Kortel v Mirik and Mirik  VSC 103 (4 April 2008) In this case, the Supreme Court was asked to consider the proper construction of s 6(2)(b) of the Charter, which provides that the ‘Charter applies to courts and tribunals to the extent that they have functions under Part 2’. Part 2 of the Charter enshrines a body of civil and political rights largely derived from the ICCPR. The issue arose in the context of the obligations of the Court to ensure a fair hearing to unrepresented litigants. The Court also considered the scope of the power of the Victorian Equal Opportunity and Human Rights Commission to intervene in a proceeding pursuant to s 40(1) of the Charter.
Cetin Mirik and Metin Mirik were convicted of serious crimes against Refik Kortel in February 2007. Mr Kortel subsequently applied for compensation under s 85B of the Sentencing Act 1991 (Vic). Although the Miriks were represented by Victoria Legal Aid in respect of their criminal charges, legal aid was refused in relation to the compensation application and they were therefore unrepresented. Mr Kortel was represented by senior and junior counsel.
In the context of the Miriks being unrepresented, a question arose as to whether, in hearing an application under the Sentencing Act, s 6(2)(b) of the Charter obliged the Court to take positive steps to ensure that the respondents received a fair hearing consistent with s 8 (right to equality before the law) and s 24 (right to a fair hearing) of the Charter.
On 28 March 2008, the Commission sought to intervene in the proceeding pursuant to s 40(1) regarding the proper construction of ss 6(2)(b), 8 and 24. Section 40(1) confers on the Commission a statutory right to intervene as a party in any proceeding in any court or tribunal ‘in which a question of law arises that relates to the application of this Charter’. The Attorney-General also sought to intervene pursuant to s 34(1), which is expressed in identical terms to s 40(1).
Following the filing of the notices of intervention, and by the time the matter came back on before Bell J, a grant of legal aid was made to the Miriks and they were represented by both Victoria Legal Aid and counsel at the hearing.
Justice Bell concluded that neither the Commission (under s 40(1)) nor the Attorney-General (under s 35(1)) had a right to intervene in the proceeding on the basis that the issue as to the ‘proper construction of s 6(2)(b) does not presently arise’. His Honour considered that, by consequence of the Miriks obtaining legal representation:
the potential application of the Charter to the court in this proceeding has no present practical implications… As the matter presently stands before me, I can see no respect in which the determination of the question advanced by the Commission – whether the Charter applies to the court in this proceeding by reason of s 6(2)(b) – will have any operative affect.
His Honour did acknowledge that the situation was different when the respondents were not represented, stating that:
At that time, a concrete question arose whether s 6(2)(b), properly construed, together with ss 8 and 24(1), put a positive obligation on the court to ensure a fair hearing by giving due assistance to the respondents as unrepresented litigants. If that question was answered in the affirmative, a question also arose as to the scope of that obligation. The argument (I say no more than that) is that the obligation that arises by reason of those provisions of the Charter is statutory and separate to the one that arises under the court’s general powers and duties. The resolution of the question turns on the proper construction of the expression ‘to the extent that they have functions under Part 2 and Division 3 of Part 3’ in s 6(2)(b), considered in the context of the objects and scheme of the Charter as a whole. As the respondents are now being legally represented, that question no longer arises.
Application of the Charter to the Courts under s 6(2)(b)
According to Bell J:
The question concerning the proper construction of s 6(2)(b) is one of fundamental importance, as counsel for all parties acknowledged. It lurks under the surface of the present case and may arise again depending on the course the proceeding takes.
As discussed above, s 6(2)(b) provides that the Charter applies to courts and tribunals ‘to the extent that they have functions under Part 2 (Human Rights) and Division 3 of Part 3 (Interpretation of Laws)’.
The view sought to be advanced by the Commission was that s 6(2)(b) of the Charter ‘requires the Court to give effect to any rights under Part 2 of the Charter in so far as those rights arise in relation to the matter the subject of the proceeding before the Court’.
This broad reading of s 6(2)(b) is consistent with the principles that human rights and human rights instruments should be interpreted so as to render their protections ‘real and effective’, not ‘theoretical and illusory’ (see, eg, Kijewska v Poland  ECHR 73002/01; Human Rights Committee, General Comment 31, -). It is also consistent with the principle that human rights impose positive obligations of conduct and result (see, eg, Savage v South Essex Partnership NHS Foundation Trust  EWCA Civ 1375; Human Rights Committee, General Comment 31, -).
Narrower readings of s 6(2)(b) should be rejected. As Evans and Evans note in Australian Bills of Rights: The Law of the Victorian Charter and the ACT Human Rights Act (2008), ‘if courts do not have direct obligations with respect to rights such as the right to a fair trial or the presumption of innocence, there could be serious gaps in the protection of human rights’ (see also R v Williams  VSC 2, -).
Commission’s Right to Intervene under s 40(1)
Although Bell J considered that the Commission had no right to intervene in the present proceeding, he did acknowledge the ‘fundamentally important’ role of the Commission in the protection and promotion of human rights under the Charter. In particular, he noted the independence of the Commission from government and that the ‘Commission’s statutory right to intervene in s 40(1) does not depend on the position taken by the parties in their submissions on this subject’; rather, ‘under the Charter, the court has an obligation to determine for itself whether such questions arise.’ His Honour also indicated that, had the question arising under the Charter remained live, he would have granted leave to the Human Rights Law Resource Centre to intervene in the proceeding.
There are very good policy reasons for this position. Human rights derive from the inalienable and inherent dignity of the human person; their enjoyment should not be conditional on whether a person or his or her representative seeks to invoke such rights. Indeed, as Bell J noted, ‘there may be all sorts of reasons why a party to a proceeding does not take advantage of human rights designed for their protection and therefore not raise such a question, or even dispute that one has arisen’. As examples, His Honour stated that a ‘party may be trying to juggle conflicting interests, may be vulnerable or may be subject to imperfect advice or improper influence’.
In the present case, for example, there was a potential conflict between Victoria Legal Aid in its capacity as solicitor for the respondents (in which capacity it may have advanced arguments under ss 8 and 24 of the Charter on behalf of the respondents) and in its capacity as a publicly funded statutory authority (with an arguable interest in limiting the scope of legal representation required to give effect to ss 8 and 24). Indeed, during the course of hearing, counsel for Victoria Legal Aid indicated that if the Court was disposed to considering the application of the Charter and the proper construction of s 6(2)(b), it would seek to be separately represented and intervene on the side of the Attorney-General against the Commission and the respondents. Ultimately, this issue did not arise as the change of circumstances ‘brought about by the grant of legal aid to the respondents’ rendered ‘the question whether s 6(2)(b) makes the Charter applicable to the court in the proceeding…purely theoretical and really not a positive issue at all.’
It is notable that this is the first case in which the Commission sought to exercise its power to intervene under s 40(1) and encouraging that, in light of the importance of the construction of s 6(2)(b), it was not deterred from intervening notwithstanding the serious convictions against the respondents. The enjoyment of human rights, and the Commission’s role in protecting human rights, must not be contingent upon how the issue may be depicted in the Herald Sun.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2008/103.html.
Philip Lynch is Director of the Human Rights Law Resource Centre