Ripe for re-interpretation?

The Jan/Feb 2008 LIJ has a great piece by Oscar Roos on the Charter’s possible impact on criminal litigation, featuring specific examples and paying attention to the Charter’s operative provisions. It’d be great to see more articles like this.

Roos lists the following Victorian statutory provisions whose meaning might have changed on 1st January 2008:

  • s. 462 of the Crimes Act 1958, which extends the circumstances when a citizen can arrest someone to include ‘the case of a person found doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence’. In De Moor v Davies [1999] VSC 416, Warren J held that ‘such circumstances’ can include being told by others of someone’s highly suspicious conduct (in that case, obtaining money using an EFTPOS card without either the password or ID) even if no-one was sure that what he’d done was criminal.
  • s31(5A) of the Sentencing Act 1991, which requires a suspended sentence to be restored if the offender commits another imprisonable offence unless there are ‘exceptional circumstances‘. In R v Steggall [2005] VSCA 278, a man who had committed a number of dishonesty offences received a three year suspended sentence; two-and-a-half years in, he directed some corporations, which is a criminal offence under the Corporations Act for someone with his record; so, a year later, he faced a restoration of his original dishonesty sentence. The Court of Appeal held that ‘exceptional circumstances’ must be ‘outside reasonable anticipation or expectation’, and that mere disproportion or injustice wasn’t enough.
  • ss. 4(2)(aa) & 13 of the Bail Act 1977, which require judges to refuse bail to people charged with various drug offences, treason and murder unless there are ‘exceptional circumstances‘. In DPP v Tang [1995] VSC 220, the Supreme Court held that spending six months in custody while awaiting trial couldn’t be an ‘exceptional circumstances’ because it is well within the usual waiting period.

In each case, Roos thinks that, given the Charter’s right to liberty, the interpretative mandate will demand approaches that are more generous to suspects and defendants. In particular, he suggests that ‘exceptional circumstances’ should not be given a literal interpretation, but rather be tuned to the policy underlying the legislation at hand, the approach taken in the early UK HRA case, R v Offen [2000] EWCA Crim 96 (given that overseas decisions may be considered when exercising the interpretative mandate); so the term in the Sentencing Act should be about disproportionate punishment, while in the Bail Act it should be about low risk defendants.

These arguments are plausible, but Roos doesn’t’t factor in two features of the Charter that the UK HRA lacks. First, the Charter’s interpretation mandate is limited to interpretations that are consistent with ‘the purpose’ of the statutory provisions; I’m not sure, given the arguably unfriendly purpose of the above provisions, that friendlier readings would meet that test. Second, I think Roos ignores  Charter s. 7(2), which allows for reasonable limits on rights. In Hansen v R [2007] NZSC 7, the Supreme Court of New Zealand found that the NZBoRA’s interpretation mandate was limited by its reasonable limits provision, meaning that the obligation to give statutory provisions a rights-friendly interpretation only extends to provisions that unreasonably limit rights. (This was a controversial ruling in NZ, but the structure of the Charter – where the limits provision is in the same part as all the rights – makes it straightforward here.) The result is that Victorian provisions that impinge on liberty do not have to be read (under the Charter, anyway) as narrowly as possible, but rather only as narrowly as necessary to make them reasonable. That means that, if the current readings of the above sections of Victorian law are reasonable limits on the right to liberty, then no re-interpretation is needed.

2 thoughts on “Ripe for re-interpretation?

  1. Pingback: Victoria’s luckiest murder defendant? « Charterblog

  2. Dear Jeremy,

    Thank you for your kind words about my article in the Law Institute Journal.

    I agree with you that I left a number of countervailing factors out e.g. the “limitation” provision in section 7(2).

    One of the difficulties of writing for the LIJ is the strictness of their word limit (2500 words; my article was a little bit over that even in its truncated form). All I could really do within that word limit was to pose some possible uses of the Charter in a simplified fashion without really getting stuck into much of the (devilish) detail. Hopefully, the practitioners who have to tackle this will be able to pick their own way through the various hurdles in the legislation.

    I agree with your comments that the application of the Charter is not as simplistic as I asserted in my article; the purpose of my article within the confines of the word limit was to provoke some thought about its possible uses amongst practitioners.

    It will be interesting to see what transpires over the next year or so; I think the eerie silence on the Western Front to date will continue and the whole thing may fizz into oblivion, notwithstanding the alarmist reporting in papers such as yesterday’s Sunday Age (see comments of Faris et al).


    Oscar Roos

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