The New Charter

R v Momcilovic [2010] VSCA 50 certainly merits a second break from my break from blogging. The most obvious reason is that it announces the very likely (but not certain) prospect of the first ever declaration of inconsistent interpretation under Charter s. 36:

THE COURT OF APPEAL DECLARES THAT:

Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) cannot be interpreted consistently with the presumption of innocence under section 25(1) of the Charter.

This’ll be (and indeed is) an Australian first, but let’s not get too carried away. It will not be the first time an Australian law has been officially declared:

  • to be incompatible  with human rights. See here.
  • to be incompatible with international human rights. See here.
  • to be incompatible with international human rights under a domestic law. See here.
  • by a court, to be incompatible with international human rights under a domestic law. See here.
  • by a court authorised to make such a declaration , to be incompatible with international human rights under a domestic law. See here.

Rather, it will be the first time that a court authorised to do so declares that an Australian law is incompatible with international human rights under a domestic non-equal-opportunity law. And, even then, such a declaration was nearly made over a decade ago (and it would have been much more consequential than this one.) Regardless, the court’s finding that DPCSA s5, Victoria’s unique and nasty ‘deemed possession’ provision, is incompatible with the right to be presumed innocent is both a statement of the bleeding obvious and a relief. Indeed, with the shameful exception of the Attorney-General, it’s also a finding that everyone agrees with, including (as it turns out) the prosecution.

But what is much more surprising is the VCA’s finding that this shame could not be interpreted away. The real importance of Momcilovic isn’t its findings about either Charter s. 25(1) or DPCSA s5, but instead its complete reworking of two of the Charter’s core provisions: Charter s. 7(2) (on reasonable limits) and Charter s. 32 (on interpretation.) Until now, the vast majority of decisions, writings and advocacy about the Charter have argued furiously that these two provisions act in combination so that  all Victorian statutory provisions are liable to be manipulated by their readers to bring them into line with a test of reasonableness founded on international standards of rationality, proportionality and liberal democratic values. In other words, it’s been claimed that, since it came into operation on 1/1/8, the Charter has injected a legally obligatory human rights culture into the entire field of Victorian regulation. Doctrinal positions (and PR blather) to this effect about the Charter’s operative provisions have been repeatedly advocated in particular by the Attorney-General’s lawyers, VEOHRC and the human rights sector, and such an operation of the Charter has also been assumed by critics of such statutes. It’s a reading of the Charter that I have repeatedly criticised in this blog.

And now, unless there’s a (successful) appeal or revisiting of the issue, this approach is dead. The new approach is set out at [35]:

(1) Section 32(1) does not create a ‘special’ rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question.

(2) Accordingly, when it is contended that a statutory provision infringes a Charter right, the correct methodology is as follows:

Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).

Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.

Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.

The key rejections of the alternative approach are at [101]-[102]:

In the view we have taken, s 32(1) has the same status as (for example) s 35(a) of the Interpretation of Legislation Act 1984 (Vic). It is a statutory directive, obliging courts (and tribunals) to carry out their task of statutory interpretation in a particular way. It is part of the body of rules governing the interpretive task. Compliance with the s 32(1) obligation means exploring all ‘possible’ interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights. What is ‘possible’ is determined by the existing framework of interpretive rules, including of course the presumption against interference with rights.

and at [105]-[107]:

[O]ur conclusion that s 32(1) is not a ‘special’ rule of interpretation reinforces our view that justification becomes relevant only after the meaning of the challenged provision has been established… It is that the emphatic obligation which s 32(1) imposes – to interpret statutory provisions so far as possible compatibly with Charter rights – is directed at the promotion and protection of those rights as enacted in the Charter. We reject the possibility that Parliament is to be taken to have intended that s 32(1) was only to operate where necessary to avoid what would otherwise be an unjustified infringement of a right.

In Momcilovic, Court of Appeal President (and ex leader of Liberty Victoria) Chris Maxwell, David Ashley (a commercial lawyer who recently emerged as the only Victorian judge honest enough to admit that Peter Dupas can never get a fair trial in Victoria) and (ex-academic and law reform commisioner) Marcia Neave held that not only do Charter ss. 7(2) and 32 make no dramatic changes to Victoria’s legal system, but they don’t have anything to do with eachother.  Charter s. 32, far from being an outsourcing of Parliament’s lawmaking role to anyone who reads a statute, is simply a tool for assisting those readers in understanding Parliament’s words and intent. And Charter s. 7(2), far from being a legally enforced new culture that envelops anyone who is affected by a Victorian statute, is instead just a tool for assessing (and not re-interpreting) laws by the same two bodies that are responsible for them in the first place: Parliament and the courts.

Why reject the broader conception of the Charter? Because:

It is an interpretation of the [Charter] depending on an implication which is formed on a vague, individual conception of the spirit of the compact, which is not the result of interpreting any specific language to be quoted, nor referable to any recognized principle…., and which, when started, is rebuttable by an intention of exclusion equally not referable to any language of the instrument or acknowledged… principle, but arrived at by the Court on the opinions of Judges as to hopes and expectations respecting vague external conditions. This method of interpretation cannot, we think, provide any secure foundation for… State action, and must inevitably lead—and in fact has already led—to divergencies and inconsistencies more and more pronounced as the decisions accumulate…. But we conceive that [overseas] authorities, however illustrious the tribunals may be, are not a secure basis on which to build fundamentally with respect to our own [Charter]. While in secondary and subsidiary matters they may, and sometimes do, afford considerable light and assistance, they cannot, for reasons we are about to state, be recognized as standards whereby to measure the respective rights of [Victorians] and [Victoria] under the [Charter].

No, that isn’t from Momcilovic, but a much earlier landmark case about another major statute that Australia received from overseas.

Momcilovic is the Charter’s Engineer’s case. What the Victorian Court of Appeal has held in Momcilovic is exactly what this blog has being saying all along: that the Charter is just a statute and, in particular, a bunch of (often) disparate provisions. Neither its pompous title, nor its illustrious forebears, nor its often opaque drafting change that. The  Charter’s meaning is not to be read subject to the murky political imperatives that led to its development, drafting and enactment. It isn’t to be read in light of the views or hopes of its founding mums and dads, no matter what they say. Its provisions don’t combine mystically to achieve greater goals. Not unless those provisions themselves say so. Courts should just read the provisions the way they read any statute: by reading the words, pondering their context and looking through the pertinent extrinsic materials.

Hopefully,the pre-Momcilovic era of the Charter, partially chronicled in all its hideous detail on this blog, will soon be as forgotten as the pre-Engineers era of the Constitution. See ya later Ghaidan, and RJE, and Kracke, and FRED. The Charter is dead. Long live the Charter (perhaps.)

So, what does this all mean for the Charter’s various stakeholders? I’ll discuss them in turn.

Charter nerds

Let’s start with those folks who’ve actually read the whole Charter carefully and thought about it. That’s actually a distinct minority of the people who opine about human rights in general or the Charter in particular (including, as has become apparent in this blog, a good portion of Victoria’s judiciary.)

The big news for us Charter nerds is that Momcilovic has completely rejected three classic and oft-cited overseas judgments on parliamentary rights statutes:

  • Poplar (a UK case holding that provisions like Charter s. 32 are weird and different and should be applied only after the usual law fails);
  • Ghaidan (a UK case holding that provisions like Charter s. 32 gives judges quasi-legislative powers)
  • Hansen (a NZ case holding that provisions like Charter s. 7(2) reduce all human rights into reasonable human rights, and hence all legal effects of rights statutes into exercises in assessments of reasonableness)

Rather, the only overseas judgement that has found favour in Victoria is Elias CJ’s concurring judgment  in Hansen.  This rejection  of the orthodoxy is stunning in part because these same cases have already been endorsed by a number of the VCA’s brethren, including Chief Justice Marilyn Warren, outgoing VCAT prez Kevin Bell, Geoffrey Nettle, Mark Weinberg, Paul Bongiorno and, curiously, Maxwell himself. In rejecting Poplar and Ghaidan, the VCA abandoned numerous luminaries from the House of Lords and UK Supreme Court in favour of the more cautious approach of the UK’s Lord Millett and the present New Zealand Supreme Court, who all emphasised the central role of Parliament and traditional interpretation in upholding the rule of law. Also cited repeatedly to this effect were various judges of Australia’s High Court.  (The rejection of Ghaidan by the ACTCA (who?) in Fearnside got a scandalously brief mention.)  In rejecting Hansen, the VCA cited Elias CJ and also, interestingly, Victoria’s own Acting Special Counsel for Human Rights, Claudia Geiringer, whose own analysis of Hansen got a very big tick.

Beyond these authorities, the VCA also relied on the many differences between Victoria and the UK, notably the latter’s subjection to an enforceable supranational rights court, creating imperatives that don’t exist in Australia or New Zealand. Most importantly, though, they relied on the words of Victorians: the words of Charter s. 32 (including its use of ‘interpreted’, rather than ‘read and given effect’, which I have highlighted on this blog), the Charter’s explanatory memoranda and, especially and at length, the words of Charter’s own proponents, both in the Community Consultation and in Parliament, in 2006 when members of the government lined up assure the worryworts that the Charter won’t revolutionise our system of government. Isn’t it annoying when someone pays attention to your say, rather than what you mean?

This blog has long railed against Poplar and Ghaidan, on much the same grounds as the VCA gave (not that Charterblog got a mention. Sniff.) On the other hand, I’m surprised (if not entirely dismayed) by the rejection of Hansen, which held that the interpretative mandate is limited to laws that unreasonably limit rights. Instead, the VCA held, Charter s. 7(2) should be ignored altogether when applying Charter s. 32. My surprise is because I think there are significant textual and conceptual reasons to treat Charter s. 7(2) as inseparably linked to the human rights listed in Part 2 (and hence to Charter s. 32’s imperative to interpret statutes compatibly with human rights.) Here are the textual reasons.

3 ‘human rights’ means the civil and political rights set out in Part 2.

7(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

In short, ‘human rights’ refers to all of Part 2, including Charter s. 7(2). Amazingly, the VCA didn’t do any analysis of the oft-debated term ‘compatibly with human rights’ that appears (amongst other places) in Charter ss. 32(1) and 38(1) and arguably supports the Hansen approach, which distinguishes between limiting rights and acting compatibly with them. (Nor do they address the inconsistent terminology in Charter s. 36(2), which refers to a provision that cannot be interpreted ‘consistently with human rights’, arguably providing a hook for the anti-Hansen approach.) The further, conceptual reason for my suprise is that a lot of the Part 2 rights have their own internal limits (either express or implied because of a conflict with other rights) and it seems weird to me that Charter s. 7(2)’s comprehensive test of reasonable limits is somehow divorced from all of that. The interaction between internal rights limits and Charter s. 32 doesn’t arise under the human rights at issue in Momcilovic - Charter s. 25(1) – and is an unacknowledged major piece of unfinished business in the ruling.

That being said, I’m not at all dismayed about the rejection of Hansen, because as I’ve also pointed out, Elias CJ’s sense that a ‘bill of reasonable rights’ is nothing more than an exercise in self-congratulation and box-ticking was well bourne out by the Charter’s pathetic first operative year. (I was lucky enough to meet Sian Elias at the 2008 Protecting Human Rights conference: yes, the one where I gave that speech . One memorable thing about her was that, but for her nametag, you’d never pick that she was a judge at all. (I mean that as a big compliment.) She gave a (alas, not that memorable) speech at the conference but also came to the dinner later (also attended, interestingly, by Marcia Neave.) She has an excellent ear for justice, in particular for the way that seemingly protective discretionary rules can transform into exercises in self-legitimation.) Another reason I’m happy is that the ruling in Momcilovic also seems to give tremendous support to my quirky view that Charter s. 38(1) – the conduct mandate – is not subject to s7(2) either.  The VCA’s reasons for rejecting Hansen – that lay readers of the Charter lack the capacity to make the complex assessments required by Charter s. 7(2) – seem directly applicable to public authorities, don’t they?

Apart from those big picture points, Momcilovic also is of interest for its application (or non-application) of some of the picky bits of the Charter:

First, the revelation of yet another stupid Charter provision:

36(3) If the Supreme Court is considering making a declaration of inconsistent interpretation, it must ensure that notice in the prescribed form of that fact is given to the Attorney-General and the Commission.

Pursuant to Charter s. 36(3), the VCA didn’t actually makes a declaration of inconsistent interpretation, but instead merely issued such a notice to the A-G and VEOHRC that it was thinking of doing so. This is absurd, as both recipients of this notice were already parties to the case and were well aware that one possibility was that the VCA would determine that DPCSA s. 5 was incompatible with Charter s. 25(2) and that couldn’t be magicked away by Charter s. 32. Moreover, not only was the notice unnecessary, but it was also pointless. Charter s. 36(2) entitles the VCA to issue a declaration once it has found that a Victorian statutory provision cannot be interpreted consistently with a Charter right, and that’s already happened. So, what’s the point of notice at this late stage? An ambiguity in Charter s. 36(3) is when, exactly, the VCA is to be regarded as ‘considering’ making a declaration. Is it before or after it makes its finding about inconsistency? Who knows? (Come to think of it, Momcilovic‘s rejection of Hansen surely implies that a Charter s. 36(3) notice should be issued before the Supreme Court assesses whether a statutory provision meets the Charter s. 7(2) test. Oops.)  Anyway, now that the pre-declaratory notice has been issued, can the A-G and VEOHRC make further submissions on that finding? Or are they limited to making submissions on the residual discretion in Charter s. 36(2), which only provides that the SC ‘may’ make a declaration, rather than requiring it to do so. There’s some law on this from the UK, where some courts have declined to make declarations, e.g. in moot cases. But what possible reason would there be to not make a notice in this case? A woman stands convicted under a law that is incompatible with her human rights, for chrissakes.

[EDIT: The declaration was reportedly made on Thursday 25th March.]

Second, there’s the cumbersome mechanism for a human rights dialogue that is now in train:

36(4) The Supreme Court must not make a declaration of inconsistent interpretation unless the Court is satisfied that (a) notice in the prescribed form has been given to the Attorney-General and the Commission under subsection (3); and (b) a reasonable opportunity has been given to the Attorney-General and the Commission to intervene in the proceeding or to make submissions in respect of the proposed declaration of inconsistent interpretation.

(6) The Supreme Court must cause a copy of a declaration of inconsistent interpretation to be given to the Attorney-General- (a) if the period provided for the lodging of an appeal in respect of the proceeding in which the declaration was made has ended without such an appeal having been lodged, within 7 days after the end of that period

(7) The Attorney-General must, as soon as reasonably practicable, give a copy of a declaration of inconsistent interpretation received under subsection (6) to the Minister administering the statutory provision in respect of which the declaration was made, unless the relevant Minister is the Attorney-General.

What century was this written in? Instead of the A-G, you know, just reading the fracking judgment on Austlii, the VCA has to wait until the expiry of the appeals period (28 days for High Court special leave applications) and then, if there’s no appeal, it has a week to deliver the declaration to the A-G – What are they going to do? Wait for it to float up Bourke St during a hail storm? – and then the A-G must give the declaration ‘as soon as reasonably practicable’ to the relevant Minister, unless (as appears to be the case here) the A-G is that Minister.  A human rights dialogue in ultra-slow motion.

And then there’s a further wait:

37 Within 6 months after receiving a declaration of inconsistent interpretation, the Minister administering the statutory provision in respect of which the declaration was made must-  (a) prepare a written response to the declaration; and  (b) cause a copy of the declaration and of his or her response to it to be- (i) laid before each House of Parliament; and (ii) published in the Government Gazette.

So, the Charter gives the A-G half a year to draft and publish what may well be a two sentence (or, perhaps, a two word) response. And that period only begins once the declaration formally lands in his pigeon-hole.

So, when is the A-G’s Charter homework due?  If there’s a special leave application to the HCA – on which more below – then the clock won’t start ticking until that is determined (a couple of months) and it will tick even longer if leave is granted and will never tick at all if the appeal succeeds. Things get trickier if there is no application and the appeal period expires, because the due date for the A-G’s response depends on how soon the declaration is made. Under Charter s.36(4)(b), the VCA has to allow a ‘reasonable opportunity’ for submissions – two days? two weeks? two months? – and then it has to deliberate. Even if a declaration was somehow made next week, then the clock wouldn’t start ticking until late April and that means it won’t stop ticking until the end of October. Any later, and it’ll be ticking after Parliament dissolves on 2 November 2010 (25 days before the coming fixed-term election.) And, regardless, it’ll still be ticking after the last scheduled sitting on 7 October 2010. So, does that mean the A-G is off the hook for this year? I don’t think so (though reasonable minds could, alas, differ) because Charter s. 37 requires a response ‘within 6 months’, so he can – and if there’s no choice, he should – just do it before the six months are up (or, alternatively, he could at least make the required publication in the gazette, which he can do anytime at all, or Parliament could even be recalled anytime except November.) Not that Charter s. 37  is enforceable anyway. But, if the A-G wants to put a response off until after the election, then special leave is his best option. (As will be noted below, Vera Momcilovic herself will almost certainly do this for him anyway.)

[EDIT: With the declaration actually being made surprisingly quickly on Thursday 25th March, the 28 day special leave period will expire on 22nd April.

If no application is made, then the six month clock starts ticking as soon as the A-G receives the declaration. That has to occur by 29th April, but could occur anytime 'within' that period. (It'll either be the 22nd, 23rd, 27th, 28th or 29th, as the other days are weekend or the ANZAC Day make-up holiday.) That means that the six months will be up between 22nd October and 29th October, safely before the dissolution of Parliament, but long after the last scheduled sitting on October 7th.The first sitting after the declaration reaches the A-G's desk is 4th May, but that's budget day. So, we may get the A-G's response on any sitting day between 5th May and October 7th.

If an application is made, then it will most likely be heard on June 18th. In the unlikely event that special leave is denied, then the declaration will reach the A-G by June 25th and a response will be due on January 25th, which is before the first sitting day of the new Parliament. So, the A-G will again have to respond between June 22nd and October 7th. If special leave is heard and rejected on May 28th, then the response will come between June 8th and October 7th. If special leave is heard and rejected on July 30th, then the s36(6)(a) expiry will occur on February 7th, which will make it possible for the response to be left to the next Parliament (which, if it follows the 2010 pattern, will sit in the first of February) and whoever happens to be the A-G then. Obviously, if special leave is granted - the most likely scenario, surely -  then the timetable will inevitably slip further into 2011, making a response by the next government more likely.]

And there’s another possible wildcard: Charter s. 49(2). Yes, the infamous Charter ‘transitional provision’ that will never die. The big question I’ve been wondering ever since I heard about this case is: what year was Vera Momcilovic charged? We know from the sentencing remarks that she was arrested on 12 January 2006, so it seems to me that it’s pretty damn likely that she was charged in 2006. And, on prevailing authorities, that means that the Charter ‘does not affect’ her later prosecution. Interesting, hey? Unless it turns out that she wasn’t charged until 2007 for some reason, then it looks like the whole case was a mistake, wasn’t it? Wouldn’t be the first misapplication of Charter s. 49(2) of course, as readers of this blog well know. But here’s a thought: maybe the A-G can pull a swifty and raise Charter s. 49(2) now, in response to the Charter s. 36(3) notice? Oooooh. But they wouldn’t do that. They’re model litigants.

Lawyers

So, what’s the take for the people who don’t read the Charter six times a day and just want to know what the law is now? Well, the main take is that a lot of previous Charter cases are now wrong.

The rejection of Poplar means that a couple of key cases were wrongly reasoned. The most notable instance is RJE, where two judges of the Court of Appeal, including (interestingly) Maxwell himself, ridiculously dodged applying the Charter in a case involving Victoria’s politically ultra-sensitive sex offender ‘monitoring’ law. The majority’s decision to reinterpret that law without reference to the Charter is now clearly incorrect. Also incorrect was Nettle’s initial attempt to do the same. But the result of RJE still stands, because Poplar’s ‘ordinary interpretation first, human rights second’ approach doesn’t actually change the results of cases, just the reasons for them. Another case that is similarly wrongly ‘reasoned’ is Barbaro, an especially idiotic VCA decision from last year, where the court simply declared that the Charter has no impact on bail decisions (without even bothering to say why that is. Apparently, the A-G’s lawyers provided reasons that were so convincing that they didn’t even need to be described!) Whatever. Barbaro‘s take-home message – ‘the Charter did not require any departure from the existing approach to the treatment of delay as an issue in bail application’ – appears to be a Poplarite heresy, because Momcilovic has now held that the Charter’s interpretation rule must always be considered when interpreting every Victorian statute. Interestingly, that was another judgment Maxwell joined in. I wonder what happened to him on the road to Momcilovic? A suspect it might have something to do with who’s sharing his donkey cart.

Momcilovic‘s rejection of Ghaidan is much more significant, as it means that a handful of cases where rights claimants had a Charter victory might actually have been wrongly decided. The most important example is Major Crimes. Warren (wrongly) followed Poplar, but that was neither here nor there. The big question is whether the major outcome of that case – Warren’s ‘interpreting’ s. 39 of the Major Crimes (Investigative Powers) Act 2004, which abrogated the privilege against self-incrimination and provided only a direct use immunity, so that it provided ‘derivate use’ immunity as well – is valid in light of Momcilovic’s rejection of Ghaidan in favour of ‘traditional’ interpretation. That is a hard question. On the one hand, I think that the reading can be defended as an instance of ‘traditional’ interpretation, because common law courts have long been willing to both read the privilege itself into statutes that compel questioning, and to read the full immunity into statutes that abrogate the privilege and are silent on immunity. On the other hand, the Momcilovic court emphasised the ‘purposive’ limitation to Charter s. 32 and, in particular, its reference to the purpose of the statutory provision, as opposed to the Act as a whole. That’s a big problem for Major Crimes, as Warren’s approach is much more harder to defend as consistent with s39’s purpose, as opposed to the purpose of the whole coercive powers scheme. [EDIT: But, hey, wait a minute. Charter s. 3 actually defines ‘statutory provision’ to mean ‘an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument’.  So, this distinction the CoA draws (at [75] and [76]) between the provisions and the ‘legislation as a whole’, which was based exclusively on a ‘deliberate choice of language’ in Charter s. 32(1), is bogus, isn’t it?]

However, it’s the rejection of Hansen that is probably the most stunning in terms of past cases, because it means that there are some cases where rights claimants lost where they should have won instead. Now that Hansen is wrong, it is wrong for a court to favour an interpretation that limits a right over one that doesn’t merely because the former interpretation is a ‘reasonable limit’. In Major Crimes and Nettle’s judgment in RJE, for instance, Warren and Nettle were wrong to spend any time contemplating whether the ‘ordinary’ interpretations of the statutes they were considering were ‘reasonable limits’ under Charter s. 7(2) (as they weren’t considering making a declaration.) However, that didn’t matter, as they found that the statutes in question failed the Charter s. 7(2) test anyway. Rather, the rejection of Hansen is consequential in cases where courts have found that the ordinary interpretation, while limiting rights, was a reasonable limit.

For instance, Kracke , the longest and most discussed pre-Momcilovic Charter case, has now been revealed to have been wrongly decided. Recall that Bell held that an interpretation of the MHRB’s review obligations that allowed an order to continue without a required review breached Kracke’s right to a fair hearing. However, he declined to read the provisions of Victoria’s Mental Health Act 1986 as meaning that non-reviewed orders are void, because he reckoned that the more ‘flexible’ approach of making the review requirement legally irrelevant was a reasonable limit to avoid the prospect of mass annulments of mental health orders. Momcilovic, in rejecting Hansen, says Bell should have put reasonable limits completely out of his mind and just tried to use ordinary interpretation to make the provision compliant. And that would have been a doddle, because the major case on ordinary interpretation, Project Blue Sky, says that the ‘void’ reading is always open as a matter of regular interpretation of provisions that state a rule but don’t specify a consequence. So, with Charter s. 32 properly applied, Kracke should have been free (at least temporarily) from being forced to take his meds (rather than just being given the consolation prize of a bit of paper.) Similarly, as the HRLRC points out, it seems that the most recent BellBuster, XYZ v Victoria Police on FOI laws, brought down the day before Momcilovic, may also have been wrongly decided, because Bell again read a Charter right (freedom of expression) generously but then refused to reinterpret the legislation because it was ‘reasonable’. (A complication here is that Charter s. 15(3) has its own internal reasonable limits test, raising the question of whether that is covered by the VCA’s rejection of Hansen.) Bell took over a year to write that freaking judgment. He should have waited two more days.

Also possibly wrong: the various (and mostly minor) decisions that followed the government’s dodgy idea that all statutory discretions are now limited by some sort of magicked-in ‘reasonable limits’ restriction courtesy of Charter s. 32. That’s Hansen and Ghaidan,  so it’s also wrong. (And good riddance too.) So, Lifestyles, another Bellbuster on VCAT EOA exemptions: wrong (or, at least, wrongly reasoned.) And the argument that tenancy law’s provisions on giving notice to tenants is subject to magicking in a reasonable limits obligation directly into the statute itself: wrong. Also shaken up a touch: Sabet! Ha! Remember that Hollingworth bought Tate’s three-stage test for Charter s. 38 claims, with the final stage being ‘Was any such limitation reasonable and justified within the circumstances set out in s7(2) (the justification question)?’. That stage, for reasons I suggested above, is almost certainly now gone. That being said, Hollingworth’s ruling that Sabet’s presumption of innocence wasn’t limited, which was the ratio of the case (for what it’s worth) still stands. Also potentially wrong: any decision by VCAT or the SCV or whatever where a rights-limiting decision by a public authority was justified using Charter s. 7(2), rather than Charter s. 38(2). There were lots of those, I recall. Another likely candidate for reconsideration is Barbaro, assuming that Charter s. 7(2) was part of the A-G’s unspoken reasons for arguing that the Bail Act is untouched by the Charter.

Finally, I’d also suggest that Momcilovic‘s focus on the intentions of Parliament when it enacted the Charter puts paid to the more adventurous arguments out there – notably, the argument about the typo in Charter s. 6(2)(b) – that have tried to read away some of the Charter’s more obnoxious limitations by relying on vague provisions about functions and purposes and the like. These simply could not survive a reading that treated the Charter as a regular statute.

All up, the big message for ordinary lawyers is that just about every pre-Momcilovic decision is now very dodgy authority indeed. Well, to be precise, courts and lawyers (and law students) need to steer clear of EVERYTHING said in the past about either Charter s. 7(2) or Charter s. 32. On the other hand, Charter pronouncements on neither of these things (like the meaning of any of the Part 2 rights, or Charter s. 49(2) or whatever) remain authorative.

Rights claimants

Another huge set of stakeholders are, of course, ordinary (human) Victorians who may want to pursue claims that their rights have been breached. Well, the short take is that there will be fewer actual wins in the post-Momcilovic world. Now that Charter s. 32 is no longer ‘special’, the Charter’s gonna be no use whatsoever in overturning or ameliorating clear but nasty statutory rules like s. 5 of the DPCSA. Just ask Ms Momcilovic.

However, lawyers shouldn’t write off the Charter for your clients just yet. There’s still:

  • Charter s. 36: There’ll be lots MORE declarations of inconsistent interpretation now. Indeed, that’s why the VCA ditched Ghaidan. Less judicial solutions. More political solutions, though whether those solutions are rights-friendly remains to be seen.
  • Charter s. 38: Momcilovic said nothing at all about the conduct mandate, the other great operative provision of the Charter. If anything, on my reading, the rejection of Hansen expanded Charter s. 38 by almost certainly stripping it of its Charter s. 7(2) limitations. So, there’s still plenty of scope for confining the executive. That being said, there are also still all those other nasty limitations, like Charter ss. 4(1)(j), 4(1)(k), 38(2) and 39(1). The conduct mandate’s a tough road. (Apparently, there’s another Bellbuster due on some of these matters, as they relate to tenancy law. Can’t wait.)
  • Charter s. 32: Don’t count out the interpretation mandate quite yet. For starters, Momcilovic wasn’t entirely negative for Charter s. 32. While the rejection of Ghaidan substantially defangs s. 32,the rejection of Hansen actually gives the defanged rule significantly more to chew on, as the interpretation mandate is no longer subject to all that reasonable limits guff. If a provision limits a Part 2 human right, then that’s reason enough for a court to look for another interpretation, even if the limitation is reasonable. While the increased scope is counterbalanced by decreased power to ‘re-read’, don’t write off ‘traditional’ interpretation either. The thing that dipsticks like Jim Allan and Bob Carr seem to be incapable of realising is just how powerful traditional statutory interpretation has always been as a law reform tool. Look at the whole common law on mens rea and self-incrimination and judicial review, for instance. The place to look to see how powerful the post-Momcilovic Charter s. 32 will be is New Zealand, which also rejected Ghaidan. (Check out cases like this one for instance, where the NZCA held that a later, more specific provision (retrospectively applying a new sentencing power to bar parole applications) was subject to an earlier general provision  (barring retrospective increases in penalties.) A similar approach to retrospective penalty laws (like this one currently working its way through Parliament) would seem to be available under Momcilovic.)

And there’s another very positive side to Momcivilic for rights claimants. Now that Poplar, Ghaidan and Hansen are history, Victorian lawyers will no longer be burdened with all that  guff about ordinary meanings and reasonable limits and all that crap when they just want a court to consider the Charter when interpreting a statute. Now, it’s just a simple matter of telling the court of to interpret the statute where possible compatibly with human rights. Always worth a shot, hey? Indeed, if it wasn’t for bloody Charter s. 35, the Charter’s awful notice provision, then there’d now be no significant barrier to the Charter getting mentioned in nearly every Victorian judgment.

Which takes me to…

Rights respondents

Momcilovic confirms the almost total collapse of the government’s Charter litigation strategy. As I’ve documented on this blog, the government’s court (and SoC) strategy consists of:

  • Finding any technical reason you can to read human rights narrowly.
  • If that fails, claim that all legislation is inherently valid because the reasonable limits test is simply magicked in to everything, especially broad statutory discretions.
  • If that fails, asserting that anything that furthers government policy is automatically a reasonable limit on human rights
  • If that fails (or anyway), rely on any other technicality you can think of, like Charter s. 49(2), or Chapter 3 of the Constitution, or whatever.

Major Crimes was a fatal blow to the first part of this strategy. Momcilovic’s confidently broad reading of the presumption of innocence is a final nail in that coffin. Hands up who reckons that Hollingworth’s suggested use of the heading to Charter s. 25 to read down the presumption in Sabet will survive any VCA review now? In fact, the Momcilovic court didn’t so much as mention Sabet, even though it’s the only other decision to date on Charter s. 25(1). A well deserved snub. Momcilovic’s explicit rejection of Ghaidan similarly dispatched the second strategy to a timely grave.

And, the VCA, like Warren in Major Crimes, also trounced the third strategy. Guess what? ‘Demonstrably justified’ in Charter s. 7(2) requires actual evidence of justification. Who would have thought? Why, anyone who’s ever read a Canadian s. 1 case in their life. Indeed, the VCA expressly endorsed Oakes, to no-one’s surprise. No-one, that seems, except for the government’s lawyers, who seem entirely content to rock up at Charter cases and simply assert that rights-limiting laws are reasonable without evidence at all. Is it because they don’t have any evidence to support the laws that they nevertheless claim are reasonable? Or is it because they somehow think that the Charter’s main purpose is to give the courts an opportunity to heartily endorse whatever the government thinks is a good idea? The Canadian government learnt that hard lesson back in the 1995 tobacco advertising case (not that the human rights lobby seems to understand that.) And yet the Victorian government just won’t take ‘demonstrably justified’ in s7(2) seriously (or would rather fight against Charter arguments on technical grounds.) They just aren’t interested in proving to a court that Victorian statutes actually live up to the strictures of the Charter. That’s why they like Ghaidan and Hansen, because they outsource all the hard work to the courts (and any Victorian who dares to suggest that a Victorian statute is incompatible with their rights.)

What is so depressing about the government’s lawyers is that they aren’t advocating for anyone’s human rights. Nor are they even advocating for the Charter itself, i.e. the statute that parliament passed. Nope, what they are advocating for is government policy, be it the policy of whatever statutory provision is up for consideration, or the government’s policy on the Charter, or just the government’s desire to present itself as active and modern and its fear that the Charter might be the next Myki. And what that means is that the government’s lawyers have exactly the same job as Peta Duke, Planning Minister Justin Madden’s media adviser, who’s the most recent scapegoat for all this sort of governance. Duke didn’t see the proposed ‘consultation’ on the Windsor redevelopment as a sham at all; instead, it was just a way of managing the planning process so that its suits the government’s agenda (something that reminds me of a certain other consultation.) Likewise, the government’s lawyers are content to feed nasty Charter arguments to the courts – like the mentally ill not having any rights to a fair hearing at reviews of their treatment or the forced medication itself not limiting their right to security of the person – not because they believe in them, but simply because they seem to be arguments that best support the government’s policy imperatives and fears. This isn’t lawyering, at least not of the ‘officer of the court’ / ‘model litigant’ variety.

But, just like the spin doctors can’t always fool the public, it also turns out that, while policy-driven Charter arguments can fool some judges, they can’t fool all of them (at least, not all of the time.) The VCA itself was scathing of the willingness of the government’s lawyers to advocate Ghaidan despite Hulls’s statements to Parliament that the Charter is nothing radical:

In light of these clear statements to Parliament, it is puzzling that the submission advanced on behalf of the Attorney-General in this proceeding should have propounded such a different view of s 32(1).

Puzzling indeed. Is it because the Attorney-General (wittingly or otherwise) misled Parliament, or because he’s since changed his mind, or because he isn’t really aware of what the lawyers speaking on his ‘behalf’ are saying? Despite all of that, the government’s final strategy – relying on other technicalities scatted throughout the Charter by the drafters – is still a live one and (given the Charter s. 49(2) angle) may well be used in this case. But that’s it. Time for a new strategy, don’tcha reckon?

The A-G’s lawyers have a special role under the Charter, because Charter s. 35 requires that they be notified whenever someone raises a Charter argument in a higher court. Just about everyone other than those same lawyers has roundly criticised Charter s. 35 as being a significant impediment to rights claims. Wednesday’s ruling reveals another problem, as it turns out that the main thing Charter s. 35 has produced has been  two years’ worth of totally wrong advice to the higher courts, from VEOHRC (which backed Ghaidan), but especially from the A-G (which backed Poplar and Hansen too.)

Rights nerds

So, what about the ‘big picture’? By that, I mean the question of whether or not the Charter will achieve its aims and whether similar statutes will be enacted throughout Australia, especially federally. I’m far from convinced that there are all that many people who actually care about this, but anyway…

The most obvious angle is that Momcilovic pulls the rug out from under Jim Allan’s argument that human rights statutes hand lawmaking powers from the elected to the unelected.  I can just see him opening up Momcilovic and seeing the headnote – ‘Ghaidan v Godin Mendoza [2004] UKHL 30 not followed’ – and scowling: ‘Drat! Those pesky judges! They did this to spite me!”

But, two seconds later, he’ll think up his next angle for an Australian op-ed, such as:

  • Those pesky judges almost took over Victoria, but my blistering recent op-ed saved the day!
  • Those pesky judges are still going to take over Victoria, but they’re going to be very sneaky and pretend that they aren’t going to follow Ghaidan. But they will. They ALWAYS do. Why? Because I am never ever wrong.
  • You know what the real problem with rights statutes is? Declarations of incompatibility, like the one in Momcilovic. Just you watch. As soon as that thing reaches Spring St, the whole government will give up the lawmaking job completely and invite the judges over to redraft its legislation. Just you wait and see. (If this doesn’t happen, it’s because I wrote this blistering op-ed.)

In other words, nothing will ever change the anti-Charter mob’s minds or arguments. They’ve never cared less about evidence, which is why they never ever talk about interpretation in any non-UK parliamentary rights jurisdiction They’ll just pretend Victoria doesn’t exist, like always. (And the ACT. Who???)

Alas, I also see something analogous happening with the pro-Charter lobby. Sure, they may well point out that Momcilovic has put the kybosh on the Jim Allan Project. But they won’t sing too loudly, because Momcilovic confirms that the Charter will have virtually no effect on the big issues that are the only thing the rights lobby really cares about, like terrorism and refugees and socio-economic rights and all that. Without Ghaidan, which most of the lobby hoped was exactly the trojan horse the anti-rights lobby said it would be, the Charter will only fix the devils in the details. That’s a prospect that is disastrous for the rights lobby’s base. Momcilovic confirms that the only way to bring a rights charter in the overseas tradition to Australia is to do it overtly, and that’s not a message that any of the rights nerds will want to broadcast.

A specific Momcilovic angle the media want to know about are its implications for the federal Charter project. As my above discussion makes clear, I actually don’t think there are many implications, because I don’t think any of the players in that game cares less about what is actually happening on the ground in Victoria. To the extent that the Momcilovic message – that rights charters won’t shake up the legal system much at all – filters through, it takes the fire out of both sides of the argument. One matter that I think Momcilovic may cast light on, for anyone who cares to look, is the internal debate in the National Human Rights Consultation Committee between the majority (who wanted a ‘Human Rights Act’) and the minority (who didn’t want an Act, but wanted the key provisions: a defined list of rights, an interpretation mandate, a conduct mandate and parliamentary scrutiny.) The curious thing about this debate is that both sides actually want the same provisions enacted. I think the difference is that the majority wants an Act, because they want something that might grow into more than a bunch of provisions. But Momcilovic renders all of that moot. That’s sad for the Trojans (or is it the Greeks? Yes, it’s the Greeks), but it’s comforting news for those who just want the Feds to follow Victoria. If media reports are accurate and cabinet has opted for the minority view, then they’ve opted to adopt the post-Momcilovic Charter. (For what it’s worth, my speculation is that Frank Brennan is the minority and that he was the only one of the Committee with the foresight to predict both Momcilovic and the federal cabinet’s view.)

Alas, there’s another, much baser, political angle: the actual outcome of Momcilovic – a declaration that DPCSA s5 is a breach of human rights – is a major win for…. suspected criminals. Yes, those people. Yeeeeech. The anti-Charter mob can now make a big hue and cry about how it’s now a ‘criminal’s Charter’. (They’ll studiously avoid mentioning that the actual right at stake is the presumption of innocence, which, while not universally popular, has a certain cachet even with the tabloid readers.) And what will be the pro-Charter lobby’s reply?: ‘No, it isn’t a criminal’s charter. You can see that because that nasty trafficker Vera Momcilovic’s conviction still stands! And Victoria’s nasty reverse onus still applies to all Victorian drug trials. Hooray!’ Well, they won’t actually say that (I hope.) But, I suspect, they will stay pretty quiet on that substantive issues in Momcilovic and, instead, blather on about the generic rights dialogue. To see what I mean, take a look at the media releases put out by VEOHRC on Major Crimes, which is subject to the same angle. See any? Nope. And that’s a case, unlike this one, where the Commission had a huge victory. There’s only one reason why they didn’t want the media to know about that victory, isn’t there? And look at the Victorian lobby’s ‘good news stories‘ about the Charter. Don’t see any stories about criminal process rights there? That’s because those are ‘bad news stories’.

Well, pro-Charter folk, if you cringe because this is a case about criminal defendants’ rights, then you’re just as much spin doctors (and just as little lawyers) as team VGSO. And, more importantly, you aren’t pro-Charter or rights lawyers or lobbyists or whatever at all. Because human rights are meant to be applied without discrimination. All of them. Or else they aren’t human rights at all, but just a set of boutique political objectives, just like the anti-Charter folks have always said. I’ve previously given kudos to the Commissi0n for fronting up at Major Crimes and making the hard arguments about self-incrimination. But I won’t give similar kudos to VEOHRC and the HRLRC for turning up at this case, because both of them chose to limit their arguments to Charter s. 32, leaving the hard yards of arguing that DPCSA s 5 was incompatible with Charter s. 25(1) and not a reasonable limit to Vera Momcilovic (the rights claimant) herself. I realise that the Charter s. 32 issue was the one with the broadest implications for the future, but why would two of Victoria’s key players on human rights opt not to cover the specific rights issues at stake too? If the right at issue had been Charter s. 8, or the rights of kids, then both of these entities would have been all over the issue like a rash.

Need some tips on how to actually celebrate criminal defendants’ rights? That’s next.

Criminal law nerds

Charter ss. 7(2) and 32 are not the only Charter provisions that Momcilovic ruled on. There’s also this one:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

The VCA’s major ruling was that this right was unreasonably limited by the following provision:

5 Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

It’s no surprise that a reverse onus provision in a drug law finally galvanised the VCA into working out how the Charter works. Such reverse onuses are a mainstay of landmark rights statutes. Think Oakes, Hansen, Sheldrake, that Hong Kong judgment on remedial interpretation.

DPCSA s5 is an especially nasty reverse onus. Its nastiness is simple to explain in lay terms. Do you share property with anyone else (even a little)? Like a flatmate, or a partner, or your children, or even just on occasional visitor? Well, if they have some drugs in a common area and the police find it, then they can charge everyone who shares the property with possession of those drugs (and, if there are enough drugs, trafficking.) And you will be found guilty, at least of possession, unless you can prove (on the balance of probabilities) that you didn’t know about the drugs. Chances are, the only way you’ll be able to prove your innocence is to testify that it was the other person (your friend, your partner, your kid, whatever) who’s the drug possessor or trafficker. Victoria’s new Evidence Acthas a provision designed to stop family members from being forced to testify against eachother, but DPCSA s5 effectively takes away that choice in the case of shared property owners, by forcing them to choose between testifying against their flatmates or going straight to gaol (and some serious prison time) as a drug trafficker. Not only that, but even if you did testify in these circumstances, you may well still end up in gaol, because if the court doesn’t believe you, or even if the court doesn’t know who to believe, then you’ll be found guilty. Mix in the souped-up prison sentences for those charges – and contemplate the complete terror that that Filipino with the Iced Tea must have felt this past weekend – and you can see how threatening this sort of provision is to everyone.

And if that doesn’t convince you, maybe the fact that Victoria is the only Australian jurisdiction to have this provision will. Despite all this, my biggest fear while we were all waiting for Momcilovic - based on all the Charter disappointments to date – was that the VCA would actually be the first modern court to rule that a drug reverse onus was reasonable. I can name quite a few Victorian judges (one just retired) who I reckon would cheerfully make such a holding. But, fortunately, not Maxwell, Ashley and Neave. To the contrary, their judgment was a stunning repudiation of reverse onuses in several respects:

First, they ruled that DPCSA s5 infringed Charter s. 25(1), not only in its application to the crime of possessing a drug (where possession is an element of the actual offence)  but also on the crime of trafficking, where possession does no more than create a ‘prima facie case’ that the defendant intended to traffick. The latter ruling appears to bring evidential onuses within the sphere of Charter s. 25(1) (though I’d say that that’s only true for evidential burdens on elements of offences, as opposed to (genuine) defences, provisos, etc.) Amazing.

Second, the VCA has more or less completely destroyed a major plank of the usual justification for reverse onuses: the need to ease the fundamental rules of proof in trials of especially heinous crimes. The VCA noted that this argument doesn’t wash, because the presumption of innocence is actually more important for especially bad crimes. And, they held, that doesn’t mean that reverse onuses are OK for less serious crimes, because that just means that any needs of the law enforcement end are less important too.  For instance, the VCA scorned the fact that DPCSA s5 is more help for the less serious possession crime than the more serious trafficking crime.

Third, the VCA, like every other similar court since Oakes, has affirmed that Charter s. 7(2)’s ‘demonstrably justified’ requirement requires actual evidence, not just assertions (except in cases where those assertions can be accepted as a matter of common sense.) So, stand by for factual trials on these issues in this future (and, perhaps, evidence-based arguments in statements of compatibility. Whoa!)

However, the most stunning part of Momcilovic wasn’t anything the VCA said, but rather Chief Crown Prosecutor Gavin Silbert’s amazing admission at [145]:

Far from submitting that the imposition of a reverse legal onus was essential to the task of successfully prosecuting trafficking offences, senior counsel candidly acknowledged that a change from a persuasive onus to an evidentiary onus would make little difference. Pressed by the Court, counsel eschewed any suggestion that a change of the onus from persuasive to evidentiary would make a major or demonstrable difference to drug trafficking prosecutions. As to the need for evidence, he submitted that empirical evidence of the efficacy of the persuasive onus would have been virtually impossible to obtain. It was mere speculation, he said, whether the outcome in a particular trial would have been different had the prosecution not been able to rely on a reverse legal onus.

Isn’t this incredible? A major, hideous Victorian law, used routinely in its courts and, no doubt, in plea bargaining, turns out to be completely unnecessary the moment that its chief beneficiary is asked in court to justify it.  Now there’s a rights dialogue in action! It’s Silbert’s declaration, not the VCA’s, that will put the most pressure on the government to repeal DPCSA s5. And it wouldn’t have been made, it seems, without the Charter.

My sole disappointment with Momcilovic is Part II of the judgment, which begins immediately after the proposed declaration (and which just about no-one else will read.) That’s where Vera Momcilovic put all of her non-Charter arguments that her trial was bad and the VCA gave them all short shrift. Her arguments were basically that the trial judge kept the issues too simple, by only directing the jury on the issue of her knowledge of the drugs and not directing the jury on the array of other legal arguments that could also have led to her acquittal whether she intended exclusive control of the drugs (with her partner); whether she might be guilty of only the lesser included offence of possession (because she didn’t intend to traffick); and whether she reached an agreement with her partner to traffick (joint commission.) On the latter point, the Crown actually conceded at the appeal hearing that there should have been a direction, because the Crown’s case was based (initially at least) on joint commission. (Do you get the feeling that Gavin Silbert’s heart just wasn’t in this case? That maybe Vera Momcilovic’s prosecution maybe never have happened at all?)

But the VCA rejected all of these arguments for just one reason: that Momcilovic herself chose to focus the trial solely on the question of her knowledge of the drug. The judges quoted her trial counsel as candidly conceding:

…[I]f I can fairly say, your honour, I haven’t run the case on the basis [of] anything other than the element of possession… It’s not one of those cases where I’ve run an argument, ‘We didn’t possess it but if we did possess it we didn’t intended to sell it.’ That would have been forensic suicide as a Isee it and I haven’t run that.

The VCA relied on this defence concession to reject even the Crown’s concession that the true issues where broader than just knowledge! In doing so, the judges completely failed to recognise (or at least mention) that the sole reason it would have been ‘forensic suicide’ for Momcilovic to argue an alternative case was because she was the one who bore the burden of convincing the court that she was telling the truth, thanks to DPCSA s5. Unlike most criminal defendants, Victorian drug trafficking and possession defendants are effectively denied the ability to argue alternative cases and must instead put all their eggs in one factual basket. Maybe, given their rejection of a strong view of the Charter, there’s nothing the VCA could do about that (though the ‘substantial miscarriage of justice’ ground in Victoria’s appeals law is ripe for a little Charter-friendly traditional interpretation.) But you’d think that they’d at least see fit to mention the costs of (the soon-to-be-declared incompatible) DPCSA s5 in this context (and, perhaps, remind the Crown of its own obligations under Charter s. 38 with respect to drug defendants’ presumption of innocence.) My guess is that this bit of the judgment was written by a different judge and the others didn’t pay it enough attention.

It’s funny how all that high-falutin’ Charter stuff seems to distract judges from the actual individual merits of the case. A similar thing happened in Kracke too, I reckon. And, on that note, let’s get back to the case itself.

The parties

There were five parties before the court in R v Momcilovic and none of them won:

  • Momcilovic herself argued that (a) s5 DPCSA breached Charter s. 25(1); (b) it should be re-read down. She won on (a) but lost on (b)
  • The Crown argued that (a) s5 DPCSA didn’t breach Charer s. 25(1); (b) if it did, it should not be read down. She lost on (a) but won on (b)
  • The A-G argued that (a) s5 DPCSA didn’t breach Charter s. 25(1); (b) if it did, it should be read down. He lost on both (a) and (b), just like the government’s lawyers did in Major Crimes.  Quite the losing streak there.
  • The Commission didn’t make any submissions on whether s5 DPSCA breached Charter s. 25(1) (why not?) but argued that if it did, it should be read down. It lost on that (on the back of winning a similar argument in Major Crimes.)
  • The HRLRC was the same. But the HRLRC did have a big win in that it, alone, argued against Hansen, and it won that point. Well done! That being said, the HRLRC also lost on Ghaidan big time, just like everyone else except the Crown.

But the case isn’t over yet. There’s at least one more roll of the dice: the Hight Court. Who would benefit from such an appeal?:

  • Vera Momcilovic. If she can convince the HCA that Ghaidan applies in Victoria, then she’ll get her trafficking conviction quashed (unles the HCA also decides both that Hansen is right and that s5 DPCSA is reasonable.) All she has to lose is the declaration of inconsistent interpretation (which isn’t totally worthless. See below.) So, I reckon it’s dead certain that she’ll seek leave to appeal (and, hence, that the A-G won’t have to respond to any declarations this year.)
  • The Crown. The Crown got the outcome it wanted, which is the preservation of s5 DPCSA (and, I guess, Momcilovic’s conviction.) All there is to gain from an appeal is overturning the declaration, but the Crown will only do that if it thinks the government will change s5 DPCSA  in response. Moreover, the Crown, to win, will have to convince the HCA that s5 DPCSA is a reasonable limit and that’s virtually impossible because of Silbert’s concession at the VCA.
  • The A-G. The A-G, I’m sure, or at least his lawyers, would love to revive PoplarGhaidan and Hansen somehow. But that would involve him going to the HCA basically trying to get Momcilovic’s conviction overturned. To avoid that, the A-G will have to bank on also convincing the HCA that s5 DPCSA is reasonable, but that’s hard because of Silbert and the government’s own slovenly approach to putting evidence before the VCA about the need for a reverse onus. Maybe, though, the A-G will go for a technical argument, like 49(2) or the Constitution or something. Anyway, as I noted earlier, the A-G might seek special leave just to ensure that no Charter s. 37 response to the declaration is required until after the election, though I think Momcilovic will do that job for him.
  • VEOHRC. I doubt that the Commission will want the HCA to go anywhere near the Charter. None of the HCA judges know a thing about such statutes (and some of them are outright hostile.) And the Commission has no resources. It won’t appeal but will presumably stay onboard if someone else does.
  • The HRLRC. Just an amicus, so no appeal there.  Otherwise, same as the Commission, except that the HRLRC’s lawyers would love to appear before the HCA for any reason, I reckon.

I won’t look at what the HCA might actually do on an appeal, as that’s imponderable for so many reasons (mostly as it makes me sick to the stomach to imagine Dyson Heydon’s judgment.) That being said, surely, if someone does seek special leave, then the HCA will grant it.  The wider implications of the case are crystal clear, not only for Victoria and the ACT (who?), but also all those jurisdictions who are contemplating following the Victorian model.

It’s also possible Momcilovic’s reasoning could be overturned without a HCA appeal, if another suitable case arises in Victoria. Frustratingly, Maxwell only convened a three-judge court to hear this case, despite its obvious landmark status. WTF? Why on earth would he do that? Perhaps he thought that a five-judge court might swing the wrong way? Regardless of why, Maxwell’s means that there’s a reasonable chance that the other appellate judges who were shafted by the Momcilovic court – Bell, Nettle, maybe Warren  or Weinberg – will clamour for a reconsideration by a five-judge bench, a process used to speedily correct major errors in appellate judgments. However, even if that happens, though, the law will only change if a majority of the new bench is willing to hold that Momcilovic was clearly wrong and also reject comity with the Fearnside decision by the ACTCA (who?)

In any case,I think it’s worth observing that Maxwell, Ashley and Neave did a terrific job in appeal-proofing the anti-Ghaidan part of their ruling. First, the judgment was unanimous. Second, it relies heavily on very orthodox reasoning and lots of quotes from the HCA, including a recent judgment from French CJ. Third – and this only matters in a direct appeal – they also cleverly ruled that, even if they were wrong on Ghaidan, DPCSA s. 5 still couldn’t be reinterpreted Lambert style. So, all up, I think at least the anti-Ghaidan part of Momcilovic is here to stay.  It’s possible that Poplar or Hansen might still make a comeback in Victoria, as the VCA’s reasoning rejecting them is more vulnerable. It’s also possible that the declaration might be overturned in the HCA (for instance because the HCA doesn’t buy the VCA’s view that the presumption of innocence was breached by the mere activation of a prima facie case for the trafficking charge, which was the only charge actually in play in the trial.) But without a return of Ghaidan, we’ll all still be living firmly in a post-Momcilovic world.

And, while I’m very upbeat about that, there’s clearly one individual for whom that’s a disaster.

Vera Momcilovic

Vera? Vera? What has become of you?

Vera Momcilovic, forced to prove her innocence at her own trial thanks to DPCSA s5, testified that she didn’t know about the drugs the cops found in her flat – they were in a fridge she never used and cupboards she never looked in – and the jury didn’t believe her. Nor did they believe her partner, who put up his hand as the real (and sole) trafficker of the couple. That is, the jury didn’t believe them on the balance of probabilities. Did their testimony raise a reasonable doubt about Momcilovic’s knowledge and therefore her guilt? Thanks to DPSCA s5, we’ll never know.

In some respects, Momcilovic had an easier task than many alleged traffickers, because she is, or at least was, a ‘good girl’.  (According to the VCA, her credibility was shaken by her initial denial, soon retracted, that she knew of her boyfriends priors.) Nevertheless, her full professional history (according to the then site of the patent firm she used to work for) would, if the jury knew about it, have been mixed blessing indeed for someone who is subject to DPCSA s.5:

Vera is the latest addition to the team. Her extensive study history includes a Bachelor of Laws from Monash University and a Graduate Diploma of Intellectual Property Law and Master of Laws majoring in Intellectual Property from Melbourne University. Vera has also further completed a Bachelor of Science Honours degree from Monash University majoring in chemistry and a Graduate Diploma in Drug Evaluation and Pharmaceutical Sciences from Melbourne University. Vera is also a Registered Patent Attorney and is a Fellow of the Institute of Patent and Trade Mark Attorneys of Australia. Prior to joining IP Wealth Vera worked for a boutique Patent and Trade Mark Attorney firm and most recently in an IP Management and Legal role where she serviced numerous Divisions of a large Australian Research Organisation. Vera is a member of BNI. With so many qualifications to remember, its no wonder that Vera requires a short black with one sugar in the morning followed by more long blacks throughout the day.

Oops. That’s a few too many qualifications! A ‘Graduate Diploma in Drug Evaluation’, eh? Sounds useful for working out if that’s methamphetamines or Iced Tea in the fridge. (Well, maybe not.) And, hey look!: she’s a Melbourne Law School graduate. I bet there’s already a banner headline on the MLS website: “MLS alumnus wins landmark human rights declaration!’ Hmmm. Must be waiting until the VCA actually makes the declaration, I guess.

Part III of R v Momcilovic reveals that the Charter didn’t leave her completely empty-handed. Despite there being so little for the Crown to actually prove in her trial, the sentencing judge in the County Court, Damian Murphy, still managed to bugger up the all-important calculation of how many drugs there were that Momcilovic was guilty of (not being able to prove that she wasn’t) possessing. She was sentenced for trafficking 700g, instead of 350g, and that meant that the VCA had to resentence her. And that turned out to be a very generous resentencing, reducing her custodial sentence to time served (which itself was a mere 2 months because the VSC generously bailed her pending her Charter challenge back in 2008.) The VCA confirmed that this generosity was thanks to the Charter. She should have gotten more additional time in the slammer, but because,’[f]or reasons beyond her control, her conviction appeal became an important test case’, so she got some extra mercy for being kept waiting (albeit, on bail.) Now, there’s an incentive for criminal defendants to bring Charter cases! I wonder if the many victims of Bell’s insanely lengthy deliberations can claim a similar bonus.

Nevertheless, she remains a convicted drug trafficker. However, thanks to this case, that particular conviction now has an * next to it that reads “*This conviction was obtained at a trial that breached the defendant’s human rights”. Even though that has no legal effect, I reckon it’s still worth something. For instance, I imagine Momcilovic would love to start work again as a patent lawyer, but standing in the way of that is the Supreme Court’s Board of Examiners and its pesky rules about good character. S0, here’s what she could argue: you, the Board, shouldn’t hold my conviction against me, because it was obtained in breach of my human rights. That’s not just me saying that. It’s the highest court in Victoria. Your court. And that’s not just any human rights. It’s a human right that both the common law and Parliament say they are committed to protecting. So, as a Board that’s devoted to protecting all those things, you shouldn’t use my trafficking conviction – one which was never actually proved in court, but which I merely failed to disprove – against me. Ha! Another possibility is that she could take her case to the UN Human Rights Committee, raising her presumption of innocence under Article 14.2 of the ICCPR (once she loses her HCA appeal.) It’s hard to see how Australia could even begin to defend itself in such an application, given the VCA’s ruling. Unlike the VCA, the UNHRC’ttee has the power to order the Australian government to give Momcilovic a remedy. Alas, it also lacks any powers to enforce such rulings, which the Australian government is quite happy to ignore.

So, aside from the HCA, there’s really only one person who can give Vera Momcilovic the justice the VCA says she deserves.

Rob Hulls

The A-G. Not the S-G, although at times it’s hard to know the difference. Deputy Premier Rob Hulls. The whole Charter ball rests firmly in the court of the one man responsible for the Charter in the first place.

I don’t have much to say here, because I’ve said it all before. If Hulls wants to ensure that his Charter outlives his political career, then he has only one option: to embrace the Charter, even when it embarrasses his government or carries a political cost. Celebrate the VCA’s identification of a truly awful law on Victoria’s books (and one that even Victoria’sChief Prosecutor thinks is a dud.) Proudly introduce a bill into Parliament repealing it (and other reverse onuses in drug laws and elsewhere that similarly prove to have no purpose) and make it retrospective too. And proudly tell Victoria that you’re doing it because the government values Victorians’ human rights above everything else.

And, if he won’t do that, then use the Charter s. 37 response as an opportunity to announce a bill repealing the Charter. There’s no middle ground on this one for anyone of principle.

But, of course, we know that neither of these things will happen.  Indeed, according to the media, Hulls has already announced (without even waiting for the VCA to make the declaration, let alone for it to turn up in his pigeon-hole) that ‘the law at issue in this case would be considered in a review now under way into the Drugs Act’. Strange,  no such review was announced in either Justice Statement 2: Electric Boogaloo (which is currently mysteriously offline. I can’t recall anything about a reform to the DPCSA from back when the statement came out. There is a major reform of the Crimes Act – slated to run for several more years – but there wasn’t any indication that it extends to the thousands of other criminal offences in the Victorian statute book) or the 2010 Statement of Government Intentions or Justice’s Strategic Priorities for 2009-2010. Anyway, brace for some vague tinkering with the DPCSA that the government will cravenly claim that they were going to do anyway. See, the Charter works, they’ll say. Because it doesn’t really do anything.

Actually, there’s another response that Hulls could make to Momcilovic. He could always introduce a bill to change the Charter itself so that it matches what his lawyers argued in court. Change Charter s. 32 so that it matches the UK’s s. 3 exactly. Change the definition of ‘human rights’ so that it includes the reasonable limits test every time. And, be honest about it in Parliament. And, if Hulls won’t (or can’t) do that, then amend the Charter to match what the Momcilovic court held: that it’s just an ordinary statute. It wouldn’t take much. In the UK, they’re thinking of renaming their Act to be a Bill of Rights, because that’s what their Act really is, post-Ghaidan. Hulls should do the opposite: change the Charter’s name to the ‘Victorian Human Rights Act’.

The VHRA. Now, that’s a pronounceable acronym. And an eerily appropriate one too.

And that’s one more thing Hulls could do and he won’t need an Act of Parliament to do it. The VCA has revealed that at least one Victorian stands convicted of a crime in Victoria despite her guilt never being proved ‘according to law’. Isn’t that what pardons are for?

Charterblog

Well, it’s been fun doing this post. Nearly 12000 words, written quickly, straight into the public domain, without waiting nine months for traditional publication. I still can’t say enough good things about blogging. It’s a buzz. And Momcilovic is a small step towards the one thing that I said might bring Charterblog back: a more mature Charter jurisprudence. We’ll see if it sticks.

That being said, I remain too busy to blog in the way I did in 2008. Amongst other things, there’s the new JD criminal law course, two books to write, a bunch of articles, a newborn and a coming trip to Japan with my four-year old. So, that’s it for me until something even bigger than Momcilovic happens. Maybe the High Court appeal?

24 thoughts on “The New Charter

  1. Hi Jeremy,

    I think there is one aspect of the decision which could eventually be overturned by the High Court.

    The court ruled that s 7 has no role in the interpretation process.

    However, during his second reading speech, the Attorney-General said: “rights should not generally be seen as absolute…Where a right is [reasonable and demonstrably justified in a free and democratic society], then action taken in accordance with that limitation…is not incompatible with the right.”

    Thus, a statutory provision that imposes a limit that satisfies s 7 will be “compatible with human rights”.

    How can a court comply with the s 32(1) mandate to interpret all statutory provisions in a way that is “compatible with human rights” if it doesn’t first establish whether the interpretation it proposes to give satisfies s 7?

  2. I agree that the rejection of Hansen is vulnerable to being overturned and that that line from the second reading speech favours Hansen.

    But the case for Hansen is hardly overwhelming. It would have been a simple matter to define ‘compatible with human rights’ to ensure that Charter s. 7(2) is built into the definition. It also would have been simple to explain how Charter s. 7(2) interacts with Charter s. 32 in the explanatory memorandum. It’s the government’s failure to do either of these things that’s the problem.

    Unless there’s a HCA appeal, it’s not clear to me that there’s grounds for a future VCA to hold that the Momcilovic court’s approach is ‘clearly wrong’. The VCA’s principal argument – that ordinary readers of statutes are ill-equipped to do a s. 7(2) analysis – strikes me as quite compelling, from a policy perspective.

  3. While I quite like the decision (as it discards Ghaidan and retreats from the quasi-legislative power used in Major Crime), there is one complexity that bothers me. I’m pretty sure this has been ventilated above but I want to frame it differently.

    The VCA says that step one is interpreting the provision, using s32 and the ILA and rules of statutory interpretation. They’ve also said that s7(2) plays no role here. This means that when s32(1) says “interpreted in a way that is compatible with human rights”, it does not mean “interpreted consistently with s7(2)”.

    Step three is “If a right is limited, apply s 7(2) to see if that limit is justified”. From [154] and [155] of the judgment, it seems that if the answer is “no”, then a declaration of inconsistent interpretation should be issued.

    Section 36(2) specifies that a declaration must be made “if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right”. Therefore, in s36(2), “interpreted consistently with a human right” means “interpreted consistently with s 7(2)”.

    So, for the purpose of “compatibility” under s32, 7(2) has no relevance. But for the purpose of “consistency” under s36(2), it does?

    If, for the purposes of ascertaining “compatibility” under s32, s7(2) is not to be used, what is? The judgment sees s32 as basically enshrining the principle of legality, so maybe when s32 urges “compatibility”, it is really urging the most conservative (from a rights perspective) interpretation.

    On reflection, this is actually a nice construction of the Charter, but it hinges on distinguishing between “compatibility” under s32 (which is nowhere defined) and “consistency” under s36 (which is nowhere defined), and finding that s7(2) applies to the latter but not the former (which is nowhere explicitly specified in the Charter).

    Even if this is the optimal construction, surely it should be explicit on the face of the Charter itself.

  4. James, I agree that that’s the only textual argument that seems to be open and that neither the words ‘compatibly’ not ‘consistently’ really resolve the problem. (I think the anti-Hansen argument would have made more sense if the words were the other way around, actually.) To further confuse matters (and cast doubt on this aspect of Momcilovic), ‘compatibly’ is used elsewhere too in the Charter – in Charter s. 28 on statements of compatibility, in Charters s. 30 on SARC reports and in Charter s. 40 (I think) on VEOHRC reports, and no-one suggests that Parliament, SARC or VEORHC should ignore Charter s. 7(2).

    The big problem is that nothing about the relationship between Charter s. 7(2) and the rest of the Charter is explicit on the face of the Charter. Part of the explanation is that Hansen wasn’t brought down until after the Charter was passed. The rest of the explanation is the Charter’s overall sloppy drafting.

  5. Jeremy, I agree it’s unlikely that a future Court of Appeal will overturn the Momcilovic court’s approach. However, the s 32(1) interpretative mandate applies to all courts interpreting Victorian statutes. Sooner or later, this issue will arise in the High Court in its appellate or original jurisdiction. When that happens, the High Court could well overturn the Court of Appeal’s ruling that s 7(2) has no role in the interpretation process.

    The Court of Appeal has decided that public authorities and courts don’t have to consider or apply the s 7(2) proportionality test when interpreting Victorian statutes.

    I think that decision is unsustainable.

    Section 38(1) provides that [subject to subsections 2, 3 and 4] it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

    Suppose that you’re a public official who proposes to exercise a discretionary power, given by a Victorian statute, to issue an eviction notice on a tenant in public housing. It seems to me that in this situation you would be under a duty to consider whether exercising the power would limit a human right in a way that is unreasonable or not demonstrably justified in a free and democratic society. Isn’t that what “proper consideration” requires?

    Now suppose that you’re a judge of the Victorian Supreme Court who is hearing a case involving a claim that such an eviction notice was unlawfully given either because of a failure to comply with s 38(1) or because the regulation under which the notice was given was invalid. Would you not be under a duty to consider and apply the s 7(2) proportionality test in order to determine whether the decision was lawful, or to determine the meaning of the regulation and whether it is valid.

  6. Charter s. 38(1) requires two things: acting compatibly with human rights and proper consideration of human rights. In practice, the (weaker) proper consideration requirement is only significant if another law made it unreasonable for the public authority to act compatibly with human rights.

    You may be right that ‘proper consideration’ involves some sort of reasonable limits analysis – not that anyone has any idea what proper consideration means – but that doesn’t mean that acting compatibly also involves reasonable limits analysis.

  7. Jeremy, my key proposition is as follows:

    When a court is interpreting a Victorian statutory provision that apparently imposes a limitation on a human right that is not absolute, the court will be required to conduct reasonable limits analysis in order to determine whether the interpretation it proposes to give is compatible with human rights.

    Do you agree with that proposition?

    • No. An alternative argument is that compatible means ‘doesn’t limit any right, reasonably or otherwise.’ That’s the VCA’s approach and I think it’s open for them to take.

  8. Fair enough.

    It will be interesting to see what the High Court does when it next interprets a Victorian statute that limits a right.

  9. Very interesting indeed! If the appeal proceeds, the High Court may well answer some or all of the following questions which have major implications for the Victorian Charter, the national Bill of Rights debate and Australian constitutional law:
    1. Regardless of legislative intention, is the meaning of the word “possible” in s32(1) affected by any requirement of the Australian Constitution? For example, when exercising federal jurisdiction, the Victorian Supreme Court is not permitted to interpret legislation in a way that involves an exercise of legislative power. That requirement probably rules out the Ghaidan interpretative approach when federal jurisdiction is being exercised.

    2. How will the High Court draw the line, in order to determine what is “possible”, between permissible interpretation and impermissible lawmaking? In answering that question, the High Court may develop new understandings of the meaning of the concept of the separation of powers in the Australian context.

    3. If Momcilovic argues that the Ghaidan approach should be followed when the Victorian Supreme Court is exercising state jurisdiction, will the High Court accept the proposition that it is constitutionally permissible for the Supreme Court to interpret an Act in one way when exercising state jurisdiction, and in a different way when exercising federal jurisdiction? If that proposition is accepted, it follows that the meaning of any Victorian statute depends on the jurisdiction exercised. That notion must surely be incompatible with the Constitution.

    4. How will the High Court apply the proportionality test prescribed by s7(2) of the Victorian Charter? Will it take the view that applying that test is part of the process of interpreting the statutory provision that prescribes the involved limit on a right? If so, will it therefore decide, based on separation of powers implications, that any court applying the s7(2) proportionality test must go no further than to decide whether a political assessment could reasonably be made that the involved limit satisfies the test?

    5. Will the High Court reject the Court of Appeal’s ruling that courts interpreting Victorian statutes must explore all “possible” interpretations and adopt the interpretation which least infringes Charter rights, and that the interpretation process must be completed without applying the s7(2) proportionality test? The effect of that ruling is that a limitation imposed by legislation may be displaced by a less restrictive limitation, even if the first limitation is reasonable and demonstrably justified in a free and democratic society. Is this what the Victorian Parliament intended in enacting the Charter? It seems to be inconsistent with the following passage from the second reading speech: “rights should not generally be seen as absolute…Where a right is [justifiably] limited, then action taken in accordance with that limitation…is not incompatible with the right.”

    6. What will the High Court do if any of the parties or interveners raises a question as to the validity or consequences of the declaration of inconsistent interpretation made by the Court of Appeal? If that occurs, the High Court might resolve the question whether the making of such a declaration is an exercise of judicial power that is appealable to the High Court. That question has significant implications for the national Bill of Rights debate.

  10. Jeremy,

    Have you seen today’s decision by the Victorian Court of Appeal in Mastwyk v DPP?

    Remarkably, the court gave detailed consideration to the question whether the Wednesbury unreasonableness test applied, but omitted to give any consideration to the question whether the s 38 reasonableness test applied.

    • Charter s. 38 didn’t apply in this case because the events all happened in 2005. But it is curious that the police argued the case so strongly, since it doesn’t resolve the post-2008 law, and also that the Court of Appeal didn’t bother to point out to readers that their ruling is only relevant to alcohol tests that happened in 2007 and before.

      I agree that Charter s. 38 clearly requires more than Wednesbury unreasonableness and may require more than objective reasonableness. In particular, the Charter right against unlawful deprivations of liberty seems to be clearly breached. Charter s. 38(2) and – particular on Maxwell’s approach – Charter s. 39(1) still have to be overcome though.

      I guess the Court of Appeal may get around to hearing an appeal from a 2008 breath test in 2013 or so!

  11. Thanks Jeremy for pointing out that the relevant events occurred before the Charter was enacted.

    As you have indicated, s 38 therefore has no bearing on the outcome of this case.

    However, s 38 certainly has a bearing on some of the conclusions made by the ruling justices on the current state of the law.

    For example, Maxwell P said (with respect to his view on the reasonableness question) that “[t]he same applies to every provision of the RSA which confers power on an authorised person to require another person to do, or refrain from doing, a particular thing”. Clearly, he was referring to the current meaning and requirements of the RSA.

    Nettle JA also expressed a view on the current state of the law. He said that “if an accused defends a prosecution under s 49(1)(e) of the Act on the basis that the means of travel by which he or she was directed to accompany the police officer in question were unreasonable, the prosecution under s 49(1)(e) will fail unless the Crown establishes that the stipulated means of travel were objectively reasonable”.

    Similarly, Redlich JA said “where a driver does not comply with a requirement to accompany the police officer because the proposed manner of compliance is objectively unreasonable, the prosecution will fail to establish the element of ‘refusal’ by the driver”.

    It will be interesting to see what the High Court does when it is required to interpret or apply the s 38 reasonableness test. As you know, the High Court has consistently asserted that it is constitutionally impermissible for courts exercising federal jurisdiction to perform merits review. This means that a line must be drawn between judicial review and merits review. That requirement could have significant implications for the way in which the High Court interprets s 38.

    It could be argued that my reasoning is flawed as there is no constitutional requirement for a separation of powers in Victoria. However, I doubt the High Court would accept the proposition that the lawfulness of a decision by a Victorian public authority depends on the jurisdiction exercised by the court reviewing that decision.

  12. One final comment.

    I doubt the proportionality test adopted in the UK would pass constitutional muster in Australia. That test, as described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, is as follows:

    “27 The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:

    ‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’

    Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach: see Professor Jeffrey Jowell QC, ‘Beyond the Rule of Law: Towards Constitutional Judicial Review’ [2000] PL 671; Professor Paul Craig, Administrative Law, 4th ed (1999), pp 561-563; Professor David Feldman, ‘Proportionality and the Human Rights Act 1998′, essay in The Principle of Proportionality in the Laws of Europe edited by Evelyn Ellis (1999), pp 117, 127 et seq. The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138:

    ‘the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court’s analysis of complaints under article 8 of the Convention.’

    In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.

    28 The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell [2000] PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood [2001] 1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, ‘that the intensity of review in a public law case will depend on the subject matter in hand’. That is so even in cases involving Convention rights. In law context is everything.”

  13. So Mr Gans. We all watched in fear of your prediction from the last constitutional law conference coming true, vis a vis 109. It came a little close, perhaps your floodgates warnings were heeded? Anyway, expecting an update now the High Court has done its thing….

    • Well, in one sense 6-1 wasn’t close. It seems clear that Dickson was written by Hayne and the other six didn’t notice what they were signing onto.
      But the six didn’t just admit they got Dickson wrong, so it is still looming as a threat to state criminal law.

      There’s now a majority who say that s109 doesn’t apply to inconsistencies from background regimes like s80 and sentencing laws. I assume that also applies to the general criminal law (elements, general defences and the like) but no-one actually said that.

      There’s also now some judges who say that Dickson doesn’t cover procedural rules; federal rules that are nastier than state ones; and different maximum penalties, but not quite a majority in each case. On my reading, Vic’s possession law (where there is a state reverse onus but no federal one) is still in doubt. Also, on all approaches, the threat to NSW’s supply law remains. However, it is clearly possible that there’ll be further backtracks or shifts that will save those.

      That leaves covers the field. I counted three judges (Heydon, Crennan, Kiefel) who think savings clauses are effective in indirect inconsistency cases. But three more require other indications of intent, which will leave room for doubt.

      The danger will obviously diminish significantly once Hayne goes.

  14. It seems to me that the key outcomes are as follows:

    1. Courts applying s 32(1) are limited to using a “process of construction as understood and ordinarily applied by courts, a process which is to be taken as accepted by the other arms of government in a system of representative democracy”. The Ghaidan “remedial” approach to interpretation was rejected. The relevant majority’s interpretation of s 32(1) was based primarily on the wording used in the section, without it being necessary to decide whether the Ghaidan approach is constitutionally permissible in Australia.

    2. The s 36 declaration power is valid, but Ch III of the Constitution prevents such a power from being conferred on or exercised by any court exercising federal jurisdiction. This has major implications for the ongoing debate about whether Australia should introduce a national bill of rights. It is now beyond doubt that the “dialogue” model adopted in Victoria and the ACT is not a viable option at the national level.

    3. In cases where a statute limits a right, s 7(2) has a role in the s 32(1) interpretative process (Gummow [168]; Hayne [280]; Heydon [427]–[428]; Bell [684]). It remains to be seen whether the involvement of the s 7(2) proportionality test in the interpretative process has any ramifications for the way that test is conducted, having regard to Ch III implications relating to the separation of powers.

    The Charter is not dead; it is pining for the fjords, which of course are somewhere in Europe.

  15. I should clarify what I mean by “outcomes”. I’m not suggesting that the majority view of the High Court on whether s 7(2) has a role in the interpretative process establishes a binding precedent. Rather, I’m suggesting that if the Victorian Court of Appeal does not take the logical step of reversing its previous ruling on that question, the High Court will do so in due course.

  16. I contended above that In cases where a statute limits a right, s 7(2) has a role in the s 32(1) interpretative process (Gummow [168]; Hayne [280]; Heydon [427]–[428]; Bell [684]).

    However, I’ve since noticed that a different majority indicated it may be incompatible with Ch III of the Constitution for the proportionality test to be part of the interpretative process (French [36]; Heydon [439]; Crennan and Kiefel [574].

    Thus, there is considerable uncertainty as to the validity and operation of s 7(2).

    One possibility (apart from amending the Charter) is that the High Court could eventually rule that s 7(2) is invalid to the extent that it’s intended to be applied as part of the interpretative process.

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