Andrews v Thomson
[2018] ACTCA 53
•28 November 2018
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Andrews v Thomson |
Citation: | [2018] ACTCA 53 |
Hearing Date: | 14 November 2018 |
DecisionDate: | 28 November 2018 |
Before: | Elkaim, Loukas-Karlsson JJ and Robinson AJ |
Decision: | See [62] |
Catchwords: | APPEAL AND NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS - Appeal against primary judgment – appeal against dismissal of charge – whether power to arrest for breach of bail permits entry of premises without warrant to effect arrest – interpretation of legislation – compatibility with human rights legislation |
Legislation Cited: | Bail Act 1992 (ACT) ss 53 and 56A Bail Amendment Act2004 (ACT) |
Cases Cited: | Andrews v Thomson [2018] ACTSC 199 Catlow v Accident Compensation Commission (1989) 167 CLR 543 |
Texts Cited: | Commonwealth, Parliamentary Debates, House of Representatives, 2 February 1994, 115-116 (Duncan Kerr) Explanatory Memorandum, Crimes (Amendment) Bill (No 3) 1994 (ACT) |
Parties: | Brett Andrews (Appellant) Valentina Thomson (Respondent) ACT Human Rights Commissioner (Intervener) ACT Attorney-General (Intervener) |
Representation: | Counsel Mr J White SC (Appellant) Dr A Hopkins (Respondent) Ms K Musgrove (Intervener - ACT Human Rights Commissioner) Mr N Hancock (Intervener - ACT Attorney-General) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) Sharman Robertson Solicitors (Intervener - ACT Human Rights Commissioner) ACT Government Solicitor (Intervener - ACT Attorney-General) | |
File Number: | ACTCA 40 of 2018 |
Decision under appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 30 July 2018 Case Title: Andrews v Thomson Citation: [2018] ACTSC 199 |
THE COURT:
This is an appeal from a decision of Mossop J delivered on 30 July 2018. His Honour’s decision was itself the determination of an appeal from a decision of Magistrate Fryar made on 8 December 2017.
The Magistrate dismissed a charge against the respondent which alleged that the respondent had resisted a public official (a police officer) in the exercise of his duty contrary to s 361 of the Criminal Code 2002 (ACT).
The informant appealed. The appeal was heard by Mossop J on 11 May 2018. His Honour dismissed the appeal (Andrews v Thomson [2018] ACTSC 199).
The appeal to this Court has also been brought by the informant. He is unhappy about Mossop J’s interpretation of s 56A of the Bail Act 1992 (ACT).
On 30 October 2018, orders were made permitting the Human Rights Commissioner (the HRC) to participate in the proceedings as an amicus curiae and to file submissions in support of the HRC’s position. The appellant later withdrew its consent to these orders and submitted that the HRC could only participate in the appeal as an intervener with limitations placed on the scope of its intervention. After some discussion orders were made revoking the earlier orders and allowing the HRC to intervene. The intervention was limited to the relevance of the Human Rights Act 2004 (ACT) (the HRA) to the construction of s 56A of the Bail Act 1992 (ACT) (the Bail Act).
The Attorney-General also intervened, pursuant to s 35 of the HRA, but relied only on written submissions.
The background is that on 26 March 2017, police officers attended the respondent’s home to arrest her because they believed, on reasonable grounds, that she had breached a condition of the bail order she was then under. The condition related to the use of illicit drugs.
The officers initially spoke to the respondent outside the front door of her home. She was told that she was under arrest for breach of her bail. She retreated into her home. She was followed by the police officers. They physically restrained her in order to effect the arrest. The respondent resisted, leading to the charge under s 361 of the Criminal Code 2002 (ACT).
The appeal to Mossop J, and to this Court, rested on the agreed fact that the arrest of the respondent took place inside her residence.
10. The issue before the Magistrate was whether or not the police officers were entitled to enter the premises to effect the arrest. Her Honour found they were not and consequently dismissed the charge against the respondent. Mossop J agreed.
11. The appeal revolved around the interpretation of s 56A. The section states:
56A Arrest without warrant of person on bail
(1) This section applies if a person has been granted bail in the ACT, a State or another Territory.
(2)A police officer may arrest the person without warrant if the officer believes on reasonable grounds that the person—
(a) has failed to comply with a bail condition; or
(b) will not comply with a bail condition.
(3)The police officer must bring the person before a court as soon as practicable.
(4)The court may—
(a) for a person granted bail in the ACT—exercise the same powers in relation to bail as it has in relation to any other accused person in custody; or
(b) for a person granted bail in a State or another Territory—
(i)release the person unconditionally; or
(ii)grant the person bail subject to the conditions that the court considers appropriate; or
(iii)remand the person in custody for a reasonable time while a warrant for the person’s arrest is obtained from the State or other Territory.
(5)A release mentioned in subsection (4) (b) (i) does not affect the grant of bail in the State or other Territory.
12. The single ground of appeal states:
The learned judge erred in concluding that s 56A of the Bail Act 1992 did not authorise entry into premises without consent of the owner for the purposes of arresting a person who is believed to be in breach, or about to breach, a bail condition.
13. Commencing at [9] Mossop J set out the background to bail legislation in the Australian Capital Territory (the ACT). There is no need to repeat his Honour’s accurate chronology. For present purposes the relevant starting date is 1992 when the Bail Act was enacted. Section 53 of this Act stated:
53 Apprehension of person admitted to bail
(1) Where a police officer believes on reasonable grounds that a person who has been admitted to bail subject to conditions—
(a) has failed to comply with a condition on which he or she was admitted to bail; or
(b) will not comply with a condition on which he or she was admitted to bail;
(c) the police officer may apprehend the person without a warrant.
(2) A person who has been apprehended under this section shall be brought before the Magistrates Court as soon as practicable after he or she has been taken into custody.
14. Although his Honour did not reach a specific conclusion on the point ([27]), the parties agreed that the correct interpretation of s 53 allowed a police officer to exercise a common law right to enter premises to carry out an arrest.
15. In 1994 the Crimes (Amendment) ACT (No 2) 1994 (ACT) repealed s 53 and inserted a corresponding provision into Division 4 of the Crimes Act 1900 (ACT). The relevant section was s 349Z which stated:
349Z Power of arrest without warrant of person on bail
(1) A police officer may, without warrant, arrest a person who has been admitted to bail in the Territory, a State or another Territory, subject to conditions, if the officer believes on reasonable grounds that the person—
(a) has failed to comply with a bail condition; or
(b) will not comply with a bail condition.
(2) Where a police officer arrests a person under subsection (1), the officer shall cause the person to be brought before a court as soon as is practicable.
(3) Where a person is brought before a court under subsection (2), the court may—
(a) in the case of a person originally admitted to bail in the Territory—exercise the same powers in relation to the person in relation to bail (or dispensing with bail) as it has in relation to other accused persons in custody; or
(b) in the case of a person originally admitted to bail in a State or another Territory—
(i) release the person unconditionally;
(ii) admit the person to bail subject to such conditions as the court thinks fit; or
(iii) remand the person in custody for a reasonable time pending the obtaining of a warrant for the arrest of the person from the State or Territory in which the person was admitted to bail.
(4) A release referred to in subparagraph (3) (b) (i) does not affect the operation of the bail order or the conditions of the bail imposed in the other State or Territory.
16. Importantly, for this case, s 349ZE was also enacted. It states:
349ZE Power to enter premises to arrest offender
(1) Subject to subsection (3), if—
(a) an officer has, under a warrant, power to arrest the person for an offence; and
(b) the officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(2) Subject to subsection (3), if—
(a) an officer has the power under section 349W to arrest the person without warrant for an offence;
(b) the offence is indictable; and
(c) the police officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(3) A police officer shall not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the executing officer believes on reasonable grounds that—
(a) it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence relating to the offence.
(4) In subsection (3)—
“dwelling house” includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.
17. In 2001, by virtue of the Crimes Legislation Amendment Act2001 (ACT), renumbering of the Crimes Act 1900 (ACT) occurred so that s 349Z became s 215 and s 349ZE became s 220.
18. In 2004, s 215 was removed from the Crimes Act 1900 (ACT) by the Bail Amendment Act2004 (ACT) and placed in the Bail Act as s 56A, which has already been set out above.
19. His Honour found that the critical move, concerning the bail provisions, occurred in 1994. It was at this stage that the common law element (the right to enter premises) was effectively dropped. His Honour reached this conclusion because he found that the 1994 provisions not only imported s 53 of the Bail Act but also created a new regime which, in particular by s 349ZE, specifically extinguished the common law right of entry.
20. His Honour highlighted subsection (2) of s 349ZE as the relevant provision and emphasised the restriction of the power to arrest without warrant to indictable offences. In aid of his findings, his Honour referred to the Explanatory Memorandum for the Crimes (Amendment) Bill (No 3) 1994 (ACT) which specifically refers to common law rights of entry. The memorandum states:
At common law a police officer has power to enter premises to effect an arrest with or without the authority of a warrant. These provisions restrict that power in relation to arrest without warrant to indictable offences.
21. The respondent also drew the Court’s attention to the Official Hansard record of 2 February 1994 and in particular the Second Reading Speech for the Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1993 (ACT). The respondent’s submission was that the statements made in support of the bill were obviously aimed at the common law right to enter premises in pursuit of a person who had breached a bail condition. It was pointed out that s 349Z was the equivalent of s 3Y in the Commonwealth legislation (Crimes Act 1914 (Cth)). The then Attorney-General said:
The police have always been able to enter premises without a warrant where it is absolutely necessary, such as when in pursuit of a person whom they need to arrest.
Previously, this power has depended largely on the common law, which is well described in the New South Wales Supreme Court case Lippl v Hines, at page 620 18 New South Wales Law Reports No 620 (1989). In that case at page 630 Mr Justice Hope lamented that there was no statute which deals with these matters in a comprehensive way and the resolution of the position under general law imposed no little difficulty. The bill does precisely that. It spells out in clause 3ZA the limited circumstances in which the power can be exercised. I believe it is entirely consistent with the commitment of this government to codify the law to protect civil liberties of the individual and to ensure that it responds constructively to the Gibbs committee and the work of the Australian Law Reform Commission.
22. The respondent submitted that this Second Reading Speech was an endorsement of the Explanatory Memorandum set out above because the ACT legislation mirrored the Commonwealth legislation.
23. The final result of his Honour’s analysis was that the 1994 legislation had specifically severed the common law ‘attachment’ to what had been s 53 of the Bail Act.
24. The appellant submitted that his Honour’s reasoning was flawed, because:
(a)Whatever restrictions came into being with Division 4, they related only to offences.
(b)Breach of a bail condition is not an offence. Section 56A does not create an offence, indictable or otherwise.
(c)It is not an ‘arrestable’ offence to breach bail in the ACT.
(d)A warrant to arrest a person for a breach of bail is not available in the ACT.
(e)A warrant is only available under s56B for the arrest of a person outside of the ACT.
(f)Section 56A was the equivalent of s 53 and should be interpreted in the same manner.
(g)Moreover s 96 of the Legislation Act 2001 (ACT) states:
96 Relocated provisions
(1)This section applies if a provision of a law is relocated (with or without changes) to a different place in the same law or to a different law.
(2)The operation or meaning of the provision is not affected only because of the provision’s relocation.
(3)Without limiting subsection (2), if before its relocation the provision was to be interpreted in a particular way, it is to be interpreted in that way in its new location.
(h)The interpretation found by Mossop J could lead to “absurd” results.
(i)In addition, his Honour had, for no appropriate reason, extended the reference in s 349ZE to dwelling houses to all premises ([41] of the judgment).
25. In relation to the impact of the HRA, the appellant submitted that it simply did not apply. Section 56A was easily interpreted and its purpose was plainly to permit arrest without a warrant. The appellant said that the principles set out by the High Court in Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 supported the appellant’s straightforward approach to the interpretation of s 56A.
26. It is proposed to firstly examine whether the interpretation suggested by the appellant has merit and, if so, whether the HRA has any impact upon that result.
27. In relation to the construction of s 56A, the Court agrees with the appellant, although not necessarily for all of the reasons listed above. The Court sees the issue as one of simple statutory interpretation. In other words the answer here is provided by looking at the text itself combined with the agreed starting point, that, as s 53 of the 1992 Bail Act, the section carried with it a common law right to enter premises to effect the arrest.
28. The regime said to have been created by Division 4 should be read as being confined to offences. The Court agrees that this division introduced a new scheme in relation to offences but does not agree that arrest for breach of a bail condition is included.
29. As stated above, s 56A does not create any offence. It does no more than allow a police officer to arrest a person who he or she suspects on reasonable grounds has failed to comply with a bail condition or will not comply with a bail condition. The officer has no avenue available to him or her to obtain a warrant to arrest the person on bail.
30. It follows that if the person retreats into a dwelling, and remains there, he or she cannot be arrested. If an offence had been committed the officer could obtain a warrant and then enter the home to make the arrest. As submitted by the appellant, although the description “absurd” may not be appropriate, the section would be unworkable.
31. The wording of the power of arrest has remained generally consistent from its beginnings in s 53, through s 349Z, then s 215 and finally into s 56A. It would be a remarkable result if the meaning of a section changed notwithstanding that its wording remained constant.
32. The result would also be contrary to s 96 of the Legislation Act 2001 (ACT) set out above. There would need to have been a very explicit statement to override the assumption, which exists at common law, that the meaning of s 53 changed when it travelled into the consolidating Act. The common law position was concisely stated by Kirby P in Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 at 640F:
There is a presumption, useful in statutory interpretation, that where a
provision of legislation has been passed upon by authoritative decisions of the
courts and is later re-enacted, Parliament can be taken, in the absence of a
clear intention to the contrary, to know and accept the interpretations given
to the legislation.
33. Reliance in this matter on the Explanatory Memorandum and the Second Reading Speech for the Commonwealth Act is, with respect, misplaced. These external sources have no part to play in the absence of ambiguity in the section being interpreted. The starting point in statutory interpretation is the section itself. The terms of the section come before any examination of extrinsic material:
Whether or not extrinsic material is considered in interpreting a statutory provision, it is clear that the meaning attributed to the statute must be consistent with the statutory text. If the meaning which would otherwise be attributed to the statutory text is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful (to use a neutral term rather than those to be found in s 15AB(1) of the Acts Interpretation Act), that consideration of extrinsic material might be of assistance. It follows that it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction. If, when that is done, the meaning of the statutory text is not doubtful, there is no occasion to look to the extrinsic material. (Catlow v Accident Compensation Commission (1989) 167 CLR 543 at [6]).
34. In this case, as in Catlow, “the meaning of the statutory text is not doubtful”. It is also to be observed that neither the Explanatory Memorandum nor the Second Reading Speech mention the word “bail” in any relevant sense.
35. This is not to say that extrinsic material cannot in appropriate circumstances be relevant. Sections 141 and 142 of the Legislation Act 2001 (ACT) specifically allow for this to occur. It is not a mandatory direction however. In this case there is no need to rely on these sections.
36. Kirby J, in the High Court, in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56, at [95], listed five principles of interpretation beginning with the “textual analysis principle”:
The correct starting point for any analysis of a problem of statutory interpretation is the language of the statute itself. It is not a mass of past judicial authority dealing with the same or similar statutory provisions. If there has been one principle of statutory interpretation upon which this Court has spoken with general unanimity in recent years, it has been the obligation to begin the ascertainment of the applicable law by analysing the text in issue. Any other approach fails to accord proper attention to the authentic voice in which the lawmaker has expressed the governing rule.
37. Although the ultimate decision of Kirby J in Foots was dissenting there can be no argument with the above statement of principle.
38. In Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 the High Court said, at [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
39. More recently the High Court (Kiefel CJ, Bell and Nettle JJ) said this in SAS Trustee Corporation v Miles [2018] HCA 55 at [20]:
The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies. (Footnotes omitted)
40. The case put by the respondent was that the introduction of a new scheme into the Crimes Act 1900 (ACT), relating to the overall approach to be taken to entry into private premises, includes the provisions concerning breaches of a bail condition. As already pointed out, this analysis fails to distinguish between offences where the intention of the legislature is clear and the provisions are consistent with a logical attempt to confine the powers of police to enter a residence without a warrant.
41. To extend Division 4 to breaches of bail is a radical change which could only form a concluded interpretation if it was backed by the expression of a very specific intent to do so. That expression is absent here.
42. Turning now to the HRA, the appellant correctly submitted that the decision of the High Court in Momcilovic now dictated the relevant principles. Any debate arising from prior ACT cases like R v Fearnside [2009] ACTCA 3, 3 ACTLR 25 and In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147; 4 ACTLR 235 has now become redundant.
43. The HRC submitted that s 30 of the HRA influenced the interpretation of s 56A to render a result that matched the respondent’s interpretation of the latter section. At the core of the HRC’s submissions is that it is consistent with the human rights of a person that a police officer should not be able to ‘invade’ that person’s private residence or interfere with their liberty or security.
44. Section 30 states:
30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
45. Momcilovic involved interpretation of the Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’) and in particular the closely equivalent section to s 30 of the ACT legislation. There is no basis for interpreting the two corresponding sections in any different manner. However, before looking at the High Court judgment it is important to observe that s 30, by its very wording, contains a caveat, expressed in the words “So far as it is possible to do so consistently with its purpose, a Territory law…”. Accordingly, the HRA does not change an interpretation but rather assists with interpretation of a section provided that this assistance can be given in a way that is not inconsistent with the section’s purpose. If, as already found, s 56A reflects the law as it has existed at least since 1992, overtly including the intent of the law to allow entry into premises, then s 30 has no part to play in the present argument on interpretation.
46. The above point was made clear by the High Court in Momcilovic. Crennan and Kiefel JJ stated, from [544] (all quotes from Momcilovic omit the footnotes):
Ghaidan produces an outcome of compatibility with Convention rights which might follow upon compliance with the rather emphatically expressed direction in s 3(1) that a statute "must be read and given effect" to that end. Such an approach pays insufficient attention to the opening words of the sub-section, "So far as it is possible to do so", and whether they are directed to compliance with the usual rules of statutory interpretation in the context of the Charter. That question is answered in large part by s 32(1) of the Charter. It too opens with the words "So far as it is possible to do so" but continues "consistently with their purpose". The reference to statutory purpose points clearly to the task ordinarily undertaken by courts in construing legislation. In Project Blue Sky Inc v Australian Broadcasting Authority it was explained that the court's task is to construe the relevant provision in order to achieve consistency with the language and the purpose of the statute.
In the light of the Report of the Human Rights Consultation Committee and the Explanatory Memorandum to the Charter, s 32(1) must be taken to have been drafted with an awareness of s 3(1) of the HRA and the decisions in Ghaidan and later cases, to which reference will shortly be made. Section 32(1) does not direct, as s 3(1) does, that a statutory provision must be "read and given effect in a way which is compatible with [human] rights." It simply requires that, so far as it is possible to do so consistently with their purpose, all statutory provisions "must be interpreted" in a way which is compatible with Charter rights. This is a firm statement and one which, it may be inferred, was intended to overcome any misapprehension about the role of the courts in construing legislation. The reference to interpretation must be taken to be a reference to that process of construction as understood and ordinarily applied by courts, a process which is to be taken as accepted by the other arms of government in a system of representative democracy.
The important differences in the terms of the sections are themselves sufficient to distinguish s 32(1) of the Charter from s 3(1) of the HRA. It is not necessary to go further and consider other factors which might explain the approach taken in Ghaidan, factors which may have to do with alterations to parliamentary and judicial sovereignty and power which have been taking place since the United Kingdom joined the European Community, the status which has been accorded to the Convention in the United Kingdom and the role of the European Court of Human Rights in respect of the law of the United Kingdom. It may be observed that Ghaidan was followed in Sheldrake v Director of Public Prosecutions, where Lord Bingham of Cornhill observed that the "interpretative obligation" under s 3 "may require the court to depart from the legislative intention of Parliament." The later decision in R (Wilkinson) v Inland Revenue Commissioners exemplifies a more orthodox approach to construction in the application of s 3(1) of the HRA. There the term "widow" was held not to include a surviving spouse of male gender. Lord Hoffmann explained that, whilst the Convention forms part of the background against which a statute is to be construed, the question remains one of interpretation.
47. The reference to Ghaidan in the above quoted portion is to Ghaidan v Godin-Mendoza [2004] 2 AC 557, a decision in the House of Lords. The joint judgment in Momcilovic actually went a little further, stating that s 32 of the Victorian Charter was not strictly necessary when looking at principles of statutory construction. This was stated at [565]:
Section 32 does not state a test of construction which differs from the approach ordinarily undertaken by courts towards statutes. Its terms identify an approach of interpretation which has regard to the terms and to the purpose of the statutory provision in question, as previously discussed. The statutory direction in s 32(1), that statutory provisions "must be interpreted in a way that is compatible with human rights", is qualified by the recognition that such an interpretation is to be effected only "[s]o far as it is possible to do so consistently with their purpose". This statutory direction seeks to ensure that Charter rights are kept in mind when a statute is construed. The direction is not, strictly speaking, necessary. In the ordinary course of construction regard should be had to other existing laws. The Charter forms part of the context in which a statute is to be construed. It will be recalled that Lord Hoffmann viewed the Convention in a similar way in Wilkinson. The process of construction commences with an essential examination of the context of the provisions being construed.
48. And then at [566] the judgment makes the point that the normal rules of interpretation remain dominant:
Where it is possible, consistently with a statute's purpose s 32(1) requires that all statutory provisions are to be read conformably with Charter rights. Section 32(3)(a) acknowledges that this may not be possible in all cases, by providing that s 32(1) does not affect the validity of an Act or a provision of an Act which is incompatible with a human right. It cannot therefore be said that s 32(1) requires the language of a section to be strained to effect consistency with the Charter. When a provision cannot be construed consistently with the Charter, the provision stands. McGrath J's observations in Hansen, in connection with s 4 of the New Zealand Bill of Rights Act, are apposite to s 32(3)(a). They are that the effect of such a provision is that any inconsistent legislation prevails over a Bill of Rights document. Such a provision reaffirms the role of the legislature and makes clear that a court's role in ascertaining the meaning of the legislation remains one of interpretation.
49. This point was further emphasised in the judgment of French CJ at [46]:
The Court of Appeal held, in effect, that s 32(1) does not establish a new paradigm of interpretation. It does not require courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and hence from the intention of the parliament which enacted the statute. The Court referred to the Second Reading Speech, in which s 32(1) was described as a provision which "recognises the traditional role for the courts in interpreting legislation". The Court emphasised the importance of certainty in the interpretation of legislation pursuant to s 32(1). It observed, correctly in my respectful opinion, that if Parliament had intended to make a change in the rules of interpretation accepted by all areas of government in Victoria "its intention to do so would need to have been signalled in the clearest terms." This application of the principle of legality, to a propounded disturbance of the established constitutional relationship between the Victorian judiciary and legislature, was an expression of common law constitutionalism.
50. The Chief Justice said at [62]:
The interpretation mandated under s 32(1) must be consistent with the purpose of the statutory provision being interpreted.
51. Continuing on from this straightforward statement, having already emphasised that s 56A should not be interpreted in any way different to the interpretation it had carried when it existed in s 53 of the 1992 legislation, and not being satisfied that Division 4 of the Crimes Act 1900 (ACT) introduced a new regime applicable to the right of entry for breach of a bail condition, it must follow that s 30 of the HRA has no part to play in the interpretation of s 56A.
52. The next step is to consider whether s 28 of the HRA affects the conclusion just reached. This section states:
28 Human rights may be limited
(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.
(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose;
(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
53. The HRC submitted that the approach stated by Penfold J in Islam should be adopted. This Court disagrees. As already stated, the law to be applied is that to be derived from Momcilovic. The approach taken in the High Court to s 7(2) of the Victorian Charter (the equivalent of s 28) was not consistent. Nevertheless, it is evident from the judgments of French CJ, and, separately, Crennan and Kiefel JJ, that s 28 should not be read to influence the interpretive process when looking at the statute under consideration. This was stated at [574] and [575]:
574. Despite the word "compatible" appearing in s 32(1) (and "incompatible" in s 32(3)) it cannot be concluded that the enquiry and conclusion reached in s 7(2) informs the process to be undertaken by the courts under s 32(1). If some link between s 7(2) and s 32(1) were thought to be created by the use of such terms in s 32, such a result has not been achieved: (a) because the process referred to in s 32(1) is clearly one of interpretation in the ordinary way; and (b) because s 7(2) contains no method appropriate to the ascertainment of the meaning and effect of a statutory provision. The notion of incompatibility inherent in s 32(1) can only refer to an inconsistency found by a process of interpretation and no more. And so far as concerns the Supreme Court's role under s 36(2), its terms confirm that the concern of the Court is only with the question of whether a provision cannot be "interpreted consistently" with a human right. There is no suggestion in s 36(2) that the test provided by s 7(2) is to play any part in the making of a declaration. No attempt is made to link it with s 7(2), no doubt for good reason.
575. It is not possible to read s 7(2) so that it operates with s 32(1) or s 36(2). It is not necessary to determine whether it has any other consequences, although it is difficult to discern that it might. It might operate as a statement of principle directed to the legislature, but it forms no part of the role of the courts in interpreting a statutory provision in connection with the Charter or the making of a declaration by the Supreme Court.
54. Gummow and Bell JJ (and on this point Heydon J) took a different approach, finding that s 7(2) did have a part to play in the interpretive process. Nevertheless, in the present case, because of this Court’s conclusion that the accepted interpretation of s 53 travelled with this section to its present form in s 56A, and this interpretation long preceded the introduction of the HRA, then the HRA has no part to play in interpreting s 56A. It then follows that no assistance, in interpretation of s 56A, can be obtained through s 28.
55. It is necessary at this stage to refer to the written submissions filed on behalf of the Attorney-General. Counsel for the Attorney-General appeared at the hearing but did not wish to add to his written submissions.
56. The Attorney-General summarised his submissions as follows:
a.the meaning of a Territory law is governed by established rules of statutory construction in applying s 30 of the HRA;
b.in engaging in this initial process of statutory construction, any internal limitations will inform the scope of the right that is said to be engaged;
c.where more than one construction is available, the “interpretive rule” in s 30 of the HRA operates such that the interpretation that is consistent with the relevant human right, or rights, is to be preferred;
d.the “reasonable limits” test in s 28 applies as part of the context in which the process of statutory construction is to be conducted and, therefore, applies simultaneously with s 30;
e.where it is not possible to interpret a law compatibly with a right permissibly limited by s 28, the Supreme Court (and Court of Appeal) may issue a declaration of incompatibility.
57. The Attorney-General agreed with some aspects of the HRC’s submissions but differed on other points: most significantly the differences arose in respect of s 28. The Attorney-General submitted:
[34] The Intervener agrees with the submission of the Amicus that it is the “human rights” definition of “arbitrariness” that applies in this context: see AmS [28] and [32]. That is, in this human rights context, the concept of “arbitrariness” refers to decisions that are inconsistent with other protected rights and are unreasonable in the circumstances. An interference will be arbitrary in this context where it is, in all the relevant circumstances of the particular case, “capricious, unpredictable or unjust” and also where it is unreasonable in the sense of not being proportionate to a legitimate aim sought”.
[35] Where the Amicus and the Intervener part ways, however, is in respect to the operation of that internal limitation. In this regard, the Amicus relies upon the decision in Kracke v Mental Health Review Board (General) (2009) 29 VAR 1; [2009] VCAT 646 and submits that:
a.“whether a particular interference is unlawful or arbitrary should be considered as part of the justification analysis under s 28 [being the “reasonable limits” test] and not as a threshold question in determining whether the provision in question engages rights” (AmS [29]); and
b.similarly that the internal limitation “should not be taken into account for the purpose of determining whether the right is engaged” (AmS [32]). (References omitted)
58. The Attorney-General was careful to point out that he made no submission “as to the ultimate result in this appeal”. More specifically, he said that “The Intervener does not make any submission as to the construction of s 56A of the Bail Act…”. The Attorney-General was of the view that the approach to the HRA in this case “has broad implications beyond the present appeal”.
59. While the Court understands the apparent importance of this matter to both Intervenors, it does not see this judgment as carrying the significance to the HRA as seems to be contemplated by these two parties. This is firstly because of the attitude the Court has taken to the construction of s 56A and secondly because the relevant issues arising from the HRA have been dealt with by the High Court in Momcilovic.
60. The Attorney-General commented on the appellant’s submissions limiting the influence of international instruments and jurisprudence. The Attorney-General submitted that “This issue does not properly arise and therefore should not be determined by the Court in this appeal”. The Court agrees. Again the attitude taken by the Court to the construction of s 56A does not allow for consideration of the ‘International’ material, although that is not to say that such material may not be relevant to a different question of interpretation.
61. Returning to the initial conclusion, that s 56A should be interpreted to permit a right of entry into premises, as occurred in the facts of this case, it must follow that the appeal must be allowed.
62. The following orders are made:
(a)The appeal is allowed.
(b)The proceedings are remitted to the Supreme Court pursuant to s 37O(1)(c) of the Supreme Court Act 1933 (ACT) for determination according to law.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Loukas-Karlsson and Acting Justice Robinson. Associate: Date: |