FORMER NSW Premier Bob Carr and the cohort of conservative commentators who are wary of judges usurping elected representatives if we have a charter of rights should read a judgment brought down by the High Court this week.
The case was not a typical “rights” case – involving, say, speech, religion, arrest, legal representation. Rather it was a case about a publican’s duty to intoxicated customers. Nonetheless, the case was an exquisite exercise of the court balancing a whole series of rights and duties, and shows, like many other cases, that citizen’s rights are more – not less – likely to be safer in the hands of a reasoning judiciary than at the mercy of the often populist, intemperate and executive-controlled legislature.
The case was about Shane Scott who was drinking at a pub in Tasmania. A friend arranged that the motor cycle he was riding be locked up and the keys be left with the publican. Scott’s wife was to be called later to pick him up. After seven or eight drinks he demanded the motor bike keys and got abusive when the publican asked for the phone number to ring his wife.
Eventually the publican handed over the keys. Scott drove off and was killed when the bike ran off the road. His alcohol reading was 0.253.
Mrs Scott sued the publican for negligence. She lost at trial but won in the Tasmanian Court of Appeal.
To win she had to show the publican owed her husband a duty of care which was breached by his negligence.
The High Court held there was no duty of care in these circumstances and even if there had been, it had not been breached and even if it had been breached, the breach did not cause the death. Too many other intervening factors had to be considered.
In coming to that conclusion it balanced quite a few rights and duties. Scott had the right to possession of the motor cycle and the publican had no right to keep it. Indeed, it would be unlawful to do so.
The publican had a duty to keep order in his premises. He would only have added to Scott’s abusive behaviour if he had not surrendered the keys.
To require the publican to seize and keep the keys or to use force to restrain Scott would breach other rights and duties: the right to freedom of movement; the duty not to detain other people’s goods; the duty not to assault people or unlawfully detain them.
The court carefully and dispassionately weighed up these competing rights and duties. One may not agree with the result. I, and probably many others, have forcibly taken and kept car keys from friends or relatives for their own good, reasoning that exposing oneself to being sued for the tort of detinue (withholding someone’s goods) is far less a worry than having a friend or relative kill or injure themselves or others on the road. But whether one has a DUTY to impound someone else’s goods is another matter.
However, few would cavil with the way the court went about the job of weighing up the rights and duties. On the other hand, many would object to both the process and the result of the post 9/11 rush by the legislature and executive to abandon civil-liberties safeguards to pursue the “war on terror”.
The case also runs counter to the argument that the judges and a charter of rights would disempower the legislature and cause a riot of legal action that would only benefit lawyers.
The court was very keen to clarify a difference between NSW and Tasmania so that people would not pursue hopeless claims or be vexed by unnecessary litigation. The court also made it quite clear that it should not rush in and rework the prevailing balance of rights and duties, reducing the right to have one’s property and person free from interference in favour of forcibly caring for drunken patrons.
“They are torts which ought not to receive significant reduction in scope unless the legislature sees fit,” the court said.
The ACT and Victoria have charters of rights. The legislature can make laws which infringe the rights in those charters, but must explain why it is doing so. Judge are required to point out if a law breaches the charter and the legislature can either change the law or affirm it. Judges are required, all other things being equal, to interpret the law in a way consistent with the charter.
The Victorian and ACT experience has not been a deluge of rights litigation. Nor has it been one of power-hungry judges making up rights willy nilly.
Rather the experience has been that the legislatures have been more conscious of human-rights questions. And that is no bad thing.
The Scott case posed difficult questions about the balance between property and personal freedom against the scope of the duty of others to prevent people from harming themselves.
The courts are well-equipped to deal with these questions – perhaps better equipped than legislatures whipped up by fear and populism. A charter of rights would hose legislatures down a bit and force them to justify themselves a bit better.
It may be that the conservatives who usually decry what they call “judicial activism” would be content with the way judicial activism worked in the Scott case so they stayed uncharacteristically silent. The case was a part of recent trend in winding back the march of negligence law which hitherto had been holding an ever wider group of people responsible for other people’s personal injury and death – particularly council’s liability over footpaths, beaches and bridges.
Usually if judges decide something they way conservatives don’t like – finding for the punter against the money and the insurance companies, for example — they cry “judicial activism” or “foul”.
But really it is just judges doing their job.
And when you look at the way the judges did their job in this case, as in nearly all cases in the Australian higher courts, we should have little to fear and much to gain from a charter of rights in a form similar to that recommended last month by the National Human Rights consultation chaired by former Bill of Rights sceptic Father Frank Brennan.
CRISPIN HULL
This article was published in The Canberra TImes on 14 November 2009.