Appellant v Respondent

Appellant v Respondent - [2012] VSC 407 - VSC 2012 case summary — Zoe

[161]

Nor is there any reason to suppose that parliament's purpose in enacting s 15 of the Charter was to confer a right of free speech which included the right to engage in misleading and deceptive conduct in trading and commerce ... [T]here is every reason to conclude that Parliament did not envisage the right of freedom of expression conferred by s 15 of the Charter as including a right to engage in misleading and deceptive conduct in trade and commerce. The logical implication of s 15 is that it was intended to incorporate rather than add to common law rights and freedoms of free speech in trade and commerce.

If there were any doubt about that, s 15(3) in terms makes clear that the freedom of expression conferred by the section is subject to reasonably necessary restrictions to respect the rights and reputation of other persons and, in my view there can be no doubt that the proscription of misleading and deceptive conduct in trade and commerce is reasonably necessary to respect the rights of other persons.

...

In the sense that each member of society has a right not to be subjected to offensive material, he or she also has a right not to be misled or deceived in trade or commerce ... Admittedly, it would not qualify as a right stricto sensu ... But it would amount to a mesonomic right or privilege in the nature of a de facto interest or claim which is indirectly capable of protection by law ... Article 10(2) of the [ECHR] is not restricted to rights strictly so called. It extends, at least, to the kind of mesonomic rights which in European parlance are conceived of as an indisputable imperative. The 'rights' referred to in s 15(3) of the Charter should be viewed in a similar fashion. Section 5 of the Charter lends support to that conclusion.

Approaching s 15(3) in accordance with the cannons of statutory construction dictated by Project Blue Sky thus implies that 'rights' includes the de facto interest or claim of a member of society not to be misled or deceived in trade or commerce.[68]

[216]

The effect of ss 32(1) and s 7(2) of the Charter was considered by the High Court in Momcilovic v The Queen. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ concluded that s 32(1) does not alter the duty of a court as defined in Project Blue Sky Inc v Australian Broadcasting Authority, 'to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. It simply expands the range of background considerations against which the effect of a provision falls to be assessed. ...

Their Honours reached different views as to whether s 7(2) of the Charter informs the interpretive process under s 32(1). French CJ, Crennan and Kiefel JJ concluded that 'the logical structure of s 7(2)' is such that 'it cannot be incorporated into the content of the rights and freedoms set out in the Charter' and, therefore, 'cannot inform the interpretive process which s 32(1) mandates'. ...

In contrast, Gummow, Hayne and Bell JJ held that the relationship between s 32(1) and s 7(2) is similar to the relationship between s 5 and s 6 of [the] New Zealand Bill of Rights Act 1990 and so, as McGrath J of the New Zealand Supreme Court concluded in Hansen:

As between ss 5 [s 7(2)] and 6 [s 32(1)] it will usually be appropriate for a Court first to consider whether under s 5 [s 7(2)] there is scope for a justified limitation of the right in issue. The stage is then set for ascertaining if there is scope to read the right, as modified by a justifiable limitation, as consistent with the other enactment.

According to Gummow, Hayne and Bell JJ, it follows that s 32(1) is directed to the interpretation of statutory provisions 'in a way which is compatible with the human right in question, as identified and described in Pt 2, including, where it has been engaged, s 7(2)'. Heydon J concluded that ss 32(1) and s 7(2) of the Charter were invalid.

There being no majority view as to the operation of s 7(2), one must deal with the point in the way that one thinks to be correct. This Court held in Momcilovic that s 7(2) is to be considered only after the statutory provision in question has been interpreted in accordance with s 32(1). In my view it is appropriate to adhere to that approach until and unless the High Court determines that it is incorrect.[91]

Parties

Applicant/Plaintiff:

# Magee

Respondent/Defendant:

Delaney \[2012\] VSC 407

Legislation Cited (88)

Vagrants, Gaming and Other Offences Act 1931(Qld)

Human Rights and Responsibilities Act 2006

Vagrants, Gaming and Other Offences Act 1931(Qld)

Human Rights and Responsibilities Act 2006

Procedure Act 2009

Legislation Act 1984

Fair Trading Act 1999

Summary Offences Act 1981

Bill of Rights Act 1990

Public Order Act 1986

Offences Act 1966

Zealand Bill of Rights Act 1990

Prevention Act 2007

Vagrants, Gaming and Other Offences Act 1931(Qld)

Human Rights and Responsibilities Act 2006

Procedure Act 2009

Legislation Act 1984

Fair Trading Act 1999

Summary Offences Act 1981

Bill of Rights Act 1990

Public Order Act 1986

Offences Act 1966

Zealand Bill of Rights Act 1990

Prevention Act 2007

Vagrants, Gaming and Other Offences Act 1931(Qld)

Human Rights and Responsibilities Act 2006

Procedure Act 2009

Legislation Act 1984

Fair Trading Act 1999

Summary Offences Act 1981

Bill of Rights Act 1990

Public Order Act 1986

Offences Act 1966

Zealand Bill of Rights Act 1990

Prevention Act 2007

Procedure Act 2009

Legislation Act 1984

Fair Trading Act 1999

Summary Offences Act 1981

Bill of Rights Act 1990

Public Order Act 1986

Offences Act 1966

Zealand Bill of Rights Act 1990

Prevention Act 2007

Vagrants, Gaming and Other Offences Act 1931(Qld)

Human Rights and Responsibilities Act 2006

Procedure Act 2009

Legislation Act 1984

Fair Trading Act 1999

Summary Offences Act 1981

Bill of Rights Act 1990

Public Order Act 1986

Offences Act 1966

Zealand Bill of Rights Act 1990

Prevention Act 2007

Vagrants, Gaming and Other Offences Act 1931(Qld)

Human Rights and Responsibilities Act 2006

Procedure Act 2009

Legislation Act 1984

Fair Trading Act 1999

Summary Offences Act 1981

Bill of Rights Act 1990

Public Order Act 1986

Offences Act 1966

Zealand Bill of Rights Act 1990

Prevention Act 2007

Vagrants, Gaming and Other Offences Act 1931(Qld)

Human Rights and Responsibilities Act 2006

Procedure Act 2009

Legislation Act 1984

Fair Trading Act 1999

Summary Offences Act 1981

Bill of Rights Act 1990

Public Order Act 1986

Offences Act 1966

Zealand Bill of Rights Act 1990

Prevention Act 2007

Vagrants, Gaming and Other Offences Act 1931(Qld)

Human Rights and Responsibilities Act 2006

Procedure Act 2009

Legislation Act 1984

Fair Trading Act 1999

Summary Offences Act 1981

Bill of Rights Act 1990

Public Order Act 1986

Offences Act 1966

Zealand Bill of Rights Act 1990

Prevention Act 2007

Cases Cited (6)

(1997) 189 CLR 579

(2004) 220 CLR 1

(2008) 17 VR 647

(2010) 25 VR 436

(2011) 280 ALR 221

(1996) 184 CLR 501

At a glance

Court

Decision date

Before

Source

Judgment (388 paragraphs)

Parties

Legislation Cited (88)

Cases Cited (6)