In the case of Momcilovic v The Queen & Ors [2011] HCA 34 (8 September 2011), the High Court held that the Charter protects fundamental human rights and maintains parliamentary sovereignty.

By a majority of 6-1, the Court held that s 32(1) of the Charter, which requires that Victorian legislation be interpreted consistently with human rights, is an ordinary principle of statutory interpretation that does not empower the courts to radically re-interpret legislation or subvert parliament’s intent. According to Phil Lynch of the Human Rights Law Centre, which made submissions to the High Court in the matter, “The Court has affirmed that, consistent with the rule of law, the judiciary has an important role to play in upholding human rights. Far from being undemocratic, an independent judiciary which is empowered to interpret laws to protect rights and freedoms is a fundamental feature of our liberal democracy.”

By a majority of 4-3, the High Court also held that the power conferred by parliament on the courts to make a declaration notifying parliament where legislation may be incompatible with human rights is valid. “Declarations of Inconsistent Interpretation under the Charter play an important role in calling the attention of parliament and the people to laws that may be inconsistent with human rights,” said Mr Lynch. Such declarations do not affect the validity of legislation, but instead act as a trigger for parliament to consider whether a particular law should be amended to better protect the human rights of all Victorians.

The High Court’s extensive consideration of the Charter arose in an appeal by Vera Momcilovic against her conviction for drug trafficking. The Court quashed her conviction and ordered a re-trial. It is important to note, however, that the conviction was not quashed because of the Charter. Instead, the High Court upheld the appeal on the basis that the Victorian courts in which she was convicted had misconstrued the operation of the Drugs Act.

According to Mr Lynch, the High Court’s decision is particularly important and timely in light of the Baillieu Government’s current review of the Charter. “Any suggestion that the Charter shifts power to judges and usurps parliamentary sovereignty can be laid to rest,” said Mr Lynch. “There is also no longer any doubt, if ever there was, that the Charter is valid and constitutional”.

Mr Lynch said that the High Court’s decision has helpfully identified the need to clarify the operation of s 7 of the Charter, which relates to permissible limitations on rights. Earlier in the week, on Tuesday, the Victorian Court of Appeal decision in Sudi also identified the need to clarify s 39, which relates to legal proceedings. “These landmark judgments are very timely,” said Mr Lynch. “Together, they affirm the validity and operation of the Charter but also helpfully chart the course for minor amendments to the Charter to increase certainty in the interpretation of laws and provide Victorians with better access to remedies for human rights breaches.”

The judgment is available at http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html.

ENDS

HRLRC Director of Advocacy and Strategic Litigation, Emily Howie, said it is important to keep in mind that the police shooting of Tyler Cassidy was not a one off.

“More people are shot dead by police in Victoria than in any other state. Unless the Victoria Police force fundamentally change the way they deal with young people in crisis, history will continue to repeat itself,” Ms Howie said.

The four police officers are seeking a finding from the Coroner that Tyler’s death was a suicide, but Ms Howie is concerned such theories only serve to distract from the need for urgent systemic changes.

“Instead of using the inquiry to try to justify this tragic shooting, we should be focusing on how we prevent similar deaths from happening again and how best to equip officers with the ability to defuse tense situations. If there is such a phenomenon as ‘suicide by cop’ then our police need protocols and training to deal with such circumstances in ways that do not result in police fulfilling death wishes,” Ms Howie said.

Despite recent limited improvements to police training, the HRLRC said a cultural shift was required within the police force to ensure that protocols and training recognised the importance of communication and de-escalation skills when dealing with people in crisis.

Only 73 seconds elapsed between the police first approaching Tyler and him being shot dead, in which time Tyler was sprayed with capsicum foam twice, took a phone call and was shot 10 times.

“Tyler may have been highly agitated and distressed, but police protocols and training should provide officers with the ability to safely deal with a wide range of circumstances without resorting to lethal force,” Ms Howie said.

The HRLRC also said to be effective all such investigations into serious police violence need to be independent.

“It is no use having the police investigate themselves. Not only is it commonsense to ensure investigations into police violence are independent, but it is also in keeping with international human rights law and the Victorian Charter of Human Rights,“ Ms Howie said.

A redacted copy of the HRLRC’s submission can be found here:  Closing HRLC Submissions to Coronial inquest into death of Tyler Cassidy

The hearing of the special leave application in the matter raised complex questions concerning the interaction between the Charter, the Australian Constitution and the Drugs, Poisons and Controlled Substances Act 1981 (Vic), under which Ms Momcilovic had been convicted of trafficking in methamphetamine.  These included potential inconsistency between the Victorian offence provisions and their Commonwealth equivalents under s 109 of the Constitution, as well as the issue of whether the Charter required the court to exercise non-judicial power.  The parties to the High Court appeal were the Appellant, the Director of Public Prosecutions, the Victorian Attorney-General and the Victorian Equal Opportunity and Human Rights Commission.   Pursuant to s 78A of the Judiciary Act 1903 (Cth), the Commonwealth Attorney-General and the Attorneys-General of South Australia, the Australian Capital Territory, New South Wales and Western Australia also intervened in the proceedings. 

With respect to the Charter arguments, the Appellant generally adopted the submissions put on behalf of the Commission.  Those submissions focused on the construction of s 32 of the Charter in the context of the Charter as a whole, and the impact of that provision on s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which operates to reverse the burden of proof in certain circumstances.  In particular, the Commission submitted that the phrase ‘compatible with human rights’ in s 32 should be understood so that a measure will be considered to be compatible with rights, if that measure does not limit any of the rights in Part 2 of the Charter ‘in a way that is not a reasonable limit that is demonstrably justifiable having regard to the factors identified in s 7(2)’.  Contrary to the decision of the Court of Appeal, the Commission submitted that s 7(2), the ‘limitations’ provision, informs the interpretive obligation provided by s 32 of the Charter.  With regard to the effect of the Charter on Victorian legislation which could not be interpreted consistently with the rights protected by the Charter, the Commission suggested that the infringing legislation is ‘impliedly repealed’.

Significantly, the Attorney-General of Victoria amended its position taken in the Court of Appeal by submitting that s 32 of the Charter should be applied like any other principle of statutory interpretation, and that an ‘ordinary’ interpretation of legislation need not be established before its application.  The Attorney-General also emphasised that s 32 preserves the primacy of the purpose of the enacting legislature consistently with s 35(a) of the Interpretation of Legislation Act 1984 (Vic).  That provision requires legislation to be interpreted such that a construction which would promote the purpose or object underlying an Act is preferred to one that does not.  However, the Attorney-General for Victoria concurred with the submissions of the Commission on the relationship between ss 32 and 7(2), stating that the ‘limitations’ provision is an integral part of and so informs the operation of s 32 of the Charter. 

The submissions of the Commonwealth Attorney-General were addressed to the constitutional law implications of the matter, including s 109 inconsistency and the constitutional limits of interpretation.  On the issue of whether the Charter may require courts to exercise non-judicial power, the Commonwealth Attorney-General submitted that it is too narrow a notion to think that the line between judging and legislating is somehow crossed simply because the court ‘strays from a literal meaning of the statutory text.’  The Commonwealth Attorney-General submitted that on any of the potential constructions of ss 32 and 7 of the Charter put to the Court, there was nothing antithetical to the exercise of judicial power.  Similarly, a declaration of inconsistent interpretation made under s 36 of the Charter should be regarded as the exercise of judicial power, or alternatively, the exercise of a power ancillary or incidental to the exercise of judicial power. 

The Attorney-General for the ACT emphasised the objects of the Charter: ‘The object “being to protect” immediately emphasises that the Act is not merely aspirational. It is not simply about promoting human rights, it is about affording protection to them.’ 

The submissions of the HRLRC, which differed from those put forward by all other parties and interveners, reinforced the submissions which had been accepted by the Court of Appeal.  The HRLRC submitted that s 7(2) of the Charter does not form part of the process of interpretation of statutory provisions under s 32.  The first step in the application of the Charter must be interpretation of the relevant statutory provision by reference to the rights contained in Part 2 of the Charter, and not by reference to those rights subject to limitations.  This process determines the scope of the right in question and whether the right is limited by the statutory provision.  It is only at the next stage that s 7(2) is applied in order to assess whether any limitation on a right is reasonable and can be demonstrably justified in a free and democratic society.  In the HRLRC’s submission, evidence or other material will ordinarily be required from the party seeking to justify any limitation on a right protected by the Charter.  Further, the approach which inserts s 7(2) into the process of interpretation is insufficiently protective of human rights and therefore does not give best effect to the Charter.

The Court’s decision was reserved.

The HRLRC was assisted in this matter on a pro bono basis by Mark Moshinsky SC and Chris Young of Counsel, together with Allens Arthur Robinson.

Katherine Cooke is a lawyer at Allens Arthur Robinson

The Human Rights Law Resource Centre has intervened to provide the Coroner with assistance on the relevance of the Victorian Charter to the proceeding.

The HRLRC’s submissions in the proceeding to date include:

• Submissions on Scope of the Inquest
• Submissions on the Investigation of Deaths Associated with Police Contact

The HRLRC’s focus will be on the independence of the investigation, which is a requirement of the right to life, as well as the adequacy of systems in place to protect life, such as policies, procedures and training on use of force and critical incident management.  Particular emphasis will be placed on the need for police to be trained and ready to deal with people in the community who are vulnerable, such as children and people in mental health crisis. 

Prior to the hearing, the Coroner requested that the HRLRC provide submissions on the what models for investigating fatal police shootings is available in Victoria and the recommendations that she should make in relation to independent investigations.  Those submissions have been provided to the Coroner, and are available above.

In short, the HRLRC has asked the Coroner to recommend the establishment of a body that is heirarchically, practically and institutionally independent of the Victoria Police and that is empowered to conduct primary investigations into deaths in custody or associated with police contact.  Such a body should have carriage of the investigation at the earliest practical point, within hours of an incident, and should be given the responsibilities of primary investigators, such as interviewing witnesses and gathering evidence.  In terms of the method of investigation, police should be treated no differently from other members of the public involved in criminal investigations, and statements from members involved in the shooting should be taken within 24 hours and must be video recorded.

The coronial hearing is listed to run for five weeks.

The HRLRC is being assisted on a pro bono basis in this matter by Allens Arthur Robinson, together with Brian Walters SC and Sam Ure of Counsel.

If granted leave, the HRLRC’s submissions are directed to the role that s 7(2) of the Charter plays in relation to:

• s 38 of the Charter when assessing the lawfulness of actions or decisions of public authorities; and
• the human rights contained in Pt 2, and particularly the right to privacy and reputation in s 13 and its express protection of a right against unlawful or arbitrary interference.

In essence, the HRLRC’s submissions will seek to address the following questions:

• Is an action or decision of a public authority only unlawful within the meaning of s 38 of the Charter if that action or decision cannot be justified pursuant to s 7(2) of the Charter?
• Is the scope of each of the rights enacted in Pt 2 of the Charter qualified by s 7(2) of the Charter?

The matter is listed for hearing by the Court of Appeal on 18 November 2010.

The case is a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006.  The Amendment Act results, inter alia, in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details.  Previously, the electoral roll remained open for a period of seven days after the issue of the writ.

According to the AEC, historically, the calling of an election has resulted in significant numbers of persons enrolling or changing enrolment during the 7 day period, particularly young Australians.  The 7 day period enabled the AEC to advertise and promote enrolment and target particular groups with information campaigns, including Indigenous Australians and people experiencing homelessness.  At the 2004 Federal Election, approximately 423,000 people enrolled, re-enrolled or updated enrolment during the 7 day period.

The purpose of the relevant provisions of the Amendment Act was stated to be to enhance the integrity of the electoral roll.  According to the AEC, however, early close of the rolls does ‘not improve the accuracy of the rolls for an election’ and makes them ‘less accurate, because less time will be available for existing electors to correct their enrolments and for new enrolments to be received’.  An Australian National Audit Office performance audit of the roll in 2001/02 found that it was of ‘high integrity’ and that there was no evidence of widespread or organized fraud that needed to be addressed by closing the rolls early.

The Parliamentary Joint Standing Committee on Elections (2001, 2005) and the Senate Finance and Public Administration Committee (2006) have consistently found that the voters most adversely affected by the early close of the rolls are young Australians, and those with limited access to information, knowledge of the electoral system or means of enrolment, including people experiencing homelessness, Indigenous Australians, people with disability and Australians from non-English speaking backgrounds.  By way of contrast, Article 25 of the International Covenant on Civil and Political Rights (which has been ratified by Australia) provides that every citizen has the right and should have the opportunity, without discrimination or any unreasonable restrictions, to vote.  Article 25 has been interpreted by the UN Human Rights Committee to provide that ‘States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed.’ (HRC, General Comment No 25).

 Pursuant to the principles established by the High Court in Roach v AEC, the plaintiffs will argue that the early close of the rolls is a limitation or impairment of the right to vote, that the purpose of the impairment is not demonstrably justified, and that the means of achieving that purpose are not reasonably appropriate and adapted, or proportionate, to the maintenance of the constitutionally prescribed system of representative government.  The plaintiffs will also argue that the early close of the roll and the consequent disenfranchisement of otherwise eligible voters, is incompatible with the Constitutional requirement (ss 7 and 24) that the Houses of Parliament be ‘directly chosen by the people’.

On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment.  The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis. 

The judgment affirms the principle – well-established in international human rights jurisprudence – that prisoners should not be subjected to hardship or constraint other than that which necessarily results from the deprivation of liberty.  Particular attention is paid to the fundamental importance of prisoners’ access to healthcare and IVF treatment is recognised as legitimate treatment necessary for the preservation of health. 

This matter was run on a pro bono basis by the Human Rights Law Resource Centre, together with Blake Dawson, Debbie Mortimer SC and Michael Borsky of Counsel. 

Facts

Ms Castles was convicted of social security fraud in November 2009 and sentenced to three years imprisonment, to be released on her own recognisance after 18 months.  She is currently imprisoned at HM Prison Tarrengower, a minimum security women’s prison with an emphasis on release preparation and community integration. 

Prior to her incarceration, Ms Castles had been receiving IVF treatment for over a year.  From 27 November 2009, Ms Castles and her lawyers made repeated requests for approval for Ms Castles to continue to access IVF at her own cost, emphasising that she would become ineligible for treatment from December 2010 by reason of her age.  By late-April 2010, the Secretary for the Department of Justice had still failed to make a decision, despite the prospects of Ms Castles becoming pregnant through IVF decreasing significantly with the passage of time. 

Ms Castles commenced proceedings on 23 April 2010 with an application for interlocutory relief which was refused (see Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)). 

On 3 May 2010, the Secretary of the Department of Justice made a decision to deny Ms Castles’ request to access IVF treatment.  The Secretary reasoned that Ms Castles ‘does not have an entitlement to this form of medical treatment’ and cited, among other things, resource constraints and the precedent that may be set by allowing Ms Castles to access treatment.  

At the full hearing Ms Castles argued that she had a right under s 47(1)(f) of the Corrections Act 1986 (Vic) to access IVF treatment.  Section 47(1)(f) provides that all prisoners have a right to ‘have access to reasonable medical care and treatment necessary for the preservation of health’. 

Ms Castles also relied on her rights under the Charter of Human Rights and Responsibilities Act 2006 to privacy and family (s 13), equality (s 8) and to humane treatment in detention (s 22) and on common law duties owed to her as a prisoner. 

Decision

Emerton J found that Ms Castles has a right under s 47(1)(f) of the Correction Act to undergo IVF treatment.  The Corrections Act was found to entitle prisoners to ‘do more than remain in a “holding pattern” with respect to their heath while imprisoned.’

Her Honour held that IVF treatment is both necessary for the preservation of Ms Castles’ reproductive health and reasonable given:

• the commitment to the treatment that Ms Castles has already demonstrated;
• her willingness to pay for further treatment; and
• her age and the fact that she will become ineligible for further treatment before she is released from prison.

Accordingly, Ms Castles will be eligible for permits to leave the prison on a visit-by-visit basis, providing that adequate consideration has been given to security and resource issues.     

The Court recognised that IVF is ‘a legitimate medical treatment for a legitimate medical condition’.  In a landmark statement on the status of reproductive healthcare, her Honour held:

I see no proper basis to treat IVF treatment differently from other forms of medical intervention that are considered to be necessary to enable people to live dignified and productive lives, unencumbered by the effects of disease or impairment.

Application of the Victorian Charter

The Charter did not determine the issue before the Court.  Nevertheless, the judgment includes extensive comment on various Charter provisions. 

The right to humane treatment in detention (s 22)

The Court found that the right to humane treatment in detention:

[r]equires the Secretary and other prison authorities to treat Ms Castles humanely, with respect for her dignity and with due consideration for her particular human needs.

Her Honour took as a starting point that prisoners should not be subjected to hardship or constraint other than that which results from the deprivation of liberty and accepted that:

access to health case is a fundamental aspect of the right to dignity.  Like other citizens, prisoners have a right to…a high standard of health.  That is to say, the health of a prisoner is as important as the health of any other person.  

The Court stated that the right articulated in s 47(1)(f) of the Corrections Act ‘must be construed consistently with the requirement that prisoners be treated with humanity and with respect for their human dignity’.  This right does not entail access to any treatment that a prisoner may want or have access to were he or she not imprisoned, but does require provision of ‘a variety of facilities, goods, services and conditions necessary for the realisation of a high standard of health’. 

The right to privacy (s13)

The Court found that while the right to privacy is a fundamental ‘right of considerable amplitude’, it was not engaged in the proceeding.  Relying largely on the Charter’s Explanatory Memorandum, which states that ‘[i]t is not Parliament’s intention to create a right to found a family’, her Honour held that:  

the Charter rights which might otherwise have encompassed rights to ART, recognition of legal parentage and adoption should be construed as not encompassing such rights. 

The Victorian Equal Opportunity and Human Rights Commission, intervening under s 40(1) of the Charter, argued against this interpretation and its submissions were adopted in full by the plaintiff.  The Commission submitted that the omission of a right to found a family from the Charter was merely intended to ensure that the Charter did not pre-empt the results of a Victorian Law Reform Commission reference on assisted reproduction and adoption and should not restrict the scope of other rights that are protected in the Charter. 

The right to equality (s 8)

The Court concluded that there had been no breach of the right to equality and non-discrimination on the basis of impairment.  The Court found that Ms Castles had not received less favourable treatment than that afforded to a fertile prisoner who wishes to become pregnant.  Further, infertility was found not to be ‘a substantial reason’ for the denial of a permit to access IVF treatment as required by the Charter read in conjunction with s 8(2) of the Equal Opportunity Act 1995 (Vic). 

Obligation to ‘give proper consideration’ to human rights (s 38(1))

The plaintiff submitted that the Secretary had failed to give ‘proper consideration’ to human rights, as required by s 38(1) of the Charter.  In response, the defendants referred to briefings from Justice Health and Corrections Victoria which had been provided to the Secretary and which considered human rights (although relevant sections were redacted to remove legal advice from the Victorian Government Solicitor’s Office).  

In consideration of this issue, the Court held that the requirement to give proper consideration ‘requires a decision maker to do more than merely invoke the Charter like a mantra’ and to ‘seriously turn his or her mind to the possible impact of the decision on a person’s human rights’, but ‘should not be a sophisticated legal exercise’.  Rather, proper consideration should be taken to involve:

understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. 

It was held that consideration of human rights in accordance with s 38(1) of the Charter should not be ‘overly scrutinised by the courts’. 

Use of international jurisprudence in defining rights (s 32(2))

In considering the content and application of rights, the Court affirmed the relevance of human rights decisions and commentary from overseas, referring to jurisprudence from the European Court of Human Rights, the UK House of Lords, New Zealand, UN treaty bodies and international human rights experts.  Her Honour stated that consideration of international jurisprudence:

is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in the international context.

This approach may be contrasted with that taken in another recent judgement of the Supreme Court, WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010), in which Kaye J declined to rely upon international jurisprudence in his interpretation of the right to privacy under the Charter.   

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/310.html. 

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre

The detailed opinion concludes that the Australian Government’s policy is unlawful under international and Australian law.  The policy – and persons acting under the policy – are susceptible to challenge in the Federal Court of Australia and the High Court of Australia.  A complaint could also be lodged with the United Nations Human Rights Committee.

The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of Justice from refusing to grant the permits and approvals necessary to access IVF treatment, contrary to the Victorian Charter of Rights.  The Court did, however, order that the matter be expedited and brought on for speedy trial within a month given the urgency of the issues. 

Facts

The plaintiff, Kimberley Castles, is a 45 year old woman currently held as a low security prisoner at Tarrengower prison.  She is serving a three year sentence, commencing November 2009, for social security fraud.  Prior to her imprisonment, Ms Castles was undertaking IVF treatment.  The course of treatment was interrupted by her imprisonment and she will become ineligible for IVF when she turns 46 in December 2010.  Her chances of becoming pregnant diminish every month without treatment. 

Following her imprisonment, Ms Castles made repeated requests to the Secretary of the Department of Justice to grant the approvals necessary for her to continue IVF treatment while a prisoner.  When the Secretary failed to make a decision or grant the approvals, Ms Castles sought an injunction to restrain the Secretary from ‘continuing to neglect, fail or refuse to grant the permits and approvals necessary to access IVF treatment’. 

In seeking this order, Ms Castles relied on her rights under the Charter of Human Rights and Responsibilities to privacy and family (s 13(a)), to equality and non-discrimination (s 8), to humane treatment in detention (s 22) and to protection of family and children (s 17) and the Secretary’s correlate duty, in determining whether to grant the necessary approvals, to properly consider and act compatibly with these human rights (s 38).  Ms Castles also relied on provisions of the Corrections Act and the common law and fiduciary duties owed to her as a prisoner. 

Decision

Justice Osborn held that there was a serious issue to be tried in respect of the rights, but that the balance of convenience did not favour the grant of the injunction.  The Court did determine, however, that the matter was ‘deserving of expedition’ and ordered that it be ‘brought on for hearing within one month’. 

The Court arrived at the conclusion than an interlocutory injunction should not be granted for a number of reasons, including that:

• The Secretary ‘accepted that the plaintiff is entitled to determination of her application for a permit in accordance with law and the defendants have identified specific factual considerations properly regarded as relevant to the exercise of that discretion.’
• The plaintiff is not presently legally entitled to IVF treatment under the Assisted Reproductive Treatment Act 2008, as she has not yet received the necessary criminal record and child protection checks.  
• The ‘operational considerations and constraints’ raised by the defendants, including in relation to prison safety, security and ‘the provision of adequate facilities’ are matters of ‘serious public importance’.  Justice Osborn considered that the Court is not equipped to ‘second guess the Secretary’s exercise of discretion in circumstances where it appears on the evidence that it was open to her [to make the decision she did], and she is in a position to assess operational issues, which the Court is not’. 
• ‘One their face’, the operational considerations referred to above ‘fall within the category of matters comprehended by s 38(2) of the Charter’ (which provides that a public authority is not bound to act compatibly with human rights if, as a result of a statutory provision or otherwise under law, the public authority could not reasonably have acted differently or made a different decision). 
• On the material before the Court, the case that the Secretary was ‘bound to make a decision contrary to that which she has made, is weak’.
• A speedy trial of the matter can be fixed and liberty to apply for further orders can be reserved to the parties.

Accordingly, the matter was fixed for trial on 1 June 2010. 

The decision is available at www.austlii.edu.au/au/cases/vic/VSC/2010/181.html. 

Phil Lynch is Executive Director of the Human Rights Law Resource Centre. 

The Centre is acting for Ms Castles, together with Blake Dawson, Ron Merkel QC and Michael Borsky of Counsel. 

• s 32(1) of the Charter is not a ‘special’ rule of statutory interpretation, but rather a statutory directive that requires all persons engaged in the task of statutory interpretation to ‘explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights’;
• the issue of ‘justification’ pursuant to s 7(2) arises only if it is not ‘possible’ to interpret legislation compatibly with human rights;
• any infringement of human rights should be ‘demonstrably justified’ by clear, cogent and persuasive evidence;
• where an infringement can not be demonstrably justified, the Court should grant a Declaration of Inconsistent Interpretation, such declarations being ‘central’ to and ‘exemplifying the dialogue model of human rights legislation’. 

In the present case, the Court of Appeal found that a reverse onus provision infringed the right to the presumption of innocence in a purposive manner that could not be cured by s 32 or justified by s 7.  Accordingly, the Court indicated its intention to issue a Declaration of Inconsistent Interpretation, which would effectively remit the provision to parliament for reconsideration but give parliament ‘the final say’. Facts

The applicant, Vera Momcilovic, was convicted of one count of drug trafficking in the County Court.  The drugs were found in the applicant’s apartment.  Pursuant to s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’), the applicant was deemed to be in possession of the drugs unless she ‘satisfie[d] the court to the contrary’.  Thus, s 5 of the DPCS Act imposes on a defendant the legal burden of disproving possession and, when read in conjunction with s 73 of the Act, means that ‘upon proof by the prosecution that a drug of dependence was found “upon any land or premises occupied by” that person, then unless he/she satisfies the Court to the contrary, he/she is deemed to be in possession of that drug.’

The applicant appealed against conviction and sentence.  The appeal against conviction proceeded on the ground, among others, that s 32 of the Charter requires that s 5 of the DPCS Act be interpreted as placing only an evidentiary burden on an accused. 

The Human Rights Law Resource Centre was given leave to appear as amicus curiae and make written and oral submissions on the application of the Charter.  The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission also intervened in the proceeding, pursuant to ss 34 and 40 of the Charter, respectively. 

Decision

The Court refused the appeal against conviction, holding that it was not ‘possible’ to interpret s 5 consistently with the right to the presumption of innocence.  Accordingly, the Court notified the Attorney-General and the Commission of its intention to issue a Declaration of Inconsistent Interpretation.

Statutory Interpretation under the Charter

Section 32(1) of the Charter requires that ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’. 

The Court held that this provision 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’.

Instead, the Court characterised s 32(1) as a ‘statutory directive’ that requires all persons engaged in the task of statutory interpretation to ‘explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights’.  The Court concluded that:

“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.  The Human Rights Law Resource Centre’s submission to this effect was correct.”

In reaching this conclusion, the Court endorsed the decision of Elias CJ in Hansen [2007] 3 NZLR 1. 

Accordingly, the Court held that, 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. 

If the limitation is not demonstrably justified pursuant to s 7(2), a Court may issue a Declaration of Inconsistent Interpretation.

The Court distinguished this approach from that of the House of Lords in Ghaidan, stating that, ‘s 32(1) was not intended to create a “special”’ rule of statutory interpretation’ and concluding that:

“our view that s 32(1) does not permit a departure from the intention of the enacting Parliament is reinforced by the fact that s 32(1) requires provisions to be ‘interpreted’ compatibly with human rights.  “Interpretation” is what courts have traditionally done.”

In the present case, the Court held that the reverse onus established by s 5 of the DPCS Act was ‘not so much an infringement of the presumption of innocence as a wholesale subversion of it’, contrary to s 25 of the Charter.  The Court iterated, however, that ‘the choice between a legal burden and an evidentiary burden is a legislative choice’ and that it is not ‘possible’ for a Court to substitute an evidentiary onus for the legal onus: ‘If that substitution is to be made, it is a matter for Parliament’. 

Reasonable Limitations under the Charter

The Court next considered whether the limitation on the presumption of innocence imposed by s 5 of the DPCS Act was ‘demonstrably justified’ in accordance with s 7(2) of the Charter. 

On this issue, the Court endorsed the approach of Dickson CJ in Oakes [1986] 1 SCR 103, regarding the need for clear, cogent and persuasive evidence in order to demonstrably justify a human rights infringement.  After highlighting that there was no evidence before the Court to ‘establish that effective prosecution…depends on the reverse onus’, the Court stated:

“this was a case where evidence was required.  The mere assertion that the reverse onus was essential to the effective prosecution of trafficking offences could never have been sufficient by itself to establish that fact.  There may be circumstances where the justification for interfering with a human right – and for doing so by the particular means chosen – is self-evident, but they are likely to be exceptional.  The government party seeking to make good a justification case under s 7(2) will ordinarily be expected to demonstrate, by evidence, how the public interest is served by the rights-infringing provision.  The nature and extent of the infringement of rights sought to be justified will usually determine how much evidence needs to be led, and of what kind(s).”

In the absence of evidence, the Court concluded that there was no demonstrable justification (or even a reasonable justification) for reversing the onus. 

Declarations of Inconsistent Interpretation under the Charter

Having reached the conclusions above, the Court notified the parties of its intention to make a Declaration of Inconsistent Interpretation under s 36(2) of the Charter. 

Significantly, the Court noted that, contrary to the approach under the Human Rights Act 1998 (UK), such Declarations should not be seen as a ‘last resort’ but rather, as reflected in parliamentary debates about the Charter, as ‘epitomising the intended relationship between the courts and the legislature’ in the dialogue model.  On this point, they concluded that

“the making of a declaration of inconsistent interpretation accords more closely with this conception of dialogue, and in particular with the avowed purpose of ‘giving Parliament the final say’, than would an expanded view of ‘interpretation’ which allowed courts to depart from the plain meaning of a statutory provision and the intent of Parliament thereby conveyed.  Under the Charter, the concept of the ‘final say’ is given direct expression in the obligation of the responsible Minister to table in Parliament a written response to a declaration of inconsistency.”

If a Declaration is made, s 37 of the Charter requires that the Attorney-General table this Declaration, together with his written response, in Parliament within six months. 

The decision is available at http://www.austlii.edu.au/au/cases/vic/VSCA/2010/50.html. 

Phil Lynch is Director of the Human Rights Law Resource Centre