R v Momcilovic [2010] VSCA 50

Court of Appeal (Vic)|2010-03-17|Before: MAXWELL P, ASHLEY and NEAVE JJA

VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION

R v Momcilovic (County Court of Victoria, Judge Murphy; applicant sentenced 20 August 2008)

CRIMINAL LAW - Appeal - Sentence - Trafficking methylamphetamine by possession for sale - Quantity 394 grams (mixed) - Judge sentenced applicant on erroneous basis that quantity trafficked was 80% of commercial quantity - Crown concession - Re-sentenced - One year six months' imprisonment - Special considerations - Applicant on bail pending appeal - Appeal delayed because test case - Unserved portion of sentence suspended.

HUMAN RIGHTS - Presumption of innocence - Statutory reversal of burden of proof of possession of drugs - Reversal affected both possession and trafficking offences - Whether possible to interpret provision compatibly with presumption of innocence - Whether limit on presumption demonstrably justified - Declaration of inconsistent interpretation - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7(2), 25(1), 32(1), 36.

STATUTES - Interpretation - Requirement to interpret statutory provisions 'so far as it is possible to do so consistently with their purpose, ... in a way that is compatible with human rights' - Whether court authorised to depart from meaning intended by enacting Parliament - Whether 'special' rule of interpretation - Function of interpretive rules in representative democracy - Principle of legality - Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 not followed - Kracke v Mental Health Review Board [2009] VCAT 646 overruled - Charter of Human Rights and Responsibilities Act 2006 s 32(1).

For the Attorney-General for the State of Victoria (intervening)

For the Victorian Equal Opportunity and Human Rights Commission (intervening)

Victorian Equal Opportunity and Human Rights Commission

For the Human Rights Law Resource Centre (with leave to appear as amicus curiae)

1 After a trial in the County Court, the applicant was convicted of one count of trafficking in a drug of dependence, being methylamphetamine. The maximum penalty for the offence is 15 years' imprisonment.[1] The applicant was sentenced to two years and three months' imprisonment, and a non-parole period of 18 months was fixed.

2 The applicant seeks leave to appeal against both conviction and sentence. (She was granted bail pending appeal because of the Crown concession of sentencing error[2] and because of the likely expiry of the non-parole period before the appeal could be heard and determined.)[3]

3 The circumstances of the offending and the nature of the applicant's defence were summarised by the judge in his reasons for sentence. For convenience, we attach that description as an appendix to these reasons.

4 The critical facts are these. The drugs in question were found in the applicant's apartment. Under s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ('the DPCS Act'), the applicant was deemed to be in possession of the drugs unless she 'satisfie[d] the court to the contrary'. Her partner, Velimir Markovski, owned another apartment in the same building but mostly lived with the applicant in her apartment. In evidence given at the applicant's trial, Markovski admitted that he was involved in drug trafficking and said that the drugs were in his possession for that purpose. He denied, as did the applicant in her own evidence, that she had any knowledge of the drugs or the trafficking operation.

5 Part I of these reasons concerns - as did most of the argument at the hearing - the nature of the reverse onus imposed by s 5 of the DPCS Act. That was the subject of ground 1 of the conviction appeal. Part II deals with the other grounds of appeal and Part III with the sentence appeal. For reasons which follow, we would refuse the application for leave to appeal against conviction but allow the sentence appeal.

PART I - CONVICTION APPEAL (GROUND 1): THE REVERSE ONUS

6 Section 5 of the DPCS Act has always been understood as imposing on a defendant the legal burden of disproving possession on the balance of probabilities. The first ground of appeal challenged this conventional view, first as a matter of statutory interpretation and alternatively on the basis of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter'). Ground 1 was in these terms:

The learned judge erred in directing that, for the purposes of s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), once occupation was proved by the prosecution, the applicant would be in possession unless she proved on the balance of probabilities that she did not know of the presence of the drugs.

7 Section 71AC of the DPCS Act makes it an offence for a person to traffick in a drug of dependence. Section 70 contains an inclusive definition of the word 'traffick'. The prosecution case was that the applicant was guilty of trafficking because she had the drugs in her possession for sale (that being one of the defined meanings of 'traffick').

8 As already noted, the prosecution relied on s 5 of the DPCS Act, which gives an extended meaning of the word 'possession' for the purposes of the Act, as follows:

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.[4]

The prosecution also relied on s 73(2) of the DPCS Act, which provides:

Where a person has in his possession ... a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.

9 The combined operation of these provisions is potentially very powerful, as the present case illustrates. The finding of drugs on premises occupied by the applicant meant that she was deemed (by s 5) to be in possession of the drugs unless she satisfied the court to the contrary. When she failed to discharge that burden, her deemed possession constituted (because of the quantity involved) prima facie evidence of trafficking by force of s 73(2).

10 As Ashley JA pointed out early in the hearing, however, the effect of s 5 is not confined to the offence of trafficking. Section 5 also applies to an offence with which the applicant was not charged, that of possessing a drug of dependence, where it has an even more powerful effect. Under s 73(1) of the DPCS Act, a person who 'has or attempts to have in his possession a drug of dependence is guilty of an indictable offence ...'. Except where the offender is in possession of a small quantity of cannabis,[5] that offence carries the following penalties:

if the offender satisfies the court on the balance of probabilities that the offence was not committed for any purpose relating to trafficking - a maximum of one year's imprisonment and a fine of not more than $3,500;
in any other case - a maximum of five years' imprisonment and a fine of not more than $46,000.

11 Thus, the combined effect of s 5 and s 73(1) is that a person deemed to be in possession of a drug, having failed to satisfy the court to the contrary, is guilty of the indictable offence of possessing the drug. That is, 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. That is sufficient to establish the offence of possession under s 73(1).

12 All parties to the proceeding accepted that s 5 must be interpreted in the same way wherever it applied under the DPCS Act. That is, Parliament is to be taken to have intended that s 5 should have the same operation in relation to the offence of possession as in relation to the offence of trafficking by possession for sale. Importantly, it was not suggested by any party that s 32(1) of the Charter permitted (less still required) any differential interpretation of s 5 as between one offence provision and the other.

13 The trial judge directed the jury that, once the prosecution proved that the applicant was in occupation of the premises where the drug was found, the applicant would be in possession unless she proved on the balance of probabilities that she did not know of the presence of the drug. The applicant conceded, properly, that this direction accorded with the established authorities.[6]

14 The first submission for the applicant was that those authorities were wrong and should not be followed. It was contended that, quite apart from any argument about the effect of the Charter, s 5 should be read as imposing only an evidentiary onus on the accused, to point to or adduce evidence that he or she was not in possession. That onus having been discharged, it was said, the prosecution would have to prove beyond reasonable doubt that the accused was in possession.

15 The alternative submission was that, whatever may have been the correct interpretation before the coming into force of the Charter, s 32(1) of the Charter required s 5 to be read as imposing only an evidentiary burden.[7]

The meaning of s 5 independently of the Charter

16 We deal first with the contention that, on ordinary principles of construction, s 5 should be construed as imposing only an evidentiary, rather than a legal, burden on the accused. Given that the accepted interpretation rests on decisions of the Full Court and of this Court, we would follow those decisions unless exceptional circumstances compelled their reconsideration.[8] As will appear, there is no reason to doubt the correctness of those decisions.

17 According to the submission, if the accused adduced evidence which raised a doubt about any of the elements of possession, then he or she would have 'satisfie[d] the court to the contrary'. Further, it was said, s 5 did not expressly require the accused to prove on the balance of probabilities that he or she was not in possession. This was to be contrasted with s 73(1) and s 72C of the DPCS Act, where the legislature had provided specifically for the court to be satisfied 'on the balance of probabilities'. The absence of that phrase from s 5 was said to reinforce the argument that it did not impose a burden of proof on a person in occupation of premises, but only required that person to adduce some evidence that he or she was not in possession.

18 It was further submitted that to read s 5 as creating a legal onus was 'inconsistent with other developments in the law of drug offences'. Reliance was placed on the decision in DPP Reference No 1 of 2004; R v Nguyen,[9] where this Court held that in offences of trafficking in a commercial (or large commercial) quantity of a drug of dependence, the accused must be shown to have had an intention to traffick in an amount of the drug above the relevant threshold. In the light of that decision, so it was said:

in a case based on possession for sale, it cannot be that an accused will be convicted of trafficking in a commercial quantity (or trafficking simpliciter) if he or she fails to prove on the balance of probabilities lack of awareness that the amount exceeded the applicable threshold (or lack of awareness of the drug) when the jury has a reasonable doubt that he or she was aware that the amount exceeded the applicable threshold (or of the presence of the drug).

19 In our view, these submissions must be rejected. The question of construction is a straightforward one. The phrase 'unless the person satisfies the Court to the contrary' conveys unambiguously the legislative intention that the accused should carry the legal burden of establishing, to the Court's satisfaction, that he/she was not in possession of the relevant substance. That was the view of the Full Court in 1986 in Clarke,[10] and it was reaffirmed by this Court in Gluyas[11] and again in Tragear.[12]

[W]hat must be proved by an occupier of relevant land is that he was not in possession of the substance within the common law meaning of the word 'possession'.

Some meaning must be given to the words in s 5 'unless the person satisfies the court to the contrary'. The section clearly casts upon the prosecution the onus of proving either occupation of the relevant land or that the prohibited substance was used, enjoyed or controlled by the accused. The legislature could not have intended to enact that an accused person was called upon to disprove occupation or to prove that he did not use, enjoy or control the substance. If the latter words of the section are to be given any meaning at all it must follow that a person proved to be in occupation of relevant land is deemed to be in possession of the substance unless he proves that he was not in possession of it. That can only mean possession as it is known in common law.[13]

21 We respectfully agree with this analysis. The critical word is, of course, the word 'satisfies'.[14] It means that the defendant must 'provide [the court] with sufficient proof or information; free [the court] from doubt or uncertainty; convince [the court].'[15] In order to satisfy the court 'to the contrary', therefore, the defendant must convince the court that he/she was not in possession.

22 The absence of reference to the standard of proof is, in our view, immaterial. It has long been established that, where at common law or by statute a defendant has the burden of proving or disproving any fact, the standard of proof is the civil standard, that is, the balance of probabilities.[16]

23 According to this part of the applicant's argument, the advent of the Charter required that s 5 be interpreted differently, such that the judge had erred in basing his directions on the previously accepted interpretation. The argument involved the following steps:

1. Under s 25(1) of the Charter, '[a] person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.'

2. The imposition on an accused of a legal burden of disproof, on the balance of probabilities, of 'an issue as fundamental as possession' is not compatible with s 25(1).

3. Nor can the imposition of the legal burden be regarded as a reasonable or proportionate limit upon the presumption of innocence, within the meaning of s 7(2) of the Charter.

4. Section 32(1) of the Charter provides: '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.'

5. It is possible to interpret s 5, consistently with the purpose of the offence provisions, as placing only an evidentiary burden on the accused, and that is how s 5 must therefore be interpreted.

24 The submission for the Crown accepted that s 5 limited the presumption of innocence, but contended that the limit was reasonable and proportionate, having regard to the evil of drug trafficking. If, however, the Court were to conclude that the reverse onus was an unjustifiable limitation on the presumption, the Crown submitted that it was not 'possible' within the meaning of s 32(1) of the Charter to read down s 5 as imposing only an evidentiary burden. The Court would therefore have to make a 'declaration of inconsistent interpretation' under s 36(2) of the Charter. Because of s 36(5)(a) of the Charter, however, the validity of s 5 would not be affected by such a declaration.

25 The Attorney-General intervened in the proceeding, pursuant to s 34 of the Charter, and was represented by the Solicitor-General. The Attorney-General's submission was that:

The deeming provisions of s 5 and s 73(2), as relied upon for the offence of trafficking in a drug of dependence by sale under s 71AC, construed in accordance with their ordinary meaning, are compatible with the presumption of innocence either because they impose no limitation on that presumption or because any limitation is reasonable.

26 When attention was drawn to the significance of s 5 for the offence of possession in s 73(1), the Solicitor-General accepted that s 5 did limit the presumption of innocence in connection with that offence, while maintaining that it did not do so in connection with the trafficking offence. She then sought to demonstrate, by reference to the considerations listed in s 7(2) of the Charter, that any limit which s 5 imposed on the presumption was reasonable.[17] Alternatively, the Solicitor-General submitted, it was 'possible' under s 32(1) of the Charter, and therefore necessary, to interpret s 5 as imposing only an evidentiary burden.

27 The Victorian Equal Opportunity and Human Rights Commission ('the Commission') also intervened, in exercise of its statutory right under s 40(1) of the Charter. Its intervention was confined to the effect of s 32 of the Charter on the interpretation of s 5. The Human Rights Law Resource Centre ('the Centre') was given leave to appear as amicus curiae and to make brief oral submissions. The Centre's submissions were also confined to the question of the proper approach to the interpretive task defined by s 32(1) of the Charter. Like the Attorney-General, both the Commission and the Centre submitted that it was 'possible' under s 32(1), and hence necessary, to interpret s 5 as imposing only an evidentiary burden.

The approach to interpretation under the Charter

28 When it is contended that a statutory provision infringes a human right which the Charter recognises, the task for a court or tribunal is to decide whether there is such an infringement and, if so, whether the infringement is justifiable under the test laid down by s 7(2) of the Charter. That subsection provides as follows:

7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

29 The first step, necessarily, is one of statutory interpretation. The question of infringement can only be addressed once the meaning of the provision has been ascertained. A key issue on the appeal concerned the part to be played in the interpretive process by s 32(1) of the Charter, which provides:

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.

30 According to the submissions of both the Attorney-General and the Commission, s 32(1) has no part to play in the initial interpretive step. The meaning of the provision is to be ascertained by application of the 'ordinary principles of statutory interpretation'. The Court can then determine whether the provision unjustifiably limits a Charter right. It is only if it does so that s 32(1) 'has real work to do'. As defined by the Attorney-General and the Commission, the work which s 32(1) can then do is that of 're-interpretation ... to render the statutory provision Charter-compatible'.

31 On this view, the interpretation of a statutory provision in light of the Charter involves the following steps:

Ascertain the meaning of the relevant provision by applying ordinary principles of statutory interpretation.
Determine whether the provision thus construed limits a Charter right.
If so, decide whether that limit is a 'reasonable limit [which] can be demonstrably justified', under s 7(2) of the Charter (the 'justification question').
If (but only if) the limit on the right is unjustified, apply s 32(1) of the Charter to determine whether it is possible to reinterpret the relevant provision so that it is compatible with the relevant Charter right.[18]

32 The submission for the Centre, on the other hand, was that s 32(1) must be seen as a 'cardinal principle of statutory construction', to be brought to bear in the initial interpretive step. According to the submission:

Where a provision is said to limit a human right, it is wrong to consider, first, whether such limits can be justified under s 7(2), before considering whether it is possible to reinterpret the provision compatibly with human rights under s 32. Rather, where it is alleged that a statutory provision limits human rights, it is necessary to consider whether it is possible to interpret the provision in a way that is compatible with human rights in accordance with s 32 of the Charter; consideration of s 7 only arises in the event that it is not possible to interpret the provision compatibly with human rights under s 32.

33 These submissions raise two separate issues about the operation of the Charter. The first is whether s 32(1) was intended to create a 'special' rule of interpretation, that is, a rule which authorised (and hence required) the court, where necessary, to depart from the meaning which would be arrived at by application of 'ordinary' principles of interpretation. We explain this notion of a 'special' rule of interpretation further below.[19]

34 The second issue relates to the point in the analysis at which the question of justification under s 7(2) must be considered. According to both the Attorney-General and the Commission, this question must be decided before s 32(1) is applied. Only if the provision in question is held to limit a Charter right unjustifiably is recourse to s 32(1) necessary. According to the Centre, on the other hand, the justification question does not arise until after the Court has interpreted the provision, including by the application of s 32(1), and decided that it does limit a right.

35 For reasons which follow, we have reached the following conclusions:

(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.

(3) On the view we take of s 32(1), it is not 'possible' to interpret s 5 of the DPCS Act, consistently with its purpose, otherwise than as it has been traditionally interpreted - that is, as imposing a reverse legal onus of proof.

(4) Even if (contrary to our view) s 32(1) had been intended to create a 'special' rule of interpretation, it would still not have been 'possible' to interpret s 5 as imposing only an evidentiary onus. To do so would have been to cross the line from interpretation to legislation, which would be impermissible even on the 'special' interpretive approach commanded by s 3(1) of the Human Rights Act 1998 (UK) c 42 ('HRA').[20]

36 We return to the question of methodology below.[21] But first it is necessary to explain our conclusion regarding the interpretive obligation in s 32(1) of the Charter.

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.[22]

As will appear, the House of Lords has characterised the interpretive obligation imposed by s 3(1) of the HRA as 'very strong and far reaching'. In particular, the House has said that s 3(1) may require the interpreting court to depart from the legislative intention of the Parliament which enacted the provision(s) under scrutiny. In this sense, so it has been held, s 3(1) established a 'special' or extraordinary rule of interpretation. 'It allows the courts to amend legislation and change the choices made by Parliament about how an area of the law will be regulated.'[23]

38 This view of s 3(1) was captured in an early HRA decision of the Court of Appeal (Lord Woolf CJ) in Poplar Housing and Regeneration Community Association Ltd v Donoghue,[24] as follows:

It is difficult to overestimate the importance of section 3. It applies to legislation passed both before and after the Human Rights Act 1998 came into force. Subject to the section not requiring the court to go beyond that which is possible, it is mandatory in its terms. In the case of legislation predating the Human Rights Act 1998 where the legislation would otherwise conflict with the Convention, section 3 requires the court to now interpret legislation in a manner which it would not have done before t_he_ Human Rights Act 1998 came into force. When the court interprets legislation usually its primary task is to identify the intention of Parliament. Now, when section 3 applies, the courts have to adjust their traditional role in relation to interpretation so as to give effect to the direction contained in section 3. It is as though legislation which predates the Human Rights Act 1998 and conflicts with the Convention has to be treated as being subsequently amended to incorporate the language of section 3.[25]

39 On this appeal, the submissions of all parties other than the Crown proceeded on the assumption that s 32(1) likewise established a 'special rule' of interpretation. The applicant, the Attorney-General, the Commission and the Centre all contended that, even if on ordinary principles of interpretation the language of s 5 of the DPCS Act could not be read otherwise than as expressing a legislative intention to impose a legal burden on an accused person, it was nevertheless 'possible' within the meaning of s 32(1) - and hence obligatory - to interpret s 5 as imposing only an evidentiary burden.

40 Both the Commission and the Centre submitted that the concluding phrase of s 5 could - and hence must - be read as if it provided: '... unless the person satisfies the court that there is some evidence to the contrary.' They acknowledged that this would be a 'reinterpretation' of s 5, but submitted that it would not go beyond what was permitted by s 32(1).

41 Plainly enough, to read s 5 in this way would involve a significant departure from the intent of Parliament as expressed in the words of s 5. Instead of the accused having to satisfy the court 'to the contrary' of the deemed possession - by proving on the balance of probabilities that he/she was not in possession - the section as reinterpreted would require only that the accused person satisfy the court that there was evidence showing that he/she was not in possession.

42 The submission for the Attorney-General was that the Court need not attempt to reformulate the language of s 5.[26] It would be sufficient for the court to hold that the phrase 'satisfies the court to the contrary' should be read as imposing only an evidentiary burden on the accused. The rules of the common law would then operate to determine in a particular case whether the accused had discharged that burden.

43 The submissions made respectively on behalf of the Attorney-General, the Commission and the Centre cited a number of English cases dealing with s 3(1) HRA. The Attorney-General's contention that s 32(1) permitted 'reinterpretation' drew explicitly on the jurisprudence of the House of Lords regarding s 3(1), as analysed by Beatson et al in Human Rights: Judicial Protection in the United Kingdom.[27] As will appear, particular reliance was placed on the approach of the House of Lords in Ghaidan.[28] The submissions also referred to cases applying the interpretive provisions in the New Zealand Bill of Rights Act 1990 (NZ) (s 6)[29] and in the Constitution of the Republic of South Africa, 1996 (s 39(2)) and the remedial interpretive provisions implied into the Hong Kong Basic Law.[30]

44 We begin with the decision of the House of Lords in Ghaidan,[31] which both the Attorney-General and the Commission submitted should be viewed as defining the correct approach to s 32(1). That case concerned a legislative provision giving a person living with a tenant 'as his or her wife or husband' the right to remain in rent-controlled premises after the death of the tenant. By majority, the House held that the provision extended to the same sex partner of a tenant.

45 The Commission contended that s 32(1) was enacted 'with full knowledge of, and with an apparent intention to replicate, the approach taken by the House of Lords in Ghaidan.' As discussed further below, the decision in Ghaidan[32] was relied on by the Human Rights Consultation Committee in the relevant part of its report to the Victorian Government, recommending the inclusion of an interpretive provision in the proposed charter of rights.[33]

46 In Ghaidan,[34] Lord Nicholls of Birkenhead (with whom Lord Steyn, Lord Rodger of Earlsferry and Baroness Hale of Richmond agreed) said:

Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, s 3 may none the less require the legislation to be given a different meaning. The decision of your Lordships' House in R v A (No 2)[35] is an instance of this. The House read words into [a provision] so as to make that section compliant with an accused's right to a fair trial ... . The House did so even though the statutory language was not ambiguous.

From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3.[36]

47 Lord Millett dissented in the result but expressed substantially similar views about the operation of s 3(1):

it obliges the court to give an abnormal construction to the statutory language and one which cannot be achieved by resort to standard principles and presumptions.

This is a difficult exercise, for it is one which the Courts have not hitherto been accustomed to perform, and where they must accordingly establish their own ground rules for the first time.

...

It must, therefore, be possible, by a process of interpretation alone, to read the offending statute in a way which is compatible with the Convention.

This does not mean that it is necessary to identify an ambiguity or absurdity in the statute (in the sense of being open to more than one interpretation) before giving it an abnormal meaning in order to bring it into conformity with a Convention right. I respectfully agree with my noble and learned friend, Lord Nicholls of Birkenhead, that even if, construed in accordance with ordinary principles of construction, the meaning of the legislation admits of no doubt, section 3 may require it to be given a different meaning. It means only that the court must take the language of the statute as it finds it and give it a meaning which, however unnatural or unreasonable, is intellectually defensible. It can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of the legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point.[37]

48 Subsequently, in Sheldrake v Director of Public Prosecutions; Attorney-General's Reference (No 4 of 2002),[38] the House concluded that it was 'possible' to read a provision imposing a legal burden of proof on a defendant as imposing only an evidential burden. Lord Bingham of Cornhill said:

Such was not the intention of Parliament when enacting the [relevant provision], but it was the intention of Parliament when enacting section 3 of [HRA].[39]

49 Lord Bingham said that the majority opinions in Ghaidan[40] left 'no room for doubt' on the following four points:

1. The interpretive obligation under s 3(1) was 'a very strong and far reaching one and [might] require the court to depart from the legislative intention of Parliament'.

2. A Convention-compliant interpretation under s 3(1) was 'the primary remedial measure', and a declaration of incompatibility was 'an exceptional course'.

3. During the passage of HRA through Parliament, the 'promoters of the legislation' told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise.

4. Nevertheless, there was a limit beyond which a Convention-compliant interpretation was not possible.[41]

50 On the last point, Lord Bingham gave the example of R (Anderson) v Secretary of State for the Home Department,[42] where the House had rejected what was said to be a 'possible' Convention-compatible interpretation. In that case, Lord Bingham himself had said that to read the provision as proposed

would not be judicial interpretation but judicial vandalism: it would give the section an effect quite different from that which Parliament intended and would go well beyond any interpretive process sanctioned by section 3 ...[43]

Lord Steyn said that it was 'impossible' to follow the proposed course because it

would not be interpretation but interpolation inconsistent with the plain legislative intent ... . Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute.[44]

51 Earlier, in Re S,[45] after noting the 'forthright, uncompromising language' of s 3(1), Lord Nicholls had emphasised the difference between interpreting and legislating:

The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes, are matters for Parliament.

Up to this point there is no difficulty. The area of real difficulty lies in identifying the limits of interpretation in a particular case. This is not a novel problem. If anything, the problem is more acute today than in past times. Nowadays courts are more 'liberal' in the interpretation of all manner of documents. The greater the latitude in which courts construe documents, the less readily defined is the boundary. ... For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment.[46]

52 In Sheldrake,[47] Lord Bingham noted that the members of the House in Ghaidan[48] had used a variety of expressions in endeavouring to define the limits on interpretation under s 3(1). Their Lordships had variously said that a Convention-compatible interpretation might not be 'possible' if the interpretation:

• would be incompatible with 'the underlying thrust of the legislation';[49]

• would not 'go with the grain' of the legislation;[50]

• would contradict 'the essential principles' of the legislation or go beyond its scope;[51]

• involved a choice which was properly a matter for legislative deliberation;[52]

• would be 'inconsistent with a fundamental feature' of the legislation;[53]

• would 'repeal, delete, or contradict the language of the offending statute';[54]

• would change the substance of the provision completely;[55]

• would remove the 'pith and substance' of the provision;[56] or

• would violate a 'cardinal principle' of the legislation.[57]

53 Lord Bingham commented in Sheldrake[58] that such expressions 'yield valuable insights, but none of them should be allowed to supplant the simple test enacted in the Act: "So far as it is possible to do so ...".'[59] With respect this is plainly correct, but the very multiplicity of different formulations advanced by their Lordships highlights the inherent difficulty of defining what is and what is not 'possible' once ordinary principles of statutory interpretation are discarded. Not surprisingly, English commentators have characterised the decision in Ghaidan[60] as allowing for 'a wide linguistic freedom in the use of s 3(1)' and as giving the judiciary 'a wide discretion over the implied restrictions on the use of s 3(1) '.[61]

54 Before leaving this consideration of the English authorities, we should refer (as did Tipping J in the Supreme Court of New Zealand in R v Hansen)[62] to the subsequent decision of the House of Lords in R (on the application of Wilkinson) v Inland Revenue Commissioners,[63] which was not cited on this appeal. In that case, the question was whether it was 'possible' in the s 3(1) sense to read the gender-specific word 'widow' as referring to 'the more general concept of a surviving spouse'. The Interpretation Act 1978 (UK) c 30 provided for words importing the feminine gender to include the masculine 'unless the contrary intention appears'. The House considered that the particular statutory context disclosed a clear contrary intention and hence that s 3(1) HRA did not permit the word 'widow' to be read as meaning 'widower'.

55 Lord Hoffman (with whom Lord Nicholls, Lord Hope, Lord Scott and Lord Brown agreed) said:

I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the 'principle of legality' meant that statutes were construed against the background of human rights subsisting at common law ... so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to 'resolve ambiguities' in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But with the addition of the Convention as background, the question is still one of interpretation [emphasis in original] ie, the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute.[64]

56 The approach here described is very different from that epitomised by Ghaidan[65] and Sheldrake.[66] First, the task under s 3(1) HRA is described as being 'the ascertainment of what, taking into account the presumption created by s 3, Parliament would reasonably be understood to have meant by using the words in question'. This may be contrasted with Lord Steyn's statement in Ghaidan[67] that the UK Parliament had specifically rejected a legislative model 'requiring a reasonable interpretation'. Secondly, the parallel explicitly drawn here between s 3(1) HRA and the common law interpretive presumption against interference with rights (the so-called 'principle of legality'[68]) is much closer to the view we have arrived at regarding s 32(1)[69] than anything said in Ghaidan[70] or Sheldrake.[71]

57 We respectfully agree with the following comment by Tipping J in Hansen:[72]

[I]n Wilkinson the balance may have swung back a little from the stance taken in Ghaidan, towards greater emphasis being placed on the need for s 3 to be viewed as mandating a process which ultimately remains one of permissible interpretation.[73]

Whether the decision in Wilkinson[74] is indeed to be regarded as 'an implicit repudiation' of the Ghaidan[75] approach, as one New Zealand commentator has suggested,[76] remains to be seen. Our researches have revealed no subsequent consideration by the English courts of the apparent change of approach in Wilkinson.[77]

58 The submission for the Attorney-General also relied on what was said by Sir Anthony Mason NPJ, sitting as a member of the Hong Kong Court of Final Appeal in HKSAR v Lam Kwong Wai.[78] That case also concerned a provision which imposed a reverse onus on a defendant to a criminal charge. Sir Anthony Mason NPJ (with whom the four other members of the Court agreed) held that, on ordinary principles of interpretation, the provision in question imposed a legal onus, not an evidentiary one. That was the meaning which accorded with 'the legislative intention properly ascertained'.[79] Thus interpreted, the Court said, the provision interfered with the presumption of innocence to an extent which was disproportionate to the legislative object.[80]

59 On this interpretation, the provision was constitutionally invalid and of no effect. In those circumstances, Sir Anthony Mason NPJ concluded, the Basic Law of Hong Kong impliedly conferred power on the Court to make 'a remedial interpretation' which went beyond ordinary common law interpretation.[81] His Honour cited R v A (No 2),[82] Ghaidan[83] and Sheldrake[84] as 'strong English authority' supporting the view that

remedial interpretation mandates an approach to statutory construction which differs from, and is more radical than, that permitted by accepted principles of common law statutory interpretation.[85]

60 What made this 'radical' approach to interpretation necessary in the case at hand was the importance of avoiding invalidity, as his Honour made clear:

Courts have traditionally, and for very good reason, been reluctant to engage in what may be seen as legislative activity. That is why, in earlier times the courts stopped short of engaging in remedial interpretation which involves the making of a strained interpretation. The justification for now engaging in remedial interpretation is that it enables the courts, in appropriate cases, to uphold the validity of legislation, albeit in an altered form, rather than strike it down. To this extent, the courts interfere less with the exercise of legislative power than they would if they could not engage in remedial interpretation. In that event, they would have no option but to declare the legislation unconstitutional and invalid. Indeed, it can be safely assumed that the legislature intends its legislative provision to have a valid, even if reduced, operation than to have no operation at all, so long as the valid operation is not fundamentally or essentially different from what it enacted.[86]

Adopting this 'remedial' approach, his Honour concluded that the provision 'should be read and given effect as imposing on the defendant an evidential burden only'.[87] His Honour noted that the same course had been taken in Lambert[88] and in Sheldrake.[89]

61 In RJE v Secretary to the Department of Justice,[90] Nettle JA said that 'as at present advised' he would adopt the UK/Hong Kong approach in applying s 32(1). (In the event the interpretation which his Honour arrived at by applying s 32(1) was within the scope of ordinary principles of interpretation.)[91] Warren CJ expressed the same view in DAS v Victorian Human Rights & Equal Opportunity Commission.[92] As will appear, we have come to a different conclusion. The most important difference between the position in Hong Kong and that which applies under the Charter is that a finding of inconsistency between a statutory provision and a Charter right has no effect on the validity of the provision.[93]

62 Section 6 of the New Zealand Bill of Rights Act 1990 (NZ) provides as follows:

6 Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

63 Early in the life of the Act, Cooke P said that the 'preference' which s 6 commanded would:

come into play only when the enactment can be given a meaning consistent with the rights and freedoms. This must mean, I think, can reasonably be given such a meaning. A strained interpretation would not be enough. [94]

64 In 1997, in Quilter v Attorney-General[95] Tipping J (with whom Richardson P, Gault and Keith JJ agreed) said that for the purposes of s 6 a statutory provision could only be given a meaning consistent with a relevant right if the meaning was available 'by a legitimate process of construction'.[96] In 2007, in Hansen,[97] Tipping J endorsed academic commentary to the effect that s 6 'has been read on the basis that an alternative meaning must be reasonably or properly open. It must be fairly open and tenable'.[98]

65 In his Honour's view, s 6 'cannot be used to give a meaning to an enactment which is clearly contrary to the meaning which Parliament understood its words to convey.'[99] Rather, an approach

which inquires whether a suggested meaning is reasonably possible, seems to me to come as close as possible to capturing the way in which the statutory 'can' in s 6 must be applied. It is by this measure of reasonable possibility that I would distinguish at least some English discussions on the subject: they seem to adopt a meaning which is _un_reasonably possible from an interpretative point of view. I say that because alternative meanings have been found in England, under the aegis of s 3, despite an acknowledgment that this defeats Parliament's purpose. In England s 3 appears at times to have been construed as mandating a judicial override of Parliament, if Parliament's meaning is inconsistent with a right or freedom. That, for me, would be to use s 3 (the New Zealand s 6) as a concealed legislative tool. Whether it is appropriate in England is not for me to say, but I am satisfied it is not appropriate in New Zealand.[100]

66 Elias CJ said in Hansen[101] that, for a meaning to be available under s 6, it must be 'tenable on the text and in the light of the purpose of the enactment.'[102] To similar effect, McGrath J described s 6 as being applicable 'whenever the Court can identify a tenable meaning of an enactment'.[103] But the Court may not 'go beyond the reasonably available meaning of [a] word in its legal context'.[104]

67 As Claudia Geiringer has pointed out in her illuminating analysis of Hansen,[105] McGrath J drew a parallel between the interpretive obligation under s 6 and the common law 'principle of legality'. He said:

Section 6 should ... be seen as requiring that judges apply the presumption that legislation is to be interpreted in accordance with fundamental rights, as part of the statutory reassertion of the importance of New Zealand's commitment to human rights in the interpretation exercise, which requires an approach to interpretation which is sympathetic to protected rights.

To qualify as a meaning that can be given under s 6 what emerges must always be viable, in the sense of being a reasonably available meaning on that orthodox approach to interpretation. When a reasonably available meaning consistent with protected rights and freedoms emerges the Court must prefer it to any inconsistent meaning.[106]

68 As Ms Geiringer notes, Elias CJ had drawn the same parallel in earlier decisions under the Bill of Rights Act 1990 (NZ). Thus, in Ngati Apa Ki Te Waipounamu Trust v The Queen,[107] her Honour referred to specific rights contained in the Act and said:

Such basic rights cannot be overridden by general or ambiguous words in a statute ... This principle of legality, recognised by the common law, has been expressly enacted by s 6 of the New Zealand Bill of Rights Act 1990.[108]

Similarly, in R v Pora,[109] the Chief Justice had said:

By s 6 the New Zealand Parliament has adopted a general principle of legality ... . Such principle was applied as a principle of the common law before the United Kingdom Human Rights Act 1998 ...[110]

Was s 32(1) intended to replicate s 3(1) HRA?

69 For reasons which follow, we have concluded that the Victorian Parliament did not intend s 32(1) to be a 'special' rule of interpretation in the Ghaidan[111] sense. The submission that s 32(1) was intended to replicate s 3(1) HRA, and to be applied in the same way, cannot be sustained.

70 It is convenient to begin with the decision in Kracke,[112] on which both the Attorney-General and the Commission relied. In that case Bell J[113] concluded that s 32(1) of the Charter and s 3(1) HRA 'express the same special interpretative obligation and are of equal force and effect.'[114] Bell J expressed the view that the insertion into s 32(1) of the phrase 'consistently with their purpose':

was intended to put into s 32(1) the approach to s 3(1) adopted by the House of Lords in Ghaidan v Godin-Mendoza (which had been decided before the Charter was enacted).[115]

The boundaries identified in Ghaidan v Godin-Mendoza, on which the purpose requirement [in s 32(1)] is based, provide an adequate balance between giving the special interpretive obligation full force and proper scope on the one hand and safeguarding against its impermissible use on the other. Adopting narrower boundaries would weaken the operation of s 32(1) in a way that was not intended.[116]

71 His Honour also invoked Ghaidan[117] and Sheldrake[118] in holding that:

The special interpretive obligation in s 32(1) is like its English parent - 'very strong and far reaching', and may even require 'the court to depart from the legislative intention of Parliament'.

Because the obligation is to make legislation conform to transcendent human rights principles wherever possible, the role of the courts is fundamentally different to their role under the standard principles of interpretation. However, that role is still interpretation, not amendment. In consequence, there is a 'limit beyond which a [human rights compliant] interpretation is not possible ...'[119]

72 Bell J referred[120] to the report of the Human Rights Consultation Committee, which recommended that the interpretive provision in the proposed Charter should read as follows:

So far as it is possible to do so, consistently with its purpose, a Victorian law must be read and given effect to in a way that is compatible with human rights.[121]

73 The Committee's draft adopted the language of s 3(1) HRA but inserted the additional requirement of consistency with purpose. The Committee said of its draft:

By making this [ie the requirement of consistency with purpose] plain, the courts would be provided with clear guidance to interpret legislation to give effect to a right so long as that interpretation is not so strained as to disturb the purpose of the legislation in question. This is consistent with some of the more recent cases in the United Kingdom, where a more purposive approach to interpretation was favoured. In the United Kingdom House of Lords decision in Ghaidan v Godin-Mendoza, Lord Nicholls of Birkenhead said

'the meaning imported by application of s 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must ... "go with the grain of the legislation".'

Or as Lord Rodger of Earlsferry stated:

'It does not allow the Courts to change the substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying that x is not to happen.'[122]

74 With great respect to Bell J, we do not agree that the insertion into s 32(1) of the words 'consistently with their purpose' was intended to 'put into s 32(1) the approach to s 3(1) adopted by the House of Lords in Ghaidan'. In our view, the insertion of those words of limitation stamped s 32(1) with a quite different character from that of s 3(1) HRA, which was said in Ghaidan[123] to require the court where necessary to 'depart from the intention of the Parliament which enacted the legislation'.[124] In our opinion the inclusion of the purpose requirement made it unambiguously clear that nothing in s 32(1) justified, let alone required, an interpretation of a statutory provision which overrode the intention of the enacting Parliament.[125] (The Court of Appeal of the Australian Capital Territory reached a similar conclusion in relation to the similarly-worded s 30 of the Human Rights Act 2004 (ACT)).[126]

75 Under s 32(1), statutory provisions must be interpreted consistently with human rights 'so far as it is possible to do so consistently with their purpose'. The test is one of consistency with the purpose of the provision(s) in question. This focus on the purpose of the provision being interpreted may be contrasted with an approach which concerned itself with the purpose of the legislation as a whole, as embodied, for example, in s 35 of the Interpretation of Legislation Act 1984 (Vic):

In the interpretation of a provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act ... shall be preferred to a construction that would not promote that purpose or object.[127]

76 But s 32(1) was not drafted in those terms. It requires that interpretation under the Charter accord with the purpose of the provision(s) being interpreted. In the circumstances, this must be taken to have been a deliberate choice of language, though in the present case it makes no difference to the ultimate conclusion.[128]

77 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. It seems improbable that Parliament would have used the word 'interpret' in s 32(1) if it had intended to require courts to do something quite different. As Kentridge JA commented trenchantly in State v Zuma,[129] 'If the language used by the lawgiver is ignored in favour of a general resort to "values" the result is not interpretation, but divination.'

78 Our view of the effect of s 32(1) is reinforced by what was said in Parliament when the Charter bill was debated. We now turn to those debates.

79 The intention of Parliament is, of course, to be discerned from the statute itself, not from the views expressed by members of Parliament during the debate which preceded enactment. As Dawson J said in Mills v Meeking:[130]

Individual members of Parliament, or even the government, do not necessarily mean the same thing by voting on a Bill or, in some cases, anything at all. The collective will of the legislature must therefore be taken to have been expressed in the language of the enactment itself, even though that language has been selected by the draftsman, who is not a member of Parliament.[131]

80 Nevertheless, it is now established - both at common law[132] and by statute[133] - that resort may be had to Parliamentary debates for such assistance as they may properly provide. As already noted,[134] the House of Lords in Ghaidan[135] attributed significance to what had been said in the British Parliament about s 3(1) HRA.[136] In the present case, the Parliamentary debates emphatically confirm what the words of s 32(1) convey about 'the collective will of the legislature'.

81 The Attorney-General's Second Reading Speech said of the clause which became s 32(1):

Clause 32 of the bill recognises the traditional role for the courts in interpreting legislation passed by Parliament. While this bill will not allow courts to invalidate or strike down legislation, it does provide for courts to interpret statutory provisions in a way which is compatible with the human rights contained in the Charter, so far as it is possible to do so consistently with their purpose and meaning. It allows for international law and international judgments to be considered in interpreting a statutory provision.[137]

82 What is most striking about this passage is the absence of any suggestion that s 32(1) would establish a new paradigm of interpretation, under which courts would be required (where necessary to secure human rights compatibility) to depart from the ordinary meaning of a statutory provision and hence from the intention of the Parliament which enacted that provision. What the Minister said was to precisely the opposite effect. He described s 32(1) as a provision which 'recognises the traditional role for the courts in interpreting legislation'.

83 Had it been the Government's intention that Victorian courts be given a role under the Charter which was 'fundamentally different [from] their role under the standard principles of interpretation',[138] the Minister would have been obliged to say so. He would have needed to point out that what was proposed in s 32(1) was a departure from 'the traditional role [of] the courts in interpreting legislation passed by Parliament'.[139] Having made that clear, the Minister would have had to be specific about the nature and extent of the departure, presumably by drawing on examples from the UK jurisprudence.

84 It is also notable that the Minister spoke of s 32(1) as requiring provisions to be interpreted compatibly with Charter rights 'so far as it is possible to do so consistently with their purpose and meaning'. Although the words 'and meaning' do not appear in s 32(1) itself, the fact that the Minister used them in his Second Reading Speech makes it even clearer that Parliament had no intention of authorising (or requiring) interpretations which would depart from the meaning of a provision arrived at by ordinary principles of interpretation. The Parliament thus enacted s 32(1) after having been told, quite explicitly, by the responsible Minister that, in performing their interpretive function under the Charter, the courts would be constrained both by the purpose of the provision being interpreted and by the meaning of the words in the provision. (In the light of these clear statements to the 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)).

85 Nor did the Explanatory Memorandum for the Charter bill suggest that 'abnormal' interpretations[140] were in contemplation. After restating the terms of clause 32(1), the Memorandum stated:

The object of this sub clause is to ensure that courts and tribunals interpret legislation to give effect to human rights. The reference to statutory purpose is to ensure that in doing so courts do not strain the interpretation of legislation so as to displace Parliament's intended purpose or to interpret legislation in a manner which avoids achieving the object of the legislation.[141]

By contrast, not only does s 3(1) HRA permit a 'strained interpretation'[142] but it has been held to go much further, requiring the court where necessary to depart entirely from the plain meaning of the provision in question.

86 It is hardly surprising that the Attorney-General should have emphasised the traditional nature of the interpretive function conferred on the courts by s 32(1). As the debate on the Charter bill in the Victorian Parliament demonstrated very clearly, the Government was at pains to dispel concerns that the enactment of the Charter would involve an unacceptable transfer of power to the judiciary. Such concerns have for a number of years featured prominently in public discourse in Australia about the desirability (or otherwise) of legislative protection of human rights.[143] The Victorian Human Rights Consultation Committee had reported to the government that submissions received by the Committee argued that 'enacting a Charter would take power away from the Parliament and give unelected judges too much power.'[144]

87 Thus, in his response to the Minister's Second Reading Speech, the shadow Attorney-General quoted with approval (as did a former Opposition Leader later in the debate)[145] the following statement made in January 2001 by Mr Bob Carr, then Labor Premier of New South Wales:

A bill of rights would pose a fundamental shift in (our political) tradition, with Parliament abdicating its important policy-making functions to the judiciary.

If we pass this Charter of human rights, we will shift the power to the judiciary - unelected officials - to involve itself in all sorts of political issues.

...

But the most profound thing that concerns me is that we are introducing something that is effectively fundamental law in this State. Every single Act of Parliament - past, present and future - is going to have to be interpreted in light of human rights. Those sorts of matters can be involved. A prisoner has a common law right at the moment to have a trial set aside on the basis of delay. Now you have this other provision [of the Charter] that says you can do so if you have an unreasonable delay. ... We will be devolving those political questions to the judiciary, with dire consequences.[146]

88 The first speaker in support of the Bill was the Chair of the Parliamentary Committee on the Scrutiny of Acts and Regulations. Like the Attorney-General, she sought to emphasise the limits on the powers which the Charter would confer on the courts:

Clearly the nature of the Bill is educative, and it preserves the sovereignty of our elected Parliament, contrary to many misconceptions that have been bandied around this House today. The Supreme Court will not be able to invalidate a Victorian law when a statutory provision is deemed by it to be inconsistent with the Charter, although the Supreme Court will be able to make a declaration of inconsistent interpretation if it finds that a statutory provision cannot be interpreted consistently with a human right.[147]

We will ... be supporting a model which is similar in operation to the New Zealand Bill of Rights Act and the United Kingdom Human Rights Act in that the Courts in both of those countries cannot invalidate primary legislation. The main function of the human rights legislation is to alert the Government and the Parliament to human rights inconsistencies.[148]

89 Another Minister, speaking in support of the Charter, said:

A principal feature of the Bill is that it accords with a Parliamentary-based model of human rights protection. We understand that Parliament remains the final and sovereign institution in our democracy, and this Bill does nothing - I repeat, nothing - to undermine that.[149]

According to yet another Government member, the Charter legislation:

... finds the right balance, because it sets out the rights and responsibilities of Victorians but sets them out in a way that maintains Parliamentary sovereignty and allows the Courts in appropriate circumstances to make declarations about whether legislation meets the standards of human rights but does not allow the Courts to invalidate those laws. It still requires the Parliament to address that question to determine whether or not it wishes to amend those laws or to make a statement about why in a particular circumstance those Parliamentary laws should in some way or another not meet a particular human rights standard.

Doing it in the way that we have with this legislation ... will mean that the Parliament remains the sovereign body and the Courts have the appropriate advisory role.[150]

90 For the Opposition, the shadow Treasurer described the Bill as 'dangerous', arguing that the proposed Charter would

... transfer legislative power from the Parliament to the judiciary. It will throw a new wild card into the interpretation of every statute on our books. It will force legislation to be interpreted against this collection of untried and untested verbiage and will therefore diminish the strength of our common law background, which has evolved over many centuries and strikes the sorts of balances and nuances that this legislation fails to do.

It is also going to transfer de facto legislative power from the Parliament to the judiciary by granting an enormous scope for judicial discretion in interpretation, and therefore it will transfer what should be political and community issues debated in the public arena and decided by Parliament into the hands of the judiciary.[151]

91 What was said in the Victorian Parliament about s 32(1) and the role of the courts is in marked contrast to what was said in the UK Parliament about s 3(1) HRA.[152] In Ghaidan,[153] Lord Steyn said:

Parliament had before it the mischief and objective sought to be addressed, viz the need 'to bring rights home'. The linch-pin of the legislative scheme to achieve this purpose was section 3(1). Rights could only be effectively brought home if section 3(1) was the prime remedial measure, and section 4 a measure of last resort. How the system modelled on the EEC interpretative obligation would work was graphically illustrated for Parliament during the progress of the Bill through both Houses. The Lord Chancellor observed that 'in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility' and the Home Secretary said 'We expect that, in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention.' ... . It was envisaged that the duty of the court would be to strive to find (if possible) a meaning which would best accord with Convention rights. This is the remedial scheme which Parliament adopted.

92 Unlike the United Kingdom Parliament, the Victorian legislature was not impelled by the objective of 'bringing home' rights already enforceable under an international convention. Nor was there any suggestion in the Victorian Parliament that the interpretive function of the courts under s 32(1) would be 'the prime remedial measure'. On the contrary, as we have seen, the debate focused almost exclusively on the function of the court in identifying legislative inconsistency with human rights and then making a declaration which - it was repeatedly emphasised - would not affect the validity of the legislation. Far from the making of a declaration of inconsistency being seen as a 'last resort', that procedure was treated in the debates as epitomising the intended relationship between the courts and the legislature.[154]

93 This is not surprising, in our view, given that the Charter is said to exemplify the 'dialogue model' of human rights legislation.[155] In his Second Reading Speech, the Attorney-General said that the Bill was based

on human rights laws that now operate successfully in the Australian Capital Territory, the United Kingdom and New Zealand. Importantly, it is nothing like the United States Bill of Rights. This Bill promotes a dialogue between the three arms of the government - the Parliament, the executive and the courts - while giving Parliament the final say. Unlike the United States, courts will not have the power to strike down legislation.[156]

The Consultation Committee's report had drawn exactly the same distinction.[157]

94 In our view, 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.[158] We do not overlook the fact that Parliament can already legislate to override a judicial interpretation viewed as unsatisfactory.[159] But that is not what is meant when the concept of a 'dialogue' between courts and Parliament is described as the distinguishing feature of this legislative model of human rights protection.[160]

95 Rather, it is the making of a declaration of inconsistent interpretation which is seen as the defining feature of the so-called 'dialogue model'. That was certainly the view of the ACT Bill of Rights Consultative Committee, as expressed in its 2003 report:

The Consultative Committee was impressed by the concept of creating a dialogue, or, more prosaically, 'institutional interaction' on human rights issues between the three arms of government and the community. However, the dialogue proposed is not an open-ended one and, after debate, the legislature is assigned the 'last say' in relation to human rights issues. To create a dialogue, the judiciary should not be able to invalidate legislation but rather be able to give its opinion that a law is incompatible with the Human Rights Act. It should then be a matter for the legislature to determine whether or not to amend the legislation so that it conforms to the Human Rights Act. The model proposed allows the judiciary to invalidate acts of the executive, including subordinate legislation, but preserves the ability of the legislature to reinstate such acts by passing authorising legislation.[161]

96 The Victorian Human Rights Consultation Committee evidently concurred, referring with approval to the ACT model (by then in force as the Human Rights Act 2004 (ACT)) and describing such declarations as

a channel through which the dialogue between the courts and the Parliament takes place. ... [T]hey are significant both as a trigger for Parliamentary re-consideration and as a means of holding the executive to account..[162]

Certainty of interpretation and representative democracy

97 Other considerations reinforce the conclusion we have arrived at. First, the interpretive obligation imposed by s 32(1), although directly applicable only to courts and tribunals, affects all who must now interpret Victorian legislation in light of the Charter.[163] Certainty of interpretation is vitally important. The expansive power which s 3(1) HRA has been held to confer would seem to create real problems of uncertainty for anyone called upon to interpret a provision of a UK statute which arguably infringed a human right. In view of the approach of the House of Lords, that person might reasonably ask 'If the words do not mean what they say, what do they mean?'[164]

98 As French CJ said in International Finance Trust Co Limited v New South Wales Crime Commission:[165]

[T]hose who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished.[166]

We would also respectfully adopt what his Honour said in NAAV v Minister for Immigration (when a member of the Federal Court), as follows:

In a representative democracy those who are subject to the law, those who invoke it and those who apply it are entitled to expect that it means what it says. That proposition informs the approach of courts to the interpretation of laws in taking as their starting point the ordinary and grammatical sense of the words.[167]

99 Secondly, as the last passage suggests, a departure of the Ghaidan kind from the 'ordinary' rules of interpretation would represent a major change in the rules by which our representative democracy functions. The High Court referred to NAAV when it said recently in Zheng v Cai[168] that

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