in a number of ways, possibly with different implications for
the Supreme Court of Victoria’s role under the Charter.116 This article’s concern is that it reflects a
view that, in an Australian context, the notion of a “fair” trial is commensurate with one that is
“according to law”. This reading is based on the arguments put by one of the barristers in the High
Court:

It is fundamental to our system of criminal justice that a person should not be convicted of an offence

save after a fair trial according to law. The expression “fair trial according to law” is not a tautology. In

most cases a trial is fair if conducted according to law, and unfair if not. If out legal processes were

perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of

all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the

overriding qualification and universal criterion of fairness.117

This argument was not well received by at least two members of the High Court:

BRENNAN CJ: However you describe it, the proposition is: because it is according to law, it will not

be a fair trial?

MR BODOR: Yes.

BRENNAN CJ: How can that be?

MR BODOR: Because the evidence is available which demonstrates that any attack, if I can call it that,

upon the complainant must be incomplete, it cannot be assessed in its true context, in its true light.

McHUGH J: But that overlooks the view that Parliament took a considered decision. They were not

lacking people when this legislation was introduced to warn those who had the carriage of this matter as

to what the result of this sort of legislation could bring about, but Parliament went ahead and legislated.

That being so, how could a trial be regarded as fair [sic unfair] when the Parliament has said this

evidence has to be excluded?118

If these views were applied to interpret s 24(1) of the Charter, then the right to a “fair hearing”
would be equated with a right to the application of the current rules of evidence. While this is by no
means an empty right, it is one that is subject to the same defects that Part I of this article identified in
relation to Charter rights that are expressly limited to unlawful interferences or that contain exceptions

115 PJE v The Queen [1996] HCATrans 353. See also Berrigan v The Queen [1995] HCATrans 389, holding that: “The correct application of the provision cannot of itself found an argument that the trial was unfair.”
116 On one reading, it will not be applicable in Victoria from 2008, because the Charter’s interpretation regime gives Victoria’s courts a jurisdiction (albeit a limited one) to act on any opinion it forms that a statutory provision is unfair. On another reading, the High Court’s position remains apposite, in light of s 36(5) of the Charter, holding that the making of a declaration of inconsistent interpretation neither affects “the validity, operation or enforcement” of any statutory provision nor gives legal rights to anyone. On a third reading, the remarks signal a possible constitutional problem with the Charter’s provisions on declarations of inconsistent interpretation, on the basis that they give the Supreme Court a legislative role that is incompatible with its role in exercising federal jurisdiction: Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.
117 PJE v The Queen [1996] HCATrans 353.
118 PJE v The Queen [1996] HCATrans 353. Counsel also raised the hypothetical of it being (literally) gagged at a special leave application. McHugh J noted that the accused can (and has been) metaphorically gagged and raised the hypothetical of Parliament legislating that “[u]pon arrest there’s a presumption of guilty”, asking “[b]ut what would a court do?” See also Berrigan v The Queen [1995] HCATrans 389, where McHugh J said: “That is really a staggering proposition. How can a trial be unfair if it is conducted in accordance with the law?” and “[I]f the legislature say that a trial is to be conducted without this evidence, it is obviously the legislative judgment that such a trial is not unfair. How can a court say it is unfair?”
where the law otherwise provides.119 Such rights are always compatible with clear existing laws,
leaving the scrutiny and interpretation regimes inapplicable and removing the law reform benefits that
flow from subjecting laws to the test in s 7(2).120

The potential failure of a human rights dialogue with respect to evidence law is not limited to the
judicial end of the conversation. Assuming that a court is willing to declare that part of the law of
evidence is incompatible with a human right, will the legislative and executive branches respond?
Australian evidence law has at least one celebrated example of governments responding to
rights-focused judicial criticism with both changed conduct and new statutes. In the 1970s and 1980s,
the High Court repeatedly dealt with appeals where the defendants claimed that evidence of
confessions they had allegedly made was the product of police “verballing”.121 Eventually in 1991, a
majority of the High Court, noting that some jurisdictions had begun recording all interviews with
suspects, held that the content of “the entitlement of an accused person to a fair trial according to law
... may vary with ... developments in technology” and stated that all jurors must be told of the court’s
view that convictions on the basis of uncorroborated confessions are dangerous.122 Within the next
five years, all Australian jurisdictions introduced recording equipment in police stations and enacted
statutes excluding confessions from suspects that are not evidenced by tape recordings of the whole
interview.123

However, this example of a dialogue between the judicial, legislative and executive branches of
government differs from one that would occur under the Charter in a crucial way: the High Court’s
1991 pronouncement was backed by a remedial measure – a mandatory jury direction – that would not
be available for legislation that is incompatible with a Charter right.124 In WA, the difference was
more stark, because the Executive initially refused to proclaim the legislation that the Parliament had

119 Compare the hypothetical that emerged at the conclusion of the High Court proceedings in PJE v The Queen [1996] HCATrans 353:
MR KINTOMANIS: If Parliament was to reintroduce the Test Act and deprive Roman Catholics of certain privileges
like giving evidence in court, so if you were stuck with a Roman Catholic witness you would be in difficulties, one
could not say that there would be a fair trial.
McHUGH J: Why not?
KIRBY J: It seems very unfair to me.
BRENNAN CJ: I think your time is up, Mr Kintominas. You are saved by the bell perhaps.
See also Berrigan v The Queen [1995] HCATrans 389, where McHugh J posed the following hypothetical: “[S]upposing the legislature said hearsay evidence is admissible in all criminal trials and it does not matter how removed the hearsay is. Could a court then say there is a miscarriage of justice because an innocent man may have been convicted; he has been convicted entirely on hearsay evidence; nobody has had a chance to cross-examine the person who is the source of this hearsay material?”; cf Military Commissions Act 2006 (USA), inserting 10 USC 47A, §§ 949A(b)(2)(E) (hearsay evidence) and 949D(f) (introduction of classified information).

120 Compare the High Court’s approach to the same New South Wales statutory provision during an appeal four years later, where the argument based on a fair trial was again raised: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [46]- [47]. The High Court held that the provision’s ban on “evidence of sexual experience ... and sexual activity” extended to evidence of non-consensual sex, making no reference to the court’s earlier unanimous view, in a case involving such evidence, that the operation of the provision required legislative attention (PJE v The Queen [1996] HCATrans 353): at [28]- [31], [67]-[70], [92], [124],
[146]-[147]. The result – a quite disturbing one in this author’s view – is that the defendant’s conviction for child sexual abuse was sustained even though he had been unable to present his primary defence theory. An expert witness who, after interviewing the complainant, had concluded that the account of abuse by the defendant was likely to be a transference from a much earlier episode of abuse at the hands of another.
121 See, eg Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517; Wright v The Queen [1909] ArgusLawRp 66; (1977) 15 ALR 305; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314; Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508.
122 McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 at 474-478, but see at 485-486, where Brennan J held that a new rule “designed to compel or to induce the executive government to enhance the administration of justice for which the executive government is responsible ... is more appropriate to the exercise of legislative power than it is to the exercise of judicial power”.
123 See Gans and Palmer, n 21, pp 498-505.
124 Charter, s 36(5); cf s 39(1).
enacted. This impasse was broken only when the WA Court of Criminal Appeal, after decrying theExecutive’s failure, announced its intention to exclude future confessions uncorroborated by tape recordings.125

Section 36(5)(b) of the Charter holds that “a declaration of inconsistent interpretation does not ... create in any person any legal right”. Rather, a declaration’s sole legal effect is that the minister responsible for the statutory provision must respond in writing within six months. Will Victoria’s Government do anything more if a declaration of inconsistent interpretation is issued in relation to a provision of Victoria’s evidence law? In the NSW rape shield case discussed above, the High Court, after rejecting the argument that courts can give effect to a view they form that an enacted statutory provision is unfair, added the following remark:

It is the unanimous view of the Court ... that the provisions ... clearly warrant further consideration by the legislature in the light of the experience of its operation.126

This pronouncement, while avoiding any reference to human rights, is nevertheless in many
respects analogous to (and was presumably intended to have a similar effect to) a declaration of inconsistent interpretation under the Charter. Significantly, the NSW Government’s response was to refer the rape shield provision to the NSW Law Reform Commission. The commission, noting the fundamental nature of the presumption of innocence and the right to a fair trial, recommended significant changes to the law.127

This sequence resembles exactly the sort of dialogue that the Charter is supposed to promote. However, nearly a decade later, none of the commission’s proposals have been implemented, with the government’s only reaction to date being a call for further research.128 More significantly, NSW’s rape shield provision remains on the statute books unaltered except for its location.129 It might be argued that this is entirely consistent with the kind of dialogue the Charter envisages, which leaves the final decision to the legislature.130 However, an alternative explanation lies in the political limits to law reform. Two other factors might have stayed the government’s hand. First, the commission’s proposals sparked furious responses from different lobby groups on criminal justice, which produced little if any
common ground.131 Secondly, NSW politics has long been locked in a series of “law and order” auctions, with rape defendants featuring as a recurrent source of moral panic.132
Arguably, the type of dialogue that the Charter envisages cannot occur in these circumstances.

So, the Charter has much to overcome if it is to promote evidence law reform that corresponds to the human rights in Pt 2. Courts may regard much of the law of evidence as inherently compatible with the core right to a “fair hearing” under s 24(1). Any declaration of inconsistent interpretation may lead to a discussion, but not a dialogue, because evidence law’s competing goals can produce intractable opposing views. Moreover, evidence law’s low priority on the agenda of Australian governments, especially where criminal defendants’ rights are concerned, may mean that no reforms follow. Notably, the major evidence law reforms in recent years, the model evidence legislation and sexual assault law reform, emerged not from a court-prompted human rights agenda, but rather as a traditional law reform response to outmoded common law jurisprudence.

125 Mallard v The Queen (unreported, WA Court of Criminal Appeal, No CCA 204 of 1995, 11 September 1996). The court refused to apply this rule retrospectively to the facts before it; cf Transcript of Proceedings, Mallard v The Queen (High Court of Australia, No P52/1996, 24 October 1997). Ten years later, Andrew Mallard joined the ranks of victims of Australian miscarriages of justice: Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125.
126 PJE v The Queen [1996] HCATrans 353.
127 New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report No 87 (1998).
128 Criminal Justice Sexual Offences Taskforce, Responding to Sexual Assault: The Way Forward (2005) p 61.
129 Criminal Procedure Act 1986 (NSW), s 293.
130 Compare Evans and Evans, n 49 at 271.
131 See Criminal Justice Sexual Offences Taskforce, n 128, pp 59-60, noting a “clear division” on the New South Wales Law Reform Commission’s central recommendation and the “unlikelihood of resolving this issue”.
132 See Hogg R and Brown D, Rethinking Law and Order (Pluto Press, 1998).
Paradoxically, the success of the model evidence law reforms may act as a further brake to the
rights-focused reform of Victoria’s law of evidence. The new Evidence Act 2008 is the product of an
inquiry by the Australian Law Reform Commission in the 1980s133 and has been adopted by the
Commonwealth Government (in a law applicable in the ACT) and in NSW, Norfolk Island and
Tasmania.134 Not only Victoria, but also the Northern Territory (NT) and WA are moving, to some
degree, towards adopting the legislation.135 While the initial impetus for the model legislation was to
improve upon the common law, the contemporary momentum is the drive to “harmonise” Australia’s
laws.136 As the NT Law Reform Commission observed in its brief report recommending adoption of
the legislation in that jurisdiction, failure to do so may leave non-adopters “stand[ing] out like an
outhouse [sic] in the desert”.137

This impact of the drive to uniformity on the rights dialogue is evident in Victoria’s adoption of a
provision protecting a defendant’s family members from being compelled to testify if doing so would
harm their relationship with the defendant, unless a judge provides otherwise. Despite the Charter’s
express right for Aboriginal persons “to maintain their kinship ties”, the provision is limited to close
family members.138 This discrepancy, unconvincingly justified in the statement of compatibility as
necessary to avoid this flexible provision’s application to “a very broad class of people”, is obviously
due to a concern to retain uniformity with jurisdictions that have no such imperative to consider
Charter rights.

The Evidence Act 2008’s goal of uniformity139 may also blunt the operation of the Charter’s
operative provisions. Consider the following mechanisms that exist to promote consistency across
jurisdictions that have adopted the legislation:
• in-statute notes detailing where provisions (which have common numbering across all the
statutes) differ from other jurisdictions;140
• joint participation of all jurisdictions (including jurisdictions yet to enact the legislation) in law
reform commission inquiries into evidence law;141
• a recommendation that no jurisdiction amend its legislation without that amendment being
approved by the Standing Committee of Attorneys-General;142 and
• court judgments favouring comity across jurisdictions that have adopted the legislation and
sympathetic development of the common law in jurisdictions that have not.143

133 Australian Law Reform Commission, Evidence, Report No 26 (1985); Australian Law Reform Commission, Evidence, Report No 38 (1987).
134 Evidence Act 1995 (Cth) (applicable in the Australian Capital Territory: s 4); Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2004 (NI).
135 Northern Territory Law Reform Committee, Report on the Uniform Evidence Act, Report No 30 (2006); Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Project No 92 (1999); cf Queensland Law Reform Commission, A Review of the Uniform Evidence Acts, Report No 60 (2005), p 8, noting “those provisions that would require further review if Queensland were to consider adopting the uniform Evidence Acts”; Australian Law Reform Commission, Submission to House of Representatives Standing Committee on Legal and Constitutional Affairs’s Inquiry Into Harmonisation of Legal Systems (2006) p 4, stating that it has been advised that South Australia’s Attorney-General has “placed the introduction of the uniform evidence legislation on [its] legislative agenda”.
136 House of Representatives Standing Committee on Legal and Constitutional Affairs, Harmonisation of Legal Systems Within Australia and Between Australia and New Zealand (2006) pp 155-160.
137 Northern Territory Law Reform Committee, n 135, p 12.
138 Evidence Act 2008 (Vic), s 18(2).
139 Evidence Act 2008 (Vic), s 1, describing the statute’s purpose as “to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law”.
140 Compare Evidence Act 2001 (Tas), s 2A.
141 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) pp 40-41.
142 House of Representatives Standing Committee on Legal and Constitutional Affairs, n 136, p 160.
143 See Gans and Palmer, n 21, pp 18-20.
Every time a Victorian court is compelled by the Charter to interpret a provision of the Evidence Act 2008 differently from the interpretation followed elsewhere, the Victorian statute will effectively be amended (without any in-statute note to that effect, joint law reform effort, approval by the Standing Committee of Attorneys-General, or broadly applicable court ruling).
Not only will this result in lack of harmonisation between Victoria and other Australian
jurisdictions, but there will also be disharmony within Victoria in two respects. One is that the
Evidence Act 1995 (Cth), applicable in all Federal Court proceedings within Victoria,144 will not be subject to the Charter, whereas Victoria’s statute, applicable in all State courts, including those hearing federal matters, will be. A second is that even the Victorian statute will potentially not be subject to the Charter with respect to some proceedings in State courts. This is the result of the Charter’s poorly drafted and conceived transitional provisions, which, while applying the Charter to all legislation, past or future,145 nevertheless provide that the “Charter does not affect any proceedings commenced or concluded” before 1 January 2007.146 One reading of this proviso is that the interpretation regime will not apply to such proceedings, even if they only come to trial several years after the Charter has commenced;147 so, once the uniform evidence legislation has commenced in Victoria, some
proceedings will be governed by that statute as modified by s 32(1), whereas others (especially in the legislation’s early days) will be governed by the unmodified version.
This unsatisfactory situation will, most likely, be ameliorated by one or more of the following
developments:
• courts applying s 32(1) may regard the “purpose” of uniformity in the model evidence legislation
as barring any divergent rights-compatible readings;
• the Supreme Court may exercise its discretion not to issue a declaration of inconsistent
interpretation in relation to the new Victorian evidence legislation, on the basis that such a
declaration would promote undesirable lack of uniformity across Australia;148 or
• the Victorian Government may refuse to enact legislation responding to such a declaration unless all other model evidence law jurisdictions also agree to do so.

These mechanisms (in addition to the features of the Charter noted in this article that dampen its effect on evidence law in any case) will almost certainly keep Victoria’s future evidence law largely in harmony with other jurisdictions. However, they will do so at the cost of failing to promote the Charter’s human rights in the settlement of factual disputes in Victoria.

CONCLUSION: RECOMMENDATIONS 34 AND 35

In an article on the origins of the Charter, George Williams, the Chair of the Human Rights
Consultation Committee, conceded that the journey from the Charter’s inception to its enactment was
a brief one:

The time frame was tight, with only six months given to consult with Victorians ... However, the

decision to provide only six months was both pragmatic and sensible. It was pragmatic because with a

144 Evidence Act 1995 (Cth), s 4(1).
145 Charter, s 49(1).
146 Charter, s 49(2). Compare the position under the Human Rights Act 1998 (UK), where the House of Lords sensibly
distinguishes between circumstances where a retrospective re-interpretation of legislation would have an “unfair result for one party or the other” from those where it will not: Wilson v Secretary of State for Trade and Industry [2003] UKHL 40; [2004] 1 AC 816 at [20].
147 Compare the Charter of Human Rights and Responsibilities Bill 2006 (Vic), Explanatory Memorandum, which provides that this subclause “means that the Charter may not be relied upon in any legal proceedings commenced before that date” (emphasis added). In R v Williams [2007] VSC 2; (2007) 16 VR 168 at [40]- [48], the Supreme Court held that a criminal proceeding commences when the defendant is first charged. The effect of this interpretation is any defendant first charged before 1 January 2007 cannot rely on the Charter in any trial, even one delayed for years or even decades (eg because an earlier trial miscarried or a conviction was quashed on appeal or a reference to an appeal court). (Note that the Explanatory Memorandum misstates the commencement date of Pt 2 as 1 January 2008, whereas the correct date is 1 January 2007: see s 2(1).) Compare the sensible position under the
Human Rights Act 1998 (UK), where the House of Lords has noted that the United Kingdom interpretation regime can be applied to “a post-Act criminal trial in respect of pre-Act happenings” as “[t]he prosecution does not have an accrued or vested right in any relevant sense”: Wilson v Secretary of State for Trade and Industry [2003] UKHL 40; [2004] 1 AC 816 at [21].
148 Compare Charter, s 35(2), providing that the Supreme Court “may” make a declaration.

Victorian election due in November 2006, a 12-month consultation would not have allowed time for the

implementation of any recommendations prior to the election. It was also sensible because six months

was sufficient time for an intense and busy process to determine if people were in favour of change and,

if so, generate momentum towards that end. There was a real possibility that a longer consultation may

have allowed any momentum generated by the process to dissipate.149

The political wisdom of this approach is evident in the fact that the Charter was enacted.
However, the costs of this approach are equally evident in the enacted Bill’s contents, drafted by the
committee apparently simultaneously with its extensive consultations across Victoria. Wherever one
stands on the need for a bill of rights or the desirability of the parliamentary rights model, there are
many significant provisions in the Charter that are inadequately justified and some that are
indefensible.

The committee, labelling the Charter “the beginning of a journey”, found that “regular reviews
are necessary to assess whether the Charter is working effectively”.150 So, the final two of its
35 recommendations were for automatic reviews of the Charter. The matters that the Charter states
should be included in the review all relate to the expansion of the Charter beyond the boundaries set
by the committee: adding additional rights protected by international treaties and augmenting the
Charter’s discrimination protection, its auditing processes and its remedy provisions.151 The review in
this article and the preceding one suggests that a more urgent case for change exists with respect to the
way the committee’s past decisions were implemented in legislative form.

The major problems identified are:
• the gap between the ICCPR’s procedural rights and those valued in Victoria’s evidence law,
notably the scope of the right to a fair hearing and the comprehensiveness of the privilege against
self-incrimination;
• the failure to appropriately excise the limiting provisions from the ICCPR’s rights, especially the
limits on the right to privacy and the exemption of Victoria’s laws from the scope of some rights;
• the unnecessary narrowness of Pt 3’s operative provisions, notably the interpretation regime’s
purpose limitation and the remedies regime’s focus on unlawfulness; and
• the unjustified and capricious exemption of Victoria’s courts (when acting judicially) from the
obligations regime.

These flaws, combined with the political barriers to a productive dialogue on human rights and
evidence identified above, will, if they continue to apply, greatly limit the positive impact of the
Charter on Victoria’s law of evidence (if not the complexity of proceedings to establish that impact).

The planned reforms of the Charter will occur in four-yearly intervals, so the first review will
most likely occur after Victoria has implemented the model evidence legislation. The committee was
probably correct in concluding “that one year would be too soon to have a worthwhile review of the
Charter”.152 However, there is also a danger that, in four-years time, these flaws of the Charter will
have become so entrenched in Victorian jurisprudence (and perhaps the statute books of jurisdictions
that follow the Charter’s approach) that reforms will be rejected on the basis of the need for
continuity, both within Victoria and across Australia. In this author’s view, that would be an
unfortunate result. It would be equally unfortunate if Victoria’s adoption of the model evidence
legislation during that time period, with its accompanying imperative of uniformity with other
jurisdictions, was to signal the end, rather than the beginning, of the rights-focused reform of
Victoria’s evidence law.

149 Williams, n 106 at 886.
150 Human Rights Consultation Committee, n 28, pp 135-138.
151 Charter, s 44(2).
152 Human Rights Consultation Committee, n 28, p 136.