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

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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.

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


• 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

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


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 [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.
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

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) 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

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) 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) 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) 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) 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


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) 159 CLR 45.

25 Charter, s 24(1).

26 Charter, s 25(2)(d) and (j).

27 Phillips v The Queen (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” (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) 189 CLR 51 at 112; Lange v Australian Broadcasting Corp (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) 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) 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) 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

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