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

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 [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) 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 [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.