Momcilovic v The Queen [2011] HCA 34 - HCA 2011 case summary — Zoe

[628]

"Section 140 seems to me an example of a provision which, though it empowers a court to do an act - the disallowing of a rule - which is not insusceptible of a judicial performance, nevertheless is found to mean, on a clear preponderance of considerations, that the function for which it provides is to be performed as an administrative function, with a more elastic technique, and more of an eye to consequences and industrial policy generally, than could properly be expected of a court. ... The kinds of rules which may be disallowed are described as possessing any of several qualities which are indicated in terms so broad as to be more appropriate for conveying general conceptions to a person engaged administratively in performing a function conceived of as part of a system of industrial regulation than for stating, to a body acting judicially, grounds of jurisdiction which it is to interpret and apply with precision. ... Moreover - and this is the most important consideration of all - s 140 belongs to a group of provisions, comprising all those which deal with the registration and regulation of industrial organisations, which as a group are characterised by the purpose of facilitating the prevention and settlement of inter-State industrial disputes by conciliation and arbitration under the Act. It is difficult to think that s 140 intends a consideration of an organisation's rules to be undertaken otherwise than with a view to the improvement of the organisation as an instrument for the representation of employees in everything connected with the maintenance and restoration of industrial harmony. To read the section as creating a jurisdiction to apply fixed standards to particular situations, and to make decrees with a judicial disregard of consequences, would be plainly incongruous with the scheme of the Act and the terms of the section. In particular, it seems to me to be required, as a matter of practical good sense, that in forming an opinion as to whether a rule of an organisation is 'tyrannical' or 'oppressive', or imposes 'unreasonable' conditions upon the membership of a member or upon an applicant for membership, the repository of the power should look to the effect which the existence or non-existence of the rule will be likely to have upon the working of the machinery of conciliation and arbitration under the Act; and this points unmistakably to an intention that the performance of the function provided for by the section is to be approached in a manner incompatible with the restraints peculiar to judicial power."

[650]

Submissions on the relevance of s 7(2) to s 32(1). The appellant submitted that the Court of Appeal erred in holding, first, that s 7(2) is "not to be taken into account in the interpretive exercise required by s 32(1) of the Charter" and, secondly, that "under s 32, when determining what is 'possible' consistently with the purpose of the provision in question, the court is constrained by the ordinary principles of statutory construction." The appellant criticised the Court of Appeal for adopting an unduly restricted interpretation of s 32(1) as merely codifying the common law principle of legality. This was a correct submission, but also a dangerous one: for if s 32(1) only does that, it would probably not be invalid, but the more it does, the greater the risk to its validity. The appellant submitted that s 7(2) was relevant to the s 32(1) process in requiring the following steps. The first step was to ascertain the meaning of the statute in accordance with ordinary principles of statutory interpretation: she called that "the ordinary meaning". The second step was to ascertain whether the ordinary meaning was apparently incompatible with a relevant right or freedom. If so, the third step was to ascertain whether that incompatibility was nevertheless a justified limit on the right in the light of s 7(2). If the apparent incompatibility was a justified limit, then the legislation was not incompatible with human rights and the ordinary meaning, ascertained in the first step, would prevail. The fourth step must be taken if the ordinary meaning involves an unjustified limit on the right. In that event the court, pursuant to s 32(1), must strive to interpret the legislation in a way that is compatible, or less incompatible, with the right in question if it is reasonably possible, consistently with the purpose of the legislation, to do so. The fifth step arises if it is not reasonably possible to find a compatible (or less incompatible) meaning: in that event the ordinary meaning must be adopted and the Supreme Court may make a declaration of inconsistent operation under s 36.

[655]

The next consideration is that ss 28(1), 32(1) and 38(1) are fundamental operative provisions. They reflect the "main purposes" expressly enacted in, respectively, ss 1(2)(d), 1(2)(b) and 1(2)(c). They reveal "compatibility" as a central conception of the Charter. The function of s 28(1) is to ensure that all provisions proposed for enactment are compatible with human rights; the function of s 32(1) is to ensure that all statutory provisions are interpreted in a way that is compatible with human rights; and the function of s 38(1) is to ensure that public authorities act compatibly with human rights. The concept of "compatibility" is also referred to in ss 28(3), 30 and 31(1). As the Victorian Equal Opportunity and Human Rights Commission submitted, the close association of "compatibility" with s 7(2) analysis is supported by ss 28 and 38. The "statement of compatibility" required by s 28(1) must, by reason of s 28(3)(a), state whether the Bill is "compatible with human rights". That must refer to human rights as reasonably limited by s 7(2). Otherwise a member of Parliament who introduced a Bill limiting human rights, but only in a way that was demonstrably justified in the light of s 7(2), would be required by s 28(3)(b) to state that the Bill was "incompatible with human rights". That would be an untruthful statement, since the Bill actually was compatible with them. It is absurd to interpret the Charter as compelling untruthful statements by members of the legislature to one of its houses. And if in s 38(1) "incompatible with a human right" meant "incompatible with a human right in its absolute form, even if reasonable limits were imposed on it pursuant to s 7(2)", then a public authority would act unlawfully if it acted incompatibly with the absolute human right notwithstanding that it acted compatibly with the right limited in the light of s 7(2). This would be a harsh result. It would be particularly harsh because many "public authorities" falling within the definition in s 4(1) will be quite junior officials like police officers who have to act on short notice without legal guidance by reference to the apparent meaning of legislation, not a different s 32(1) meaning. The Centre answered by pointing to s 38(2). But that only applies where the public authority could not reasonably have acted differently or made a different decision. It does not apply where the public authority has choices.

[668]

The approach of the Centre would lead to the courts finding more legislation to be incompatible with human rights, or to be something which "breaches"[609] human rights, even though the incompatibility was minor and even though its existence flowed only from the need to establish a reasonable and justified limit - thereby, for example, operating to protect some other right. The Centre said its approach protected human rights better because it protected an absolute form of them. If the Centre's approach were correct, what is the significance of s 7(2)? "[I]t being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result."[610] The Centre recognised and endeavoured to meet the difficulty. It submitted that while s 7(2) had nothing to do with s 32(1), it had three possible fields of work. One related to judicial review of a provision. The flaw in this submission is that the Charter does not provide for judicial review: ss 32(3) and 36(5). The Court of Appeal quoted from Elias CJ's dissenting judgment in R v Hansen[611], which referred to "a soft form of judicial review". But Elias CJ said that that was inconsistent with the New Zealand Bill of Rights Act 1990 (NZ), s 4, which does not provide for judicial review either. The second possible field of work for s 7(2) was said to be its relevance when the Supreme Court was deciding whether to exercise its discretion to make a declaration of inconsistent interpretation under s 36(2) that the Court was of the opinion that a statutory provision cannot be interpreted consistently with a human right (ie compatibly pursuant to s 32(1)). There is no indication in s 36 that s 7(2) is relevant in this way. On the Centre's approach s 7(2) is not material in relation to the s 32(1) conclusion that there was incompatibility with a human right, and, if that is so, it is difficult to see why it would be material at the s 36 discretion stage. The third possible field of work was to operate as a reminder "to those making or advising on legislative measures potentially limiting of human rights." That renders s 7(2) only a precatory provision with no practical effect. Section 7(2) would appear to have a much greater significance than that.

[702]

If the word "purpose" in s 32(1) means the purpose found in the statutory language, as is the case with the common law rule and s 15AA of the Acts Interpretation Act 1901 (Cth), there is force in the view advocated by the Attorney-General for the State of Western Australia, for example, that, apart from any s 7(2) problem, s 32(1) is valid, because it does not give the court power to depart from the objectively determined meaning of legislation; it only gives power to ascertain that meaning. Section 32(1), he said, was analogous to the common law principle of legality. That principle rests on an assumption that, unless clear words are used, the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms**[639]. The fundamental rights or freedoms often relate to human rights and are sometimes described as having a constitutional character. He gave illustrations: freedom from trespass by police officers on private property[640]; procedural fairness[641]; the conferral of jurisdiction on a court[642]; and vested property interests[643]. To these may be added others: rights of access to the courts[644]; rights to a fair trial[645]; the writ of habeas corpus[646]; open justice[647]; the non-retrospectivity of statutes extending the criminal law[648]; the non-retrospectivity of changes in rights or obligations generally[649]; mens rea as an element of legislatively-created crimes[650]; freedom from arbitrary arrest or search[651]; the criminal standard of proof[652]; the liberty of the individual[653]; the freedom of individuals to depart from and re-enter their country[654]; the freedom of individuals to trade as they wish[655]; the liberty of individuals to use the highways[656]; freedom of speech[657]; legal professional privilege[658]; the privilege against self-incrimination[659]; the non-existence of an appeal from an acquittal[660]; and the jurisdiction of superior courts to prevent acts by inferior courts and tribunals in excess of jurisdiction[661]. Similarly, the appellant submitted that s 32(1) bears an analogy with s 15A of the Acts Interpretation Act 1901 (Cth) and s 6 of the Interpretation of Legislation Act 1984 (Vic)[662]**.

[717]

The adoption of the Human Rights Consultation Committee's approach in s 32(1) means that s 32(1) goes well beyond the common law and beyond s 15AA. Section 32(1) must, like the Charter as a whole, be interpreted amply, not restrictively. Section 32(1) does not say "consistently with their language" or "consistently with their meaning", but "consistently with their purpose" - a much wider expression. Further, there would be no point in s 32(1) unless its function was to go further than the common law principle of legality by which legislation is assumed not to affect human rights unless clear words are used**[670]. The function of s 32(1) evidently is to make up for the putative failure of the common law rules by legitimising reliance on a much broader kind of "purposive" interpretation going beyond the traditional search for "purpose" as revealed in the statutory words. The Australian Capital Territory experience - first a recommendation for a wide provision, followed by its non-acceptance in 2004, followed by a change in s 30(1) as originally enacted in imitation of the Victorian model, coupled with an expression of admiration for the United Kingdom approach in Ghaidan's case in the Australian Capital Territory Explanatory Statement in 2007[671]** - suggests that those expert in the field see s 32(1) as being much wider than the principle of legality. The language of s 32(1) thus suggests that there is some gap between "purpose" and "interpretative meaning", by which "purpose" controls "interpretation" rather than merely being a reflection of it. In effect s 32(1) permits the court to "disregard the express language of a statute when something not contained in the statute itself, called its 'purpose', can be employed to justify the result the court considers proper."[672] The wider the gap, the more "purpose" is an empty vessel into which particular judges can unrestrainedly pour their own wishes. Judges, having found a mischief, or redefined it to suit their own perceptions, can decide that the words used by the legislature have not caused it to be remedied well, can formulate their own view of what a satisfactory remedy would be, and can decide that the statutory purpose is to supply that remedy**[673]. Ordinary statutory interpretation does not depend on the "purpose" of the statute, but its "scope"[674]. But s 32(1) calls for a different task, for "you simply cannot apply a statute as it is written and remake it to meet your own wishes at the same time."[675]** Section 32(1) commands the courts not to apply statutory provisions but to remake them - an act of legislation.

[724]

The futility of orthodoxy. The parties and interveners in these proceedings were concerned on the whole to give the Charter a narrow interpretation. From their point of view, there were sound tactical reasons for this. There were things to be said to the contrary, mais pas devant les juges. It was important not to scare the horses if a finding of partial or total invalidity was to be avoided. However, an air of futility pervaded the interpretational debate. The adoption by a majority of this Court of a narrow interpretation of s 32(1) ensures validity. But future generations of barristers will be tempted to invite future generations of judges to depart from the narrow interpretation. They may even see it as their duty to yield to temptation. Because of the profound influence which barristers have on the judicial statement of the law, it is likely that those invitations will be accepted, expressly or silently. The judges of this country assert and apply the doctrine of precedent with a stern and unbending rigidity - except so far as it may affect their own conduct. The function of ordinary judicial work is to protect the rule of law. But, though vital, the task can be dreary and mundane. Often interest can only be found in rearranging the conventional order of legal clichés, or tinkering with the tired language of legal tests, or trying to avoid the sterile conflict of stale metaphors. Judicial fires which have sunk low may burn more brightly in response to a call to adventure. Where judicial appetites have been jaded or lost, the call may stimulate and freshen them to grow with what they feed on. In future the decision that s 32(1) is valid will be remembered. Not so the narrow interpretation on which the conclusion of validity rests. In numerous minds forensic oblivion will be its portion. Most of those who will remember it will silently suppress it. Any protest about this will be silenced by a reference to the blessed vagueness of the word "purpose" in s 32(1).

Parties

Applicant/Plaintiff:

# Momcilovic

Respondent/Defendant:

The Queen \[2011\] HCA 34

Legislation Cited (12)

Egg Control Regulations 1939(Cth)

Navigation (Collision) Regulations 1923(Cth)

Hong Kong Bill of Rights Ordinance 1991

Human Rights Act 1998

Prevention of Accidents (Collisions and Signals of Distress) Regulations 1910

Court Rules 2004

Egg Control Regulations 1939(Cth)

Navigation (Collision) Regulations 1923(Cth)

Hong Kong Bill of Rights Ordinance 1991

Human Rights Act 1998

Prevention of Accidents (Collisions and Signals of Distress) Regulations 1910

Court Rules 2004

Cases Cited (249)

Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

(2010) 25 VR 436

(2005) 225 CLR 418

(1913) 15 CLR 531

(1919) 26 CLR 265

(1949) 78 CLR 521

(1907) 5 CLR 233

(1985) 157 CLR 523

(1965) 114 CLR 164

(2011) 85 ALJR 593

(1997) 190 CLR 225

(1908) 6 CLR 309

(1917) 24 CLR 166

(1945) 70 CLR 60

(1992) 37 FCR 298

(1994) 182 CLR 104

(2010) 85 ALJR 213

(2003) 211 CLR 476

(2010) 241 CLR 252

(2009) 239 CLR 446

(2011) 85 ALJR 508

(1998) 194 CLR 355

(2009) 238 CLR 642

(1996) 187 CLR 1

(1908) 7 CLR 277

(1990) 171 CLR 1

(1994) 179 CLR 427

(2004) 221 CLR 309

(2001) 204 CLR 290

(2010) 242 CLR 1

(2009) 237 CLR 501

(1980) 55 ALJR 5

(1938) 60 CLR 336

(1999) 91 FCR 222

(2003) 9 VR 107

(1991) 173 CLR 167

(2008) 233 CLR 542

(1992) 175 CLR 564

(1972) 127 CLR 588

(1954) 90 CLR 353

(2006) 227 CLR 490

(2008) 237 CLR 66

(1921) 29 CLR 257

(1999) 198 CLR 511

(1975) 134 CLR 298

(1998) 193 CLR 346

(1996) 189 CLR 51

(1994) 51 FCR 115

(2000) 200 CLR 591

(1991) 173 CLR 289

(1991) 171 CLR 232

(1977) 52 ALJR 180

(1956) 94 CLR 254

(1955) 92 CLR 177

(1982) 152 CLR 179

(1989) 166 CLR 518

(2004) 223 CLR 575

(2007) 233 CLR 307

(2011) 85 ALJR 746

(1996) 189 CLR 1

(1955) 93 CLR 127

(1971) 124 CLR 468

(1971) 124 CLR 367

(1983) 152 CLR 570

(2002) 211 CLR 119

(2001) 204 CLR 559

(2002) 211 CLR 1

(1930) 43 CLR 472

(2010) 241 CLR 491

(1993) 177 CLR 541

(2001) 207 CLR 278

(1994) 68 ALJR 372

(1987) 162 CLR 645

(1980) 147 CLR 75

(2010) 241 CLR 237

(1957) 97 CLR 323

(1985) 159 CLR 22

(2002) 209 CLR 372

(1915) 20 CLR 425

(2007) 163 FCR 71

(2000) 203 CLR 503

(2005) 223 CLR 251

(2009) 240 CLR 319

(1961) 106 CLR 268

(2009) 238 CLR 1

(2002) 123 FCR 298

(2002) 213 CLR 401

(1990) 169 CLR 214

(1991) 172 CLR 319

(2004) 222 CLR 322

(2005) 224 CLR 322

(2000) 199 CLR 135

(2011) 85 ALJR 398

(1995) 183 CLR 373

(2008) 238 CLR 366

(2010) 240 CLR 651

(2010) 85 ALJR 133

(1972) 127 CLR 421

(1975) 133 CLR 1

(1999) 198 CLR 334

(1923) 32 CLR 596

(1925) 36 CLR 442

(1979) 142 CLR 617

(2003) 216 CLR 161

(2004) 220 CLR 129

(2005) 224 CLR 159

(1953) 87 CLR 144

(1985) 158 CLR 596

(2006) 227 CLR 614

(1948) 76 CLR 1

(2010) 85 ALJR 195

(2000) 204 CLR 82

(1915) 20 CLR 148

(1947) 74 CLR 31

(1956) 95 CLR 177

(1984) 158 CLR 447

(1920) 28 CLR 129

(2011) 277 ALR 332

(1926) 37 CLR 466

(1910) 10 CLR 266

(1998) 195 CLR 337

(1975) 134 CLR 338

(1969) 121 CLR 432

(2001) 207 CLR 21

(2003) 216 CLR 212

(2010) 241 CLR 79

(2008) 236 CLR 101

(1926) 38 CLR 441

(1982) 152 CLR 211

(1937) 58 CLR 528

(1962) 108 CLR 372

(1909) 8 CLR 465

(1994) 179 CLR 388

(1980) 142 CLR 237

(1987) 162 CLR 574

(1942) 66 CLR 557

(1932) 48 CLR 128

(1937) 58 CLR 618

(2000) 204 CLR 158

(1999) 196 CLR 392

(1981) 148 CLR 32

(1989) 168 CLR 340

(1998) 194 CLR 610

(1986) 161 CLR 47

(1989) 168 CLR 289

(1997) 190 CLR 410

(2007) 230 CLR 369

(1920) 29 CLR 1

(1962) 107 CLR 46

(1992) 175 CLR 453

(2004) 216 CLR 595

(2006) 229 CLR 1

(2009) 239 CLR 518

(1997) 191 CLR 119

(1994) 181 CLR 583

(1926) 38 CLR 308

(1959) 107 CLR 208

(1999) 197 CLR 61

(1977) 137 CLR 545

(1974) 131 CLR 338

(1948) 77 CLR 84

(1988) 164 CLR 500

(2005) 228 CLR 357

(1977) 138 CLR 283

(1983) 153 CLR 280

(1956) 94 CLR 367

(1984) 158 CLR 426

(1991) 173 CLR 349

(1997) 191 CLR 1

(2000) 202 CLR 629

(1904) 2 CLR 29

(1925) 37 CLR 36

(1926) 38 CLR 153

(1945) 71 CLR 237

(1975) 133 CLR 369

(1992) 176 CLR 1

(2008) 234 CLR 532

(1915) 20 CLR 54

(1996) 186 CLR 71

(1992) 175 CLR 1

(1931) 46 CLR 73

(1943) 67 CLR 58

(1995) 183 CLR 323

(1943) 68 CLR 87

(1991) 172 CLR 460

(1996) 187 CLR 416

(1957) 100 CLR 277

(1970) 123 CLR 361

(1960) 103 CLR 368

(1943) 67 CLR 25

(1974) 130 CLR 87

(1976) 135 CLR 194

(1993) 43 FCR 565

(1905) 2 CLR 405

(2004) 223 CLR 513

(1989) 64 ALJR 241

(2010) 239 CLR 531

(2011) 85 ALJR 798

(1955) 92 CLR 390

(1937) 56 CLR 746

(1986) 162 CLR 24

(1981) 147 CLR 297

(1991) 29 FCR 157

(1994) 49 FCR 534

(2000) 100 FCR 375

(2002) 209 CLR 126

(1904) 1 CLR 363

(1923) 32 CLR 518

(1927) 39 CLR 245

(1957) 96 CLR 261

(1960) 105 CLR 188

(1987) 162 CLR 514

(1910) 10 CLR 457

(1922) 31 CLR 174

(2002) 213 CLR 543

(1989) 166 CLR 486

(1984) 155 CLR 21

(1992) 176 CLR 239

(2003) 57 NSWLR 212

(1991) 28 NSWLR 443

(1988) 84 ALR 492

(2004) 218 CLR 174

(1977) 140 CLR 236

(2006) 225 CLR 553

(1989) 166 CLR 417

(1982) 150 CLR 49

(1997) 189 CLR 465

(1975) 134 CLR 559

(2008) 234 CLR 418

(1980) 145 CLR 266

(1992) 177 CLR 106

(1997) 189 CLR 520

(1992) 177 CLR 1

(1988) 166 CLR 1

(2001) 205 CLR 399

(1997) 190 CLR 1

(1951) 83 CLR 1

(1997) 187 CLR 384

(1997) 191 CLR 85

(1998) 196 CLR 53

(1938) 59 CLR 556

(1985) 157 CLR 57

(1994) 182 CLR 272

(1994) 179 CLR 297

(1995) 184 CLR 348

(1968) 117 CLR 253

(1920) 28 CLR 23

(2004) 220 CLR 1

(1936) 55 CLR 192

Momcilovic v The Queen [2011] HCA 34

At a glance

Court

Decision date

Before

Source

Judgment (1967 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (249)

Momcilovic v The Queen [2011] HCA 34 (8 September 2011)