Protecting us all: 2012 report on the operation of the Charter of Human Rights and Responsibilities Page 33

Chapter 3: The Charter in the courts 31

Key Charter cases in 2012

Cases considering a human rights-compatible
interpretation of the law (section 32 of the
Charter) have been more common than
cases considering an allegation that a public
authority has acted unlawfully under section
38 of the Charter.

Of the 14 main Charter cases of 2012 in
which decisions were made, only three
involved a person seeking relief or remedy on
the ground that the act or decision of a public
authority was unlawful under section 38.

Another considered section 38 in relation to
whether an action to be authorised by a court
order would result in a public authority acting
incompatibly with human rights.

In 2012, there were no findings that a public
authority acted unlawfully under the Charter.

Section 32

Section 38

Section 32 and Section 38

Key

Charter

cases

Where a case is concerned with how to interpret
a law consistently with the Charter (section 32),
courts and tribunals have tended to reach a
human rights-compatible interpretation of the law
by referring first to ordinary principles of statutory
interpretation and existing common law rights
and then referring to section 32 of the Charter. In
this way, the Charter's human rights framework
has been used in a number of cases to support
and reinforce the interpretation that a court or
tribunal has reached with reference to ordinary
principles of statutory interpretation.

There were no declarations of inconsistent
interpretation issued in 2012.

The case of R v Momcilovic

in 2010 remains the

first and only time a Victorian court has found a
statutory provision to be incompatible with human
rights and issued a declaration under section
36 of the Charter. However, because on the

appeal of the case, a majority of the High Court
in Momcilovic v The Queen

held that either the

declaration was invalid or was valid but should
not have been made, the declaration was set
aside. It is currently unclear how the Supreme
Court will approach section 36 of the Charter
following the High Court's decision.

Although the Charter has been in operation for six
years, the Court of Appeal has commented that it
can sometimes raise complex issues that will not
be appropriate in urgent court matters, such as
an interlocutory appeal in a criminal case.

This

means that courts are more likely to apply the
Charter in substantive or appeal hearings.

27 Cases where the Charter was a central argument.

This includes eleven decisions made in 2012 and
three cases which were heard in 2012 but where the
decision was made in 2013.

28 Slaveski v R (on the application of the prothonotary

of the Supreme Court of Victoria) [2012] VSCA 48,
Caripis v Victoria Police (Health and Privacy) [2012]
VCAT 1472 and Bare v Small [2013] VSC 129.

29 Re Beth [2013] VSC 189.

30 (2010) 265 ALR 751 (Court of Appeal).

31 (2011) 245 CLR 1.

32 Dale v The Queen [2012] VSCA 324. The Court of

Appeal made the same point in 2010, in the
decision of Wells v The Queen (No 2) [2010] VSCA
294, [40].