Human Rights Under the Charter

Foreword Program Day 1 Banco Court, with cocktail reception held in the Supreme Court Library Supreme Court of Victoria, 210 William Street, Melbourne Welcome to the Human Rights Under the Charter: The Development of Human Rights Law in Victoria conference. In an address to the Victorian judiciary shortly after the Charter commenced its operation in 2007, I said: [w]e have before us the opportunity to take the common law, foreign juris prudence and every ounce of our intellectual capacity to develop the first Australian jurisprudence of human rights law. 1 As we approach the Charter s eight-year review in 2015, it is timely to consider how we have taken up this opportunity. This conference provides an occasion to focus our consideration of how Victorian human rights jurisprudence has developed under the Charter. While the Charter influences all three arms of government, our focus is on the role of the Victorian judiciary. Each of the distinguished speakers will deliver a thorough analysis of the Charter s contribution to the understanding of human rights in Victoria, including discussion of the Charter as a tool of statutory interpretation, the obligations of public authorities, and the role of proportionality. Work on this conference began in mid-2013, when a small group of individuals explored the possibility of a conference with this purpose. I take this opportunity to thank the organisations which, with the Supreme Court of Victoria, brought this idea to fruition the Faculty of Law at Monash University (and the Castan Centre for Human Rights Law), the Judicial College of Victoria, Victoria Law Foundation, and the Human Rights Law Centre. I look forward to hearing from such a distinguished group of presenters as are gathered today, and hope that everyone present takes up this unique opportunity to explore how the Charter has informed human rights juris prudence in Victoria, and how it may continue to do so in the future. TIME 6.00pm 6.10pm 6.10pm 6.50pm 6.50pm 7.00pm 7.00pm SESSION DETAILS Welcome and introduction by the Hon. Chief Justice Marilyn Warren AC, Launching address: The international experience in human rights law Presented by: The Rt Hon. Chief Justice Dame Sian Elias GNZM, Chief Justice of New Zealand Questions and discussion Facilitated by: The Hon. Chief Justice Marilyn Warren AC, Cocktail reception The Honourable Marilyn Warren AC 1 The Hon. Chief Justice Marilyn Warren AC, Introduction to Human Rights Seminar: Opening Remarks (Speech delivered at the Judicial College of Victoria, Melbourne, 19 February 2007) http://www.supremecourt.vic.gov.au/home/contact+us/speeches/speech+-+introduction+to+human+rights+ seminar+-+opening+remarks+%28pdf%29 2 3

Program Day 2 Monash University Law Chambers, 555 Lonsdale St, Melbourne TIME SESSION DETAILS TIME SESSION DETAILS 9.00am 9.10am Opening statement 1.00pm 2.00pm Lunch Session 1 9.10am 10.00am Session 2 10.00am 11.15am by the Hon. Chief Justice Marilyn Warren AC, Keynote address: The role of judges in human rights jurisprudence: a comparison of the Australian and UK experience Chair and commentary: The Hon. Justice Geoffrey Nettle, Presented by: The Rt. Hon. Lord David Neuberger of Abbotsbury, President, Supreme Court of the United Kingdom Statutory interpretive techniques under the Charter (s 32) Chair and commentary: The Hon. Justice Chris Maxwell, President, Presenters: The Hon. Justice Pamela Tate, The Hon. Sir Anthony Mason AC KBE GBM QC, former Chief Justice of the High Court of Australia and non-permanent Judge of the Hong Kong Court of Final Appeal Session 4 2.00pm 2.45pm Session 5 2.45pm 3.45pm Proportionality in comparative analysis Chair and commentary: The Hon. Justice Michael Croucher, Supreme Court of Victoria Presented by: Professor Bryan Horrigan, Dean, Faculty of Law, Monash University Application of the Charter in legal practice: Criminal law Discrimination and equal opportunity Closed environments Children s rights Chair and commentary: the Hon. Justice Karin Emerton, Supreme Court of Victoria Panellists: Ms Jane Dixon QC, Mr Hugh de Kretser, Executive Director, Human Rights Law Centre 11.15am 11.45am Morning tea Associate Professor Julie Debeljak, Castan Centre for Human Rights, Monash University Session 3 11.45am 1.00pm Obligations of public authorities under s 38 of the Charter, including a consideration of the remedies available under s 39 Associate Professor Paula Gerber, Faculty of Law, Monash University Chair and commentary: The Hon. Justice Debbie Mortimer, Federal Court of Australia Presenters: The Hon. Justice Emilios Kyrou, 3.45pm 3.50pm 3.50pm 4.15pm Closing by the Hon. Chief Justice Marilyn Warren AC, Afternoon tea Mr Mark Moshinsky QC, 4 5

About the Presenters Justice Michael Croucher Supreme Court of Victoria Justice Michael Croucher was appointed as a Justice of the Supreme Court of Victoria on 30 July 2013. His Honour had previously been at the Bar since 1999, having taken silk in 2011. At the Bar, his Honour s practice comprised mostly criminal matters including appeals, occupational health and safety, assets confiscation, inquests and inquiries and professional disciplinary matters. While at the Bar, and prior to taking silk in 2011, his Honour appeared with two juniors in the High Court in the matter of Momcilovic v The Queen (2011) 245 CLR 1, the first (and, so far, only) case to go to the High Court on the validity and effect of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Hugh de Kretser Executive Director, Human Rights Law Centre Hugh de Kretser is the Executive Director of the Human Rights Law Centre, a leading national non-government organisation that protects and promotes human rights in Australia. Hugh was previously Executive Officer of the Victorian Federation of Community Legal Centres and Manager of the Brimbank Melton Community Legal Centre after starting his legal career at the corporate law firm Mallesons. Hugh holds a number of board and advisory roles including as a Director of the Victorian Sentencing Advisory Council and previously as a Commissioner of the Victorian Law Reform Commission. Associate Professor Julie Debeljak Castan Centre for Human Rights, Monash University Julie Debeljak has been an Associate Professor with the Faculty of Law at Monash University since 2013, and is a foundational Deputy Director of the Castan Centre for Human Rights Law (from 2000). Previously she was a Senior Lecturer (2007-2012), a Lecturer (2002-2006), and an Assistant Lecturer (1996-2001). Julie researches in the field of international human rights law, comparative domestic human rights law, constitutional law, and human trafficking. With Susan Kneebone, Julie co-authored the book Transnational Crime and Human Rights: Responses to Human Trafficking in the Greater Mekong Subregion (Routledge, 2012), and co-edited two collections on Human Rights in Closed Environments (one forthcoming). Jane Dixon QC Jane Dixon QC is the President of Liberty Victoria, one of Australia s leading civil liberties organisations. Jane has practiced at the for over 20 years. Her main fields of endeavour have been criminal and common law trials and appeals, coronial inquiries, environmental matters and some administrative hearings. She is frequently briefed in homicide trials and death in custody cases. She has participated in a number of cases with a strong human rights focus and has been retained by PILCH for a variety of matters including a rooming house inquest that led to changes in local laws and an anti discrimination case dealing with issues of religious vilification. Jane is Chair of the Pro Bono Committee of the and is a longstanding member of the Indigenous Lawyers Committee of the. She is a past recipient of a Women s Lawyers Achievement Award and a Pro Bono Scheme award. She is a member of the Criminal Bar Association and the Common Law Bar association. The Right Honourable Chief Justice Dame Sian Elias GNZM Chief Justice of New Zealand The Right Honourable Dame Sian Elias is the 12th Chief Justice of New Zealand and the first woman to be appointed to that office. She graduated from Auckland University with an LLB Honours Degree in 1970 and was admitted to the New Zealand Bar the same year. She studied at Stanford University, from which she graduated in 1972 with a Master s Degree in Law. Following her return to New Zealand, Dame Sian worked first as a solicitor and then as a barrister in Auckland. In 1984-1989 she was a member of the Law Commission working particularly on the reform of company law. In 1988, Dame Sian was appointed a Queen s Counsel. She appeared in a number of significant cases, including cases concerning the Treaty of Waitangi. She was awarded a Commemorative Medal in 1990 in recognition of services to the legal profession. In 1995, Dame Sian was appointed Judge of the High Court in Auckland. On 17 May 1999, she was appointed Chief Justice of New Zealand and was made a Dame Grand Companion of the New Zealand Order of Merit. The Chief Justice was appointed a Privy Councillor in 1999 and first sat on the Privy Council in 2001. When in 2003 the Supreme Court Act established a final Court of Appeal in New Zealand, the Chief Justice became the head of the new Supreme Court. That court began sitting in July 2004. When the Governor-General is unable to perform the functions of office or is absent from New Zealand, the Chief Justice is authorised and empowered to perform those functions as the Administrator of Government under the Letters Patent. 6 7

Associate Professor Paula Gerber Faculty of Law, Monash University Law School Associate Professor Gerber is a Deputy Director of Monash University s acclaimed Castan Centre for Human Rights Law, where she actively promotes human rights education. She has recently been involved in meetings between the Australian Human Rights Commission and the Australian Curriculum, Assessment and Reporting Authority to discuss how human rights can be incorporated into the new curriculum. She also sits on the board of the Victorian Equal Opportunity and Human Rights Commission, which is the statutory board responsible for promoting human rights in Victoria. Professor Bryan Horrigan Dean, Faculty of Law, Monash University Professor Bryan Horrigan became Dean of the Faculty of Law at Monash University in early January 2013. He was previously the Louis Waller Chair of Law and Associate Dean (Research) at Monash University s Faculty of Law in Melbourne, Australia. In that role, he established the Faculty s Commercial Law Group. Professor Horrigan has both academic expertise and professional experience in public and corporate law and governance from Australian, transnational, and cross-disciplinary perspectives. The Honourable Justice Emilios Kyrou Justice Emilios Kyrou is a Justice of the Supreme Court of Victoria. He was appointed to the Court of Appeal on 29 July 2014. As a judge of the Trial Division, he was one of two judges in charge of the Court s Judicial Review and Appeals List. He has decided a number of cases involving the Charter of Human Rights and Responsibilities Act 2006, including Magee v Delaney [2012] VSC 407, which concerned the right to freedom of expression, and DPP v Debono [2013] VSC 407, which dealt with the right to a fair trial and the right not to incriminate oneself. The Honourable Sir Anthony Mason AC KBE GBM QC Former Chief Justice of the High Court of Australia; non-permanent Judge of the Hong Kong Court of Final Appeal Sir Anthony Mason was a Justice of the High Court of Australia from 1972 to 1987 and Chief Justice from 1987 to 1995. He was Commonwealth Solicitor-General from 1964 to 1969 and a Judge of the NSW Court of Appeal from 1969 to 1972. He has been Chancellor of UNSW, National Fellow at the Research School of Social Sciences at the ANU, a Judge of the Supreme Court of Fiji and President of the Solomon Islands Court of Appeal. In 1996-1997 he was Arthur Goodhart Professor in Legal Science at Cambridge University. Since 2001 he has been Distinguished Visiting Fellow at the ANU College of Law. Sir Anthony has been a non-permanent Judge of the Hong Kong Court of Final Appeal since 1997. Sir Anthony holds Honorary Doctorates from the Australian National University and Sydney, Melbourne, Monash, Griffith and Deakin Universities, UNSW and the Universities of Oxford and Hong Kong. The Honourable Justice Chris Maxwell President,, Justice Maxwell commenced practice at the Bar in 1984 and was appointed Queen s Counsel in 1998. He practised mainly in constitutional and administrative law. In 1994, he was counsel assisting the Judicial Inquiry into the Australian Secret Intelligence Service. In 2003-4, he undertook a review for the Victorian Government of the Occupational Health and Safety Act 1985. The recommendations of that review were implemented in the Occupational Health and Safety Act 2004. Justice Maxwell was appointed President of the Court of Appeal in July 2005. The Honourable Justice Debbie Mortimer Federal Court of Australia Justice Debbie Mortimer was appointed to the Federal Court in July 2013, based in Melbourne. Prior to her appointment, she was a member of the and was appointed Senior Counsel in 2003. She remains a Senior Fellow at Melbourne Law School and a member of the Advisory Board of the Centre for Comparative Constitutional Studies at Melbourne Law School. Mark Moshinsky QC Mark Moshinsky is a Queen s Counsel at the specialising in constitutional and administrative law. He also practises in the areas of taxation, superannuation, competition law, private international law and human rights. In addition, Mark has appeared in a variety of commercial cases. Mark appears regularly in the Supreme Court of Victoria and the Federal Court of Australia. The Honourable Justice Geoffrey Nettle Justice Geoffrey Nettle commenced his legal career at Mallesons in 1976 and in 1981 became a partner. He signed the Roll in 1982 and took silk in 1992. Whilst at the Bar, his Honour s core practice was in commercial law, but he also practised in the areas of constitutional and administrative law, trade practices law, corporations law, property law and common law. Justice Nettle was appointed a Judge of the Supreme Court Trial Division in July 2002. He was subsequently appointed to the Court of Appeal in June 2004. 8 9

The Right Honourable Lord David Neuberger of Abbotsbury President, Supreme Court of the United Kingdom The Rt. Hon. Lord Neuberger of Abbotsbury was called to the Bar by Lincoln s Inn in 1974 and made a Bencher in 1993. He was appointed as a Queen s Counsel in 1987, and his first judicial appointment was as a Recorder. He has served as a High Court Judge in the Chancery Division and was the Supervisory Chancery Judge for the Midland, Wales and Chester and Western Circuits. In 2004 he was appointed as a Lord Justice of Appeal and in 2007 appointed as a Lord of Appeal in Ordinary (a Law Lord ) and given a life peerage. He was Master of the Rolls from 1 October 2009 and was sworn in as President of the Supreme Court of the United Kingdom on 1 October 2012. The Honourable Justice Pamela Tate Justice Pamela Tate was appointed as a Judge of the Court of Appeal of the Supreme Court of Victoria on 14 September 2010. She had previously been the Solicitor- General for Victoria for 7 years, having taken Silk in 2002. While Solicitor-General she was appointed Special Counsel to the Human Rights Consultation Committee that recommended the enactment of the Charter of Human Rights and Responsibilities Act 2006. At the private Bar she specialized in administrative and constitutional law. She appeared regularly in constitutional law cases before the High Court and in constitutional and public law cases before the Supreme Court. Before studying law she undertook postgraduate study in Philosophy at Oxford University. The Honourable Chief Justice Marilyn Warren AC Chief Justice Warren has been a Supreme Court judge for fifteen years. In 2003, she became the first female Chief Justice in Australia. In her ten years as Chief Justice, she has adopted a number of innovative approaches to promote openness and accessibility in the Victorian justice system, including court reforms and a new communications strategy. Chief Justice Warren has sat on a number of human rights charter cases since 2008. 10 11

Telephone +613 9032 0555 Facsimile +613 9032 0500 info@judicialcollege.vic.edu.au Twitter: @JudicialCollege www.judicialcollege.vic.edu.au Cover Image: Sarah Anderson Photography