Momcilovic v The Queen & Ors
[2010] HCATrans 227
[2010] HCATrans 227
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M28 of 2010
B e t w e e n -
VERA MOMCILOVIC
Applicant
and
THE QUEEN
First Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA
Second Respondent
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION
Third Respondent
Application for special leave to appeal
FRENCH CJ
CRENNAN J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 3 SEPTEMBER 2010, AT 10.47 AM
Copyright in the High Court of Australia
MR M.J. CROUCHER: May it please the Court, I appear with my learned friend, MS K.L. WALKER, on behalf of the applicant. (instructed by Melasecca, Kelly & Zayler)
MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned friends, MR C.W. BEALE and MR B.L. SONNET, on behalf of the first respondent. (instructed by Solicitor for Public Prosecutions)
MS P.M. TATE, SC, Solicitor‑General for the State of Victoria: May it please the Court, I appear with my learned friends, MR S.G.E. McLEISH, SC, MS J.M. DAVIDSON and MR A.M. DINELLI, for the second respondent. (instructed by Victorian Government Solicitors Office)
MR S.P. DONAGHUE: May it please the Court, I appear with my learned friend, MR E.M. NEKVAPIL, for the third respondent. (instructed by Victorian Equal Opportunity & Human Rights Commission)
FRENCH CJ: It seems probably appropriate that the order of debate would be Mr Croucher first, followed I imagine by the Solicitor‑General, and then Mr Donaghue, and then Mr Silbert as the contradictor.
MR CROUCHER: Well, your Honour, that is what we actually planned to put to your Honours about that.
FRENCH CJ: It is a curious situation we find ourselves in where the Queen and her Attorney‑General appear to be on opposite sides of the debate, but no doubt we will be enlightened in due course.
MR CROUCHER: Your Honours, in order to avoid repetition and conserve time, it has been agreed as well between the parties that insofar as the second point is concerned, the Charter point, that I will adopt the submissions of the Solicitor‑General and Dr Donaghue on those points, save for one point that I want to emphasise and I will come to that shortly.
FRENCH CJ: All right. Yes, Mr Croucher.
MR CROUCHER: May I deal with the first point first, that is to say the ordinary construction, or using ordinary principles of construction, how section 5 should be construed. It is submitted that the Court of Appeal erred in rejecting the submission that on those ordinary principles of construction section 5 of the Drugs Act should be construed as casting on an accused only an evidential onus of disproof of possession.
There are six reasons. Firstly, whilst the concluding words of section 5, “unless the person satisfies the court to the contrary” impose an onus of disproof on an accused they do not expressly or impliedly indicate that such an onus can be discharged only on the balance of probabilities. It would have been a simple matter for the legislature to insert those words had there been an intention that the accused could discharge the onus only by persuasion on the balance of probabilities.
Secondly, the fact that that very course has been taken by the legislature in related provisions of the Drugs Act but not in section 5 is a powerful contextual matter that compels a different construction of section 5, in our submission. Contrary to the Court of Appeal’s view, this is not immaterial. It is a very material consideration. For example, in section 73(1), which creates the offence of possession of a drug of dependence, it provides that, “where the court is satisfied on the balance of probabilities” of certain matters a lesser penalty will apply.
That is a striking contrast with section 5 given that section 73 deals with an offence of possession and expressly specifies a reverse onus on the civil standard of proof, whereas section 5 does not, yet section 5 also deals with the notion of possession. In those circumstances, in our respectful submission, it would be incongruous to read into section 5 the words “on the balance of probabilities.
The third reason is this. To read section 5 as imposing a legal onus of disproof is inconsistent with other developments in the law concerning drug trafficking offences. That reading would create the untenable situation where in a case of alleged trafficking in a commercial or large commercial quantity of a drug of dependence, which are different offences, the accused would be required to prove on the balance of probabilities that he or she was not aware of the presence of the drug despite the fact that settled authority, namely, the Director’s reference in Nguyen, provides that the prosecution must prove beyond reasonable doubt an intention to possess a drug for the purpose of selling it and therefore an awareness of it in an amount exceeding the applicable quantity threshold.
The fourth reason is this. The plain reading, it is submitted, of section 5 is as follows. The provision simply creates a legal fiction that where a substance is found on, for example, premises occupied by an accused, without more that is sufficient to establish that the accused is in possession of that substance. If there is no evidence adduced to the contrary the accused will be deemed to be in possession. However, if the accused adduces evidence which in fact raises a reasonable doubt about any of the elements of possession, such as awareness of the drugs, then the accused will not be in possession because he or she will have “satisfied the court to the contrary”.
Accordingly, if there is evidence adduced capable of raising a reasonable doubt about possession it will be for the jury to determine whether or not they are satisfied beyond reasonable doubt that the accused was in fact in possession.
FRENCH CJ: Well, you are reading now from paragraph 15 of your submissions, I think.
MR CROUCHER: Yes.
FRENCH CJ: So the approach that you take on this primary construction or point is not one which requires the substitution of any words for “satisfies the court to the contrary” but simply says that properly applied they are met where you bring some evidence.
MR CROUCHER: Indeed. The fifth reason why that construction should be preferred is that construed in this way section 5 is still consistent with its purpose, which is that of facilitating proof of possession, because it still allows the prosecution to establish possession simply by proof of occupation of premises on which the drugs are found and it places an onus on an accused to adduce evidence that he or she was not in possession.
FRENCH CJ: I am sorry to interrupt, but looking at the language, where the accused merely provides some evidence how is the court satisfied, or what is it satisfied of?
MR CROUCHER: Of a reasonable doubt.
FRENCH CJ: So it is satisfied to the contrary of what? What is the proposition of which it is satisfied to the contrary?
MR CROUCHER: Possession. It is negative in an element of possession.
FRENCH CJ: Well, it is left in doubt about possession.
MR CROUCHER: Yes.
CRENNAN J: A doubt is raised ‑ ‑ ‑
MR CROUCHER: Yes, and that is sufficient.
CRENNAN J: By the “some evidence”.
MR CROUCHER: Indeed, whether it be evidence on oath or elicited in the prosecution case, whatever the case might be, but usually it will be from the accused’s own mouth. If no such evidence is adduced – this is the way it would work – if no such evidence is adduced the accused will still be deemed to be in possession, but importantly this construction, unlike the Court of Appeal’s construction, ensures that if an accused does adduce evidence that raises a reasonable doubt about possession, then he or she will not be convicted of the possession‑based offences of, for example, possession of drugs or trafficking in drugs based on possession for sale, this case. Finally, this construction is consistent with the principle of legality. Now, if all that is wrong ‑ ‑ ‑
FRENCH CJ: I am sorry, I am just having difficulty fitting it with the language, and going to the words of the statute, the proposition which the court is satisfied of, or the proposition from which the court has to be dissuaded, is the deemed “possession” for the purposes of this Act, is that right, of a substance?
MR CROUCHER: No, it does not have to be satisfied of deemed possession, it has to be persuaded of the absence of possession, if you like.
FRENCH CJ: Yes, the contrary in respect of which it has to be satisfied is that the accused has possession of the drug ‑ ‑ ‑
MR CROUCHER: Indeed.
FRENCH CJ: ‑ ‑ ‑ within the ordinary meaning of that concept.
MR CROUCHER: Yes, within the common law concept of possession.
FRENCH CJ: Yes. You say that if a reasonable doubt is raised it is thereby satisfied to the contrary of the proposition that the accused has possession of the drug?
MR CROUCHER: Indeed.
FRENCH CJ: Does that really fit logically?
MR CROUCHER: Yes, it does, and the same approach has been taken in other jurisdictions with similar provisions.
FRENCH CJ: Yes.
MR CROUCHER: We refer to the submissions to ‑ ‑ ‑
FRENCH CJ: Well, that does not answer my question.
MR CROUCHER: Well, our alternative submission, of course, is that this is a possible interpretation and in those circumstances might I move to the second point, and that is where the Charter issue comes in. As I said, I will be deferring to the Solicitor‑General and Dr Donaghue on this but I just want to make this point about it. This foregoing analysis demonstrates at the very least that the Court of Appeal erred in concluding that it was not possible within the meaning of section 32 of the Charter to interpret section 5 as casting on an accused only an evidential as opposed to a legal onus of disproof of possession of drugs.
BELL J: At a practical level, a provision such as section 5 is intended to assist the prosecution to get over the difficulty that some cannabis is found in a shared household and each of the occupants of the household can say it was not in my possession; that sort of case, is it not?
MR CROUCHER: Well, it is to facilitate proof, but that sort of case ‑ ‑ ‑
BELL J: Well, just looking at the proposition that you are putting, if all that the section requires is that on behalf of the accused one points to some evidence to raise a reasonable doubt about that proposition, what work does the section do?
MR CROUCHER: Because if nothing is said – if an accused person says nothing, adduces no evidence at all to the contrary ‑ ‑ ‑
BELL J: Points to no evidence.
MR CROUCHER: Points to no ‑ ‑ ‑
BELL J: For example, that there is another person who has access to the premises and whose drugs it could be.
MR CROUCHER: Well, another person might be a difficult situation, but, yes, that may be one, but it is usually a question of knowledge or intention. So if nothing is put on in the case about that then the deeming provision applies, so it still has work to do. Indeed, it was conceded by the Crown on the appeal before the Court of Appeal that this would not be the end of the world as we know it, that drug prosecutions would not be markedly affected at all, so it is significant, in our submission.
FRENCH CJ: I suppose the point I put to you, the concern about the sort of logical fit of the proposition that you are putting rather throws up the question of what is it that the Charter is asked to do, or what is it the court is asked to do in applying the Charter point if you could not get over the concern that I have expressed?
MR CROUCHER: Indeed, and that is where we say that – I accept that in relation to the first point it has to be shown to be the only interpretation effectively open, but, of course, when you come to the Charter point under section 32, if that interpretation is a possible one consistent with the right that is being violated, for want of a better word, then that is the one that must be preferred.
FRENCH CJ: Well, possible, you are using that in a sense of – I know we are probably slipping into the Charter issue now in the Ghaidan sense – which allows restrained language and putting in words, does it not?
MR CROUCHER: Well, we do rely on the Ghaidan sense of things, but no further and plainly on the Ghaidan approach to things this ought to have been interpreted in that way, the way that we contend ‑ ‑ ‑
CRENNAN J: Well, that means, does it not, you depart from the meaning which would have been arrived at by the ordinary rules of statutory interpretation?
MR CROUCHER: It may do. On section 5 and section 32 can I say one thing rather than cut across the Solicitor‑General? If section 5 were interpreted under section 32 of the Charter as placing only an evidential onus on the accused, as I say, it would still allow the prosecution to establish position merely by proof of the accused’s occupation of premises on which drugs were found such that the evident purpose of the provision would be preserved, but it would not do so in disproportionate diminution of the presumption of innocence by risking conviction of the serious possession‑based offences despite a lack of satisfaction beyond reasonable doubt of possession, an element of the offence. Instead, to employ the words of section 7(2)(e) of the Charter, such an approach would be a:
less restrictive means reasonably available to achieve the purpose that the limitation –
the limitation in section 5 –
seeks to achieve.
The Court of Appeal did not consider that issue at all. Can I then move to the third ground, which is, irrespective of the court’s view about the instruction of section 5 pursuant to section 32 of the Charter or ordinary rules, it is submitted that the authorities make clear that where knowledge of the presence of the drugs is in issue, despite section 5, a person cannot be guilty of trafficking as distinct from possession unless the prosecution prove beyond reasonable doubt that the accused is aware of the existence of the drugs in question.
In Tragear, when speaking of the Crown’s task on the retrial of Mr Tragear, Justice Callaway, with whom the other members of the court agreed, said:
even if the Crown successfully invokes s 5 in relation to counts 1 –
that is, trafficking –
and 2 –
that is, possession –
to establish possession, it will still have to prove beyond reasonable doubt that the applicant knew of the cocaine in the knapsack in order to secure a conviction on count 1 –
that is to say, the trafficking –
Otherwise he would lack the requisite mens rea, of which s 73(2) is only prima facie evidence.
BELL J: Is the point that you make in this respect that true enough it was from the point of view of the applicant a single issue case, namely, that she did not know that the drugs were located in the house, insofar as possession was concerned, bearing in mind section 5 on the interpretation that the court adopted, it fell to her to establish that it was more probable than not that she did not have that knowledge? Insofar as the trafficking count with which she was charged was concerned, notwithstanding the prima facie proof that the Act provided in that respect, it remained incumbent on the Crown to prove her guilt beyond reasonable doubt. Absent an appropriate direction, the jury having concluded that she had failed to establish the likelihood that she did not know that the drugs were in the freezer, did not exclude that they considered it reasonably possible that she did not know; that is the point, is it not?
MR CROUCHER: Precisely, your Honour.
BELL J: Well, yes, I think we understand that.
MR CROUCHER: Georgiou makes the same point. The only reason that same point failed in Georgiou was because it was not in issue at trial in Georgiou that - the question of knowledge was not in issue. So what happened was that whilst the Court of Appeal referred to Tragear and Georgiou, it is respectfully submitted that their Honours misapplied or misunderstood the principles for which those authorities stand.
The point of the relevant passages in those decisions, as your Honour Justice Bell has pointed out, that despite section 5 a person cannot intentionally possess a drug for sale, and therefore cannot have the intention to traffic in the drug, unless he or she is aware of the presence of the drug. Thus where such an awareness is in issue at trial on account of trafficking, as distinct from possession, as it was in the applicant’s case, then to adapt the words of Justice Callaway in Tragear, the jury must be instructed that the prosecution:
will still have to prove beyond reasonable doubt that the applicant knew of the –
methylamphetamine in her apartment –
in order to secure a conviction -
No such direction was ever given. The error is manifest, it is submitted. If the Court of Appeal accepted that this trial was conducted on the basis that knowledge was the principal issue, but all at trial, judge, both counsel, and the Court of Appeal, proceeded on the misapprehension that the onus remained on the applicant to prove on the civil standard that she did not know in order to avoid conviction effectively, whereas, as we say, it is plain that on those authorities that the ultimate onus of proof remains on the Crown to negative the reasonable possibility that she did not know.
The Crown’s response in their submissions to this point is to the effect that the direction deprives section 73(2) of any effect, but that, in our respectful submission, is misplaced. Section 73(2) is just a facilitative provision, giving the Crown a leg‑up as it were. It does not change the elements of the offence of trafficking, which requires proof of possession for the purposes of sale, which necessarily, as Justice Callaway has said, and as Justice Neave and Justice Robson said in Georgiou, requires proof beyond reasonable doubt that the person knew of the presence of the drugs.
Now, that in itself is a special leave point, plainly because there is a miscarriage of justice – this was the issue at trial – and the court’s misunderstanding of its own decisions in Georgiou and Tragear is a point that ought to come up to this Court, it is respectfully submitted. I perhaps should sit down at the moment and let the Solicitor‑General take up the lectern. If the Court pleases.
FRENCH CJ: Thank you, Mr Croucher. Solicitor?
MS TATE: May it please the Court. With respect to the Charter issues, we support the application for special leave on three grounds. The first is that special leave ought be granted so that this Court can resolve the differences of opinion on questions of law between the intermediate appellate courts of two jurisdictions, namely, the Court of Appeal from Victoria in this proceeding and the ACT Court of Appeal in the case of Fearnside (2009) 165 ACTR 22, and I will demonstrate those differences of opinion in a moment.
The second ground on which we say that special leave ought be granted is that there is a need for this Court to resolve the differences of opinion between judges of the Supreme Court of Victoria. Those differences are manifest in, on the one hand, the joint judgment of the three judges in this case and, on the other hand, the judgment of the Chief Justice in the case of DAS [2009] VSC 381, the judgment of Justice Nettle in RJE (2008) 21 VR 526, and the judgment of Justice Bell in Kracke [2009] VCAT 646.
Now, we submit that it is the distinctive role of this Court as the ultimate appellate Court in Australia to resolve differences of opinion of law across jurisdictions and within the one court. Indeed, the need for resolution of those differences forms precisely part of the express criteria provided for under section 35A of the Judiciary Act as the basis for a grant of special leave.
In addition to those two grounds we have a third ground, and the third ground supporting a grant of special leave is that the proceeding involves questions of law of public importance. The first question relates to the status of the interpretive direction, section 32 under the Charter. The question is, is the interpretive direction under section 32 of the Charter a special rule of interpretation? Now, the Court of Appeal in this proceeding at paragraph 33 defined what it meant by a special rule, and your Honours will see that in the application book in the Court of Appeal judgment at paragraph 33 at pages 65 to 66.
FRENCH CJ: Is it possible in considering the so‑called special rule of interpretation approach, which departs from ordinary rules of interpretation, to avoid the question which does seem to be implicit in one or two paragraphs of the Court of Appeal’s judgment, whether what the court is being asked on your contention in effect could be characterised as legislative in character?
MS TATE: Your Honour, is your Honour’s question could we characterise the question as to ‑ ‑ ‑
FRENCH CJ: Is there a risk or a possibility that the approach to the application of section 32 for which you contend and which was rejected by the Court of Appeal could within our constitutional framework be characterised as legislative?
MS TATE: Well, our answer in substance to that is no, your Honour, and the basis for that answer is that, in our submission, the construction of section 32 as a special rule of interpretation, namely, a rule which will allow a departure from the intended meaning of the enacting Parliament so as to allow a court to read in or read down or indeed sever certain provisions of a statutory provision in order to preserve compatibility with human rights, is analogous to the exercise that federal courts undertake pursuant to 15A of ‑ ‑ ‑
FRENCH CJ: Well, that is so far as the reading down and the severance is concerned, but not so easy when you talk about reading in, which means rewriting, does it not?
CRENNAN J: Well, particularly not when you are departing from the meaning of a provision which would be arrived at by applying the ordinary rules of statutory construction. I think the Chief Justice is highlighting a very real issue here, which is that if your argument does in fact involve the Supreme Court in exercising legislative power you are getting into Kable territory, and the question would be whether in doing that that was incompatible with its constitutional status as a potential repository of federal judicial power.
MS TATE: Well, your Honours, for the purposes of the grant of special leave we would say whether that question arises, namely, whether a special rule of interpretation would within an Australian framework require an exercise of legislative power so that it could not be performed by a federal court, a Chapter III court, and if it was performed by a State Supreme Court may give rise to Kable difficulties, is indeed a very question that would require resolution by this Court, but that is only to emphasise the importance of the character of the questions that are before this Court.
FRENCH CJ: I suppose another question in that general territory is the jurisdiction of this Court to set aside the order which you would say is a consequence of the relief being sought by the applicant, the order which embodies the declaration of the inconsistency.
MS TATE: Yes, your Honour.
FRENCH CJ: I mean, that raises a section 73 question, I suppose. It has been booted around in debate by commentators for some time.
MS TATE: Yes, your Honour, but there is no party in this proceeding who is inviting this Court to make a declaration of inconsistent interpretation.
FRENCH CJ: No, no, but you say we are in effect being asked to – and presumably you would support the proposition that the declaration of inconsistency made by the Court of Appeal should be set aside.
MS TATE: Should be set aside, yes, your Honour.
FRENCH CJ: Yes. I mean, that may well be a consequence of other arguments.
MS TATE: Yes, your Honour.
CRENNAN J: If the special rule applies you do not get to a declaration of inconsistency. That is the way the argument would go.
MS TATE: Indeed, your Honour.
CRENNAN J: Just to get back to the declaration of inconsistency for a moment, it has no dispositive effect, and it may also get into Kable territory, might it not, the power to make such a declaration in the sense ‑ ‑ ‑
MS TATE: Well, your Honour, we would say in substance that ‑ ‑ ‑
CRENNAN J: ‑ ‑ ‑ in the sense that the question arises, is that an exercise of judicial power? The Court of Appeal explains how making a declaration is part of a dialogue between Parliament and the Court, and that gives rise to a question as to whether that is an exercise of judicial power? How does one characterise it? Is it an advisory opinion? The case bristles with some constitutional issues which do not really surface in the submissions before us today.
MS TATE: Well, your Honour, we would say in substance as a response to the question of whether a declaration is dispositive of a proceeding, we would say a declaration of inconsistent interpretation does not affect the legal right to obligations of the parties, and that is expressly provided for under the Charter.
CRENNAN J: Under 32(3)(a)?
MS TATE: Yes, your Honour. Your Honours, we submit that a declaration of inconsistent interpretation is nothing more than a statement of a conclusion that has been reached about incompatibility in the task of interpretation that the court has decided, and that task of interpretation has a critical effect on the parties and on the disposition of the proceeding.
My learned friend, Mr Croucher, would not be here, at least in relation to the Charter issues, if it was not the case that an alternative interpretation of section 5 would have the effect that the conviction would need to be overturned, and at least a remittal for a retrial, so it has a direct and immediate effect on the disposition of the proceeding for the accused.
FRENCH CJ: I suppose all this means, Solicitor, is that if we were to grant special leave there would probably be a need to issue 78B notices because although there is no party who is putting this proposition it is there and it is open to the court to raise it, and it is an inescapable part really of the resolution of the issues.
MS TATE: Yes, we would not at all resist the formulation of constitutional questions and the filing of a 78B notice. Indeed, we would take the carriage of that process for ourselves.
FRENCH CJ: Yes. Now, presumably, you and Mr Silbert would be – the Attorney‑General and the Queen would be ad idem on the question of validity?
MS TATE: On the question of validity one would hope, your Honour. Of course, the DPP is an independent statutory office.
FRENCH CJ: Well, I think the chief Crown Prosecutor is representing the Queen, is he not, as the first respondent?
MR SILBERT: Yes, he is, your Honour.
MS TATE: Yes, your Honour. Well, within a federation there are questions about precisely what that means.
FRENCH CJ: Of course. Well, that is who appears on the front page of my application book.
MS TATE: Yes, that is right. Yes, your Honour. In any event, your Honour, there would certainly be an attempt to ensure that we were ad idem on the validity questions. Your Honours have seen clearly what it is that the Court of Appeal intended to mean by the expression “a special rule of interpretation” and the contest here is whether or not section 32 of the Charter is such a special rule; that is the first question of public importance. The second question of public importance is what methodology is to govern the application of section 32? Most particularly, at what stage does the question of whether an intrusion upon a right is justified, at what stage does that fall in the exercise of interpretation?
The Court of Appeal emphatically rejected the methodology endorsed by Justice Tipping in the New Zealand Supreme Court case of Hansen, and the judgment of Lord Woolf in Poplar Housing upon which Justice Nettle relied in RJE, and on the methodology embraced in Ghaidan, but there is a live question there as to whether or not the methodology that has been adopted in those jurisdictions, and indeed in Hong Kong in the case of Wai, and in other cases by Sir Anthony Mason and other members of the court, whether it is that methodology that ought to govern the application of section 32, or indeed whether that methodology ought be rejected.
Now, those two questions, the status is the first question and the methodology is the second question, are questions of law of public importance because they are the foundation for the operation of the Charter. More particularly, the interpretive direction potentially affects every piece of Victorian legislation. Similarly, section 30 of the Human Rights Act (ACT), which was amended to bring it into line with the Victorian provision, potentially affects every statute in the ACT statute book. We say that on that basis the public importance ‑ ‑ ‑
FRENCH CJ: Your statute does not actually create freestanding rights as such.
MS TATE: No, it does not, your Honour.
FRENCH CJ: I think the ACT statute may be different in that respect.
MS TATE: Yes. Yes, it does. There are differences between the two Acts, and when the ACT amended the Human Rights Act so as to bring their interpretive direction into line with Victoria’s, and so as to impose an obligation on public authorities to comply with human rights, they went further than the Charter and they created an enforceable cause of action. Victoria has not done that, your Honour. I believe that that commenced in the ACT, I think it was 1 January 2009.
CRENNAN J: Is this mandamus or relief of that sort?
MS TATE: It could possibly give rise to questions about whether that form of relief would be appropriate.
FRENCH CJ: My recollection is that they had some form of freestanding right even though the question of enforceability might have arisen ab initio.
MS TATE: Yes, your Honour, certainly there is now a freestanding ‑ ‑ ‑
FRENCH CJ: There is a question of how it informed private law and so forth.
MS TATE: Yes, your Honour. Well, might I turn then to the division of opinion between the Victorian Court of Appeal and the ACT Court of Appeal? In order to explain that division of opinion we need first to draw your Honours’ attention to the reasoning of Justice Besanko in the ACT case of Fearnside, which is behind tab 11 in the joint bundle of authorities.
Justice Besanko gave the leading judgment on human rights in Fearnside, and the two other judges, President Gray and Justice Penfold, agreed at paragraph [1] and paragraph [20] respectively. Can I take your Honours first to paragraph [80] of the judgment which sets out the interpretive direction in the Human Rights Act (ACT)? Your Honours will see – it is near the end of the page:
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.
Justice Besanko considers what methodology ought to apply for the application of section 30 and he does this, your Honours, at paragraph [97] where his Honour refers to the Supreme Court of New Zealand’s judgment in Hansen.
FRENCH CJ: Well, now, is this really adding anything to the basic propositions you have already put to us in support of the application for special leave?
MS TATE: Well, it is simply demonstrating that there is a division of opinion.
FRENCH CJ: Well, I think we know that.
MS TATE: Yes, your Honour. Well, I will not need to take your Honours further to that, save to say that it is clear from paragraphs [97] and [98] that Justice Besanko accepts that section 30 authorises a departure from intended meaning if the intended meaning intrudes upon a right unjustifiably and that triggers an obligation to revisit the statutory provision to see if there is an alternative interpretation that can be adopted, one that is compatible.
FRENCH CJ: I suppose the interesting logical question is whether the interpretive provision is in effect an amendment of pre‑existing law or whether it is an authorisation to the court to undertake an exercise which might be construed in that way, but that goes back to what we said before, and I imagine that would be some of the debate if special leave was granted that would be had.
MS TATE: Yes, your Honour, some of the fundamental questions.
FRENCH CJ: Yes, all right.
MS TATE: Your Honour, could I also draw your Honours’ attention to paragraphs [86] and [87] of the judgment of Justice Besanko where his Honour refers to the House of Lords case in Ghaidan which your Honour the Chief Justice has already referred to? His Honour states that he:
would respectfully decline to follow the court’s observations –
if there was any suggestion that a previous court of the ACT had followed Ghaidan. Then at [87] he says:
Nor, in my respectful opinion, does s 30 in its pre‑amended form, or in its present form, authorise and require the court to take the type of approach taken by the House of Lords in Ghaidan.
Now, I draw your Honours’ attention to those paragraphs because the Court of Appeal in this proceeding relies on those passages at paragraph 74 of its judgment to support its rejection of section 32 as a special rule. It is our submission that the Court of Appeal was in error in that regard, and it is our submission that paragraph 74 encapsulates the principal error into which the Court of Appeal fell.
We say that the error arises in part by a failure to distinguish between the several propositions for which the House of Lords judgment in Ghaidan is authority. There is a general reference to the approach in Ghaidan, and that general reference occurs at [87] in Justice Besanko’s judgment and it is expressed in that same way in the judgment of the Court of Appeal.
In our submission, there are four propositions for which Ghaidan stands, and Ghaidan is to be found at tab 5, and I will not take your Honours to the text of the judgment, but I will identity the four propositions for which we say it stands. The first proposition is that section 3 of the Human Rights Act (UK), that is the United Kingdom’s interpretative direction, has, in the Court of Appeal terminology, the status of a special rule.
The second proposition is that the task of applying section 3 involves asking whether on the ordinary principles of statutory interpretation the provision casts an unjustifiable limit on a right. Only if there is such an unjustifiable limit is there a need to revisit the initial interpretation, that is, the methodology embraced in Ghaidan is similar to that embraced by Justice Tipping in Hansen. The third proposition for which Ghaidan stands is that there is a recognition that there are constraints that apply in the exercise of interpretation.
FRENCH CJ: Solicitor, your time is up. Can you just succinctly state your last two propositions?
MS TATE: The last two propositions are that the recognition of constraints is that an interpretation cannot be adopted if it is contrary to a fundamental feature of the legislation or goes against the grain of the legislation, and the fourth proposition is that the interpretation should not depend, critically, upon the form of the words used in the statutory language.
Now, in our submission, your Honours, the Court of Appeal took Justice Besanko to have rejected the first two propositions, possibly the third, when, if one considers what Justice Besanko says at paragraphs [97] and [98], it is impossible, in our submission, to conclude that Justice Besanko in the ACT Court of Appeal rejected the view that the interpretive direction there was a special rule, or that the methodology to be applied included an assessment of justification in the task of interpretation. May it please the Court.
FRENCH CJ: Yes, thank you, Solicitor. Yes, Mr Donaghue.
MR DONAGHUE: Thank you, your Honour.
FRENCH CJ: I do not imagine you have much to add.
MR DONAGHUE: A few things, your Honour. In paragraph 1(a) of our submissions at page 171 of the application book we have submitted that the first reason that leave should be granted is because this application raises fundamental questions concerning the relationship between Parliament and the judiciary and that those are questions of a kind appropriately resolved by this Court. In that paragraph we attempt really to encapsulate the kinds of considerations that the Bench has just been discussing with the learned Solicitor‑General and really our submission in relation to those points is that however those questions are answered they are questions of such significance that they warrant grant of leave in this matter. They are questions of public importance and complexity.
In terms of the way that the question should be answered, we submit that in the event that leave is granted, the central issue that will fall for determination by the Court is whether the Victorian Parliament, in enacting section 32, has required, commanded courts to depart from the interpretation of a statutory provision that would have been reached, applying what the Court of Appeal termed the ordinary principles of interpretation, if two conditions are satisfied.
The first condition is that on an ordinary interpretation the provision would limit rights identified in Part 2 of the Charter in a way that is not demonstrably justified, that is, it brings in the section 7(2) question. The second condition is that an alternative interpretation of the provision that is compatible with rights is possible consistently with the underlying purpose, not at a high level of generality, but with the purpose underlying the statute, that being the same concept that is reflected in the purposive command in interpretation legislation both in Victoria in section 35(a) and at the Commonwealth level in section 15AB. They both refer to the underlying purpose of the legislation.
FRENCH CJ: I do not think these were underlying, do they?
MR DONAGHUE: They do; both sections.
FRENCH CJ: Yes, all right.
MR DONAGHUE:
purpose or object underlying the Act ‑ ‑ ‑
FRENCH CJ: Is that the same as “underlying trust” in Ghaidan?
MR DONAGHUE: The parallel is marked, your Honour, yes. We submit that it is the same idea and your Honours will have seen the quote in the Court of Appeal’s judgment from Sheldrake where there is a range of formulations, but they are all directed to the same idea as underlies the Victorian and Commonwealth legislation of purpose.
Now, in our submission, both Justice of Appeal Nettle in RJE and Chief Justice Warren in DAS, both of which were mentioned by the Solicitor‑General, accepted that section 32 creates a rule of the kind that I have just outlined, that is, a rule that requires a departure from the ordinary approach if those two conditions are satisfied and that, we submit, is what should have been done by the Court of Appeal in this case once the court found, as it found correctly, in our submission at paragraph 152, that section 5 unjustifiably infringed the presumption of innocence protected by section 25 of the Charter. The court should, having reached that conclusion, have gone back to its existing authorities; back to the text of section 5 and revisited the construction given to that section in Clarke and Tragear.
There are two points really that I seek to develop orally, and I will do them as briefly as I can. The first is that since section 32 has been enacted it is necessary for all courts interpreting Victorian legislation to recognise that effect must be given to the intent of two Parliaments. It is an error, we submit, and an error made by the Court of Appeal, to focus on the intent of the Parliament that enacted section 5 to the exclusion of the intent of the Parliament that enacted section 32, and it is the reconciliation of those competing intentions that gives rise to the problem that the House of Lords grappled with in Ghaidan.
The problem becomes particularly marked if the metaphor of the intent of Parliament is allowed to slip towards the subjective intention of the legislators and while the Court of Appeal disclaimed any such slippage there are parts of the judgment that, when referring to the intention of the legislature, appear to be referring to what the legislators, in enacting section 5, subjectively intended, rather than the meaning to given objectively to the words in their context.
The second point that I will address briefly relates to the issue that the Chief Justice raised with the Solicitor‑General concerning the line between interpretation and legislation, because we submit that the Court of Appeal mislocated that line. In terms of the first of those points and the Court of Appeal’s focus on the intention of the enacting Parliament, your Honours can see that most clearly in the first line of paragraph 77 at page 84 of the application book. There your Honours will see that the Court leads into that paragraph saying:
Our view that s 32(1) does not permit a departure from the intention of the enacting Parliament –
I use that just as an example, but that focus on the intention of the enacting Parliament is a theme of the judgment. The Court did not find it necessary to reconcile that intent with the intent of the Parliament that enacted section 32, because in effect it gave section 32 no work to do. The Court held, at paragraphs 103 and 104 that that section should be read just as a codification, admittedly with perhaps an updated list of rights, but essentially as a codification of the common law principle of legality.
In our submission, that conclusion cannot stand having regard to the legislative history of the provision and we have traced that history in paragraphs 6 to 10 of our outline, but just to emphasise the main points, first, the section as enacted is, with one exception, identical to the section drafted by the consultation committee that led to the Charter. The one exception is not the inclusion of the words “consistently with their purpose”. The exception is a shift from the words “legislation should be read and given effect in a particular way” to “legislation should be interpreted in a way”.
The consultation committee was the committee that came up with the words “consistently with their purpose” and they explained why in their report and they did so expressly by reference to the judgment of the House of Lords in Ghaidan, quoting from that judgment and indicating that the intention was to reflect the approach to purpose taken by the House of Lords in that case. The second reading speech for the Bill involved the Attorney‑General expressly saying that the Charter was modelled on human rights laws in effect in the United Kingdom, New Zealand and the Australian Capital Territory.
CRENNAN J: Did the consultation committee consider the differences between the unitary system in the United Kingdom and the fact that we have a federation in Australia?
MR DONAGHUE: Not to my recollection, your Honour, no. They indicated that - the apparent intention of the committee was to make it clear that section 32 did not cut the courts loose entirely from the purpose underlying the legislation that had been enacted. Some of the earlier decision of the House of Lords were thought, particularly The Crown v A, were thought perhaps to have gone too far from the parliamentary intention and the consultation committee appeared to be trying to tie things back.
CRENNAN J: Getting into the territory of being legislative?
MR DONAGHUE: Yes, but one thing we submit is clear from Ghaidan is that the House of Lords acknowledged that there is a line, and the line is the line between interpretation and legislation. So wherever the line be located, it is a line that section 32 does not authorise to be crossed and that, we submit, will ultimately be the answer to some of the fundamental constitutional points that otherwise are raised.
But the Attorney having expressly said that the provision was to be modelled on the human rights laws in the ACT, United Kingdom and New Zealand, the court neglected to recognise that in none of those jurisdictions is the interpretive provision regarded as just codifying the common law principle of legality. Instead, in all of them, the provision is given a role in remedial‑style interpretation after it is found that an ordinary interpretation results in an unjustified infringement of rights.
Finally, to the extent that it is relevant, the court made extensive reference to the parliamentary debates including references to the speeches of individual parliamentarians. We submit that they are of no real assistance in ascertaining the parliamentary intent, but to the extent that they are relevant, they show a fear on the part, particularly of the opposition members, that the courts would, to quote paragraph 90:
It will throw a new wild card into the interpretation of every statute on our books.
If that is what was of concern it is difficult to see how it can be said that section 32 does nothing more than codify the existing law.
FRENCH CJ: Well, I am not sure. Is not codification of legalities a little bit of a straw, and in a sense that the interpretive principle on any view of it is not confined to interpretation by reference to fundamental rights and freedoms at common law? It is interpretation by reference to the human rights and freedoms set out in the Charter, is it not?
MR DONAGHUE: Yes, I accept that, your Honour. There is some shift in - the principle of legality seems to focus on, as we understand it, two things, rights recognised ‑ ‑ ‑
FRENCH CJ: You have a constructional choice and you take that which is most protective of human rights and freedoms at common law.
MR DONAGHUE: Yes. Many of which are reflected in the Charter, and to that extent there would be no ‑ ‑ ‑
CRENNAN J: Overlap.
MR DONAGHUE: Yes, no change at all on the approach taken by the Court of Appeal. We submit that one once the consultation committee’s basing of its recommendation on Ghaidan is identified and once the decision of the House of Lords in Ghaidan is examined, it is impossible to conclude that Parliament intended to do no more than reflect existing rules because one only needs to glance at Ghaidan to see in all of the speeches of their Lordships an intention to do something new, a recognition that section 3 of the Human Rights Act (UK) does something new.
Your Honours, while I do not intend to dwell at any length on it, if I could invite the Court to open Ghaidan at tab 5 in the folder and just to note four paragraphs, all in the speech of Lord Nicholls, which was concurred in, although with additional observations by Lord Steyn, Lord Rodger and Baroness Hale. If your Honours look at page 570 under the heading “Section 3 of the Human Rights Act”, you will see in paragraphs 26 and 27 a recognition by Lord Nicholls that section 3 is the equivalent to section 32, that it is a key provision, it is:
the primary means by which Convention rights are brought into the law –
and in the last sentence of paragraph 26 a recognition that –
the courts must give effect to this intention –
reflected in section 3. Then in paragraph 27, his Honour acknowledges the difficulty that the word “possible” carries some ambiguity and that ‑ ‑ ‑
FRENCH CJ: But we have had something to say about the concept of legislative intention, I think, which was quoted by the Court of Appeal in Zheng v Cai and gives the lie, I think, to the proposition that they were, at least insofar as they relied upon that, were relying upon any subjective view of parliamentary intention.
MR DONAGHUE: Indeed, I accept that, your Honour, but my point at this stage of my submissions is to emphasise that both in the closing part of paragraph 26 and particularly in the last two sentences of paragraph 30 on the next page, the issue was squarely identified as what must the court do to comply with parliamentary command reflected in section 3? We submit that that must be the right question. Assuming the section be valid, the court has to determine that it needs to do to comply with the section.
CRENNAN J: It is that that third‑last section just above E must raise for consideration the issues which we were canvassing with the Solicitor, particularly given what has been said in Kable in relation to judicial power.
MR DONAGHUE: Your Honour, accepting that those issues need to be addressed, if the section is valid, and there was no suggestion of invalidity in the Court of Appeal, it must be given effect, and it cannot be given effect by depriving it of the meaning that Parliament evidently intended it to have. Either effect must be given to Parliament’s intention or the provision must be struck down. But we submit that the question that is identified ‑ ‑ ‑
CRENNAN J: The whole problem may have arisen in the Court of Appeal over the boundary issue.
MR DONAGHUE: Yes. Your Honours, can I turn to that question?
FRENCH CJ: We are just looking at the special leave issue. I think really further exploration of the substance may be counterproductive.
MR DONAGHUE: Your Honour, in that event, can I simply say, your Honours will have seen in our written outline that we draw strongly on the cases decided in this Court in the context of section 15A of the Acts Interpretation Act, and if your Honours were to look at those cases, particularly the cases decided just after that section commenced, the parallel in the discussion, including a discussion in the Court as to where the line is drawn between interpretation and legislation is remarkable.
The discussion parallels very closely the very issue grappled with in Ghaidan, and we submit that those cases are of assistance in reaching the conclusion that the Court of Appeal was wrong to characterise what is possible solely by reference to where you can get using the ordinary rules of construction. The section 15A cases give lie to that proposition. If the Court pleases, those are my submissions.
FRENCH CJ: Thank you, Mr Donaghue. Yes, Mr Silbert.
MR SILBERT: If the Court pleases, can I commence by addressing the point raised by Justice Bell because this started off as a criminal trial and the Charter of Rights did not raise its head until such time as we got to the Court of Appeal. Insofar as the questions raised by Justice Bell as to the established interpretations of section 5 and section 73 go, when your Honours look at the charge delivered by the judge, there was no question but that looking at say, page 28 of the application book, the directions given by the judge to the jury firmly instructed the jury that they had to be satisfied beyond reasonable doubt of the elements and that the prima facie provision was not of itself sufficient.
BELL J: I must say, Mr Silbert, I appreciated, I looked at his Honour charge that there was on more than one occasion, reference to the criminal onus in relation to the crime and the elements of the offence, but the matter that I raised with counsel concerning the impact of the charge did seem to me to have some force. I understood that to really be underlying his submissions on the second question, and it did seem to me at least arguable that a jury listening to that charge would have heard the incantation about the Crown’s standard and onus, but being left without an appreciation that having determined the issue of possession adversely on the way the case had been run to the applicant, there remained a consideration, were they satisfied beyond reasonable doubt on that same issue. I must say that seemed to me to perhaps not emerge clearly from the charge.
MR SILBERT: Yes, your Honour, it is to be found at pages 28 and 29; it is either there or it is not there, but I am simply directing your Honour to where it was there. In relation to the Charter point which raised itself in the Court of Appeal, and as Justice Crennan has remarked, the case now bristles with constitutional implications and it might not even be against the
interests of the Crown in right of Victoria if the matter were to proceed further on the constitutional aspects given that we may well be in Kable territory and there may be questions as to the validity of the Act.
Now, if the questions as to the validity of the Charter of Human Rights and Responsibilities Act do arise in the context of this litigation then the Crown would certainly not be resisting having those issues determined if the Court thought it was an appropriate vehicle to do so.
FRENCH CJ: Yes, you might not be a contradictor.
MR SILBERT: That is the difficulty, your Honour, because the Attorney‑General then would step in and as you say the locus standi of the Crown in right of Victoria might disappear. I do not know that I can add a lot. Your Honour in another case has talked about counterintuitive judicial glosses in words. This takes that concept ‑ ‑ ‑
FRENCH CJ: That was in the common law context.
MR SILBERT: Yes, I appreciate that, your Honour, but this Act takes counterintuitive judicial glosses to a whole new level and the Act effectively, if the interpretation contended for by my friends was to find favour really turns on its head traditional methods of judicial interpretation such that we have grown up with.
Now, it is either constitutionally valid or it is not constitutionally valid and I do not know that I can say anything other than answer any specific questions that the Court might want to address to me. I do not know that constitutionally I can add anything to what has been said other than that there may be issues as Justice Crennan referred to. If the Court pleases.
FRENCH CJ: Thank you, Mr Silbert. Mr Croucher, I do not think we need to hear from you in response.
MR CROUCHER: If the Court pleases.
FRENCH CJ: There will be a grant of special leave. I foreshadow that there may be a need to consider the issue of 78B notices and I would have thought, Solicitor‑General, that they would cover two issues, at least, firstly the question whether, if section 32, properly construed, confers on the Court a legislative function that – whether it does and whether it raises a question as to validity in the light of Chapter III of the Constitution and the function of the Court as a repository of federal jurisdiction, and secondly the question raised by the relief sought by the applicant so far as it would have the effect of setting aside the declaration of inconsistency, and at the very least I would think that might engage a question about section 73 of the Constitution.
MS TATE: Yes, your Honour.
FRENCH CJ: Now, plainly, neither I nor any of my colleagues on the Bench are expressing any, even provisional views about these things. It is simply a matter of identifying issues which we think may well have to be grappled with.
MS TATE: Yes, your Honour.
FRENCH CJ: All right. There will be a grant of special leave, and I imagine that we might be looking at two days on this.
MS TATE: I would have suspected at least two days, your Honour, and it may depend on whether there are any interveners on the constitutional questions. That may take the matter to a three‑day hearing.
FRENCH CJ: Yes, well we will see what happens.
MS TATE: Yes, your Honour.
FRENCH CJ: We will adjourn briefly to reconstitute.
AT 11.50 AM THE MATTER WAS CONCLUDED
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