did not amount to an arbitrary interference with
privacy and were compatible with the Charter.
The decision also included a detailed analysis of
the scope of the Charter's right to privacy with
reference to relevant international and national
human rights cases.
to clarify how the Charter works, in particular
the operation of the obligation to interpret laws
compatibly with human rights in section 32
and the obligation on public authorities to act
compatibly with and properly consider human
rights in section 38.
human rights
v The Queen in September 2011 held that section
32 is not a "special rule" of interpretation, in that
it does not change the duty of courts to give a
law the meaning the legislature intended the law
to have.
decisions in 2012 compared section 32 of the
Charter to the common law "principle of legality";
a presumption of interpretation that Parliament
would not make a law infringing fundamental
rights without making that intention clear.
expressed in ambiguous language will be
interpreted consistently with fundamental rights.
The Court of Appeal has considered that section
32 operates in a similar way to the principle of
legality in that where a law is capable of more
than one meaning, it must be interpreted in a way
that is most compatible with the broad range of
rights in the Charter. In certain cases, this may
require the words of a statute to be interpreted in
a way that does not correspond with the literal or
grammatical meaning.
did not resolve whether the reasonable limits
test in section 7(2) of the Charter should be
considered as part of the interpretive process
in assessing whether a law is compatible with
human rights. The Court of Appeal also left this
question unresolved in 2012.
uncertainty that the High Court's decision in
Momcilovic has left in relation to the interpretive
obligation in section 32 "has created challenges
for lawyers seeking to make use of the Charter in
statutory interpretation".
32 has continued to be applied by courts and
tribunals. For example, in the Taha and Brookes
case (described at page 32), the Court of
Appeal did not need to consider section 7(2) to
reach the conclusion that the interpretation of
the Infringements Act 2006 by the Magistrates'
Court was incompatible with the human rights
to equality, liberty and a fair hearing.
Infringements Act required the Magistrate to
consider a person's circumstances to ensure that
the person was not imprisoned in circumstances
that were disproportionate or unjust. The Court
did not need to consider "reasonable limits".
compatibly with human rights
unlawful for a public authority to act in a way that
is incompatible with human rights or, in making a
decision, to fail to give proper consideration to a
relevant human right.
tested in the Supreme Court in Bare v Small.
authority acts in a way that is unlawful under
section 38, the unlawfulness does not amount
to a "jurisdictional error" (an error where the
authority acts outside its powers) and nor will the
action be invalid because of the unlawfulness.
The decision is being appealed.
VSCA 91; and WBM v Chief Commissioner of Police
[2012] VSCA 159.
per Tate JA referring to Momcilovic v The Queen at
[170] per Gummow J (with whom Hayne J relevantly
agreed).