The purpose of this blog series is not to argue the merits or otherwise of human rights legislation. That debate is over. Queensland has enacted the Human Rights Act 2019 (Qld) (‘HRA’). All participants in the justice system need to understand the impact that this may have on the administration of justice in Queensland, and their associated rights.

This first post will consider the HRA’s impact on statutory interpretation. Upcoming posts will consider:

  • Right to a fair hearing under the HRA
  • Case example: Unreasonable delay – R v Mills [2011] ACTSC 109
  • Case example: Bail – Gray v DPP [2008] VSC 4
  • Case example: Police powers and exclusion of evidence – DPP v Kaba [2014] VSC 52
  • Case example: Police powers and exclusion of evidence – R v Shaheed [2002] NZLR 377

Queensland’s HRA draws on the pre-existing human rights legislation from Victoria[1] and the Australian Capital Territory.[2] The case law and academic analysis from these jurisdictions provide the best insight into how the HRA will operate in Queensland. Also, the largely analogous legislation and jurisprudence from New Zealand[3] is a useful reference for Queensland.

Rule of statutory interpretation

In the Victorian Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’), s 32(1) outlines statutory interpretation in a manner largely similar to s 48 of the HRA. Both can be viewed as reflecting the principle of legality, but with a ‘wider field of application’.[4]

Both legislative instruments state that all statutory provisions, so far as possible and remaining consistent with their purpose, must be read in a way that is compatible with human rights.[5] However, the Queensland counterpart includes an extra provision stating that where a statutory provision cannot be interpreted in this manner, it must be interpreted ‘in a way that is most compatible with human rights’. Consequently, as the HRA comes into effect in 2020, there may be some differences in statutory interpretation between the Victorian Charter and the HRA.

For all other aspects of statutory interpretation, the Victorian Bench Book[6] is a useful guide to interpret specific statutory provisions or where an interpretation of a provision is an issue in any hearing. The Victorian Bench Book provides for the following steps in relation to the operation of s 31(1) of the Victorian Charter:-[7]

  1. Determine the provision’s potential meaning/s using ordinary grammatical meanings of the words in the provision (insofar as it does not contradict the purpose of the enactment).[8]
  2. Where the provision has a single clear and unambiguous meaning consistent with the purpose of the enactment, give the provision that meaning regardless of whether it limits Charter/HRA rights.
  3. If more than one potential meaning is evident, determine if the potential meanings limit one or more Charter/HRA rights:
    1. If only one potential meaning places no limits on any Charter/HRA rights, than that meaning should be given to the provision;
    2. If more than one potential meaning places no limits on any Charter/HRA rights, choose the meaning that better enhances or protects the Charter/HRA;
    3. If all potential meanings limit one or more Charter/HRA rights, the meaning that least limits the rights should be given.

Momcilovic v R (2011) 245 CLR 1

Momcilovic is the leading High Court decision on the operation of s 32(1) of the Victorian Charter,[9] holding that a provision’s meaning must be discerned according to ordinary techniques of construction, and that s 32(1) does not allow courts to modify the meaning of a provision beyond the limits of these techniques.[10]  French CJ stated that s 32(1) requires:[11]

statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms” but with a “wider field of application.

This approach has since been adopted in various cases.[12] Further, the High Court ruled that the power for the Supreme Court to make a declaration of inconsistent interpretation pursuant to s 36 of the Charter is a valid power.

Other HRA provisions impacting statutory interpretation

Supreme Court referral

Other courts and tribunals are able to refer questions relating to the application of the HRA or the interpretation of a statutory provision in accordance with the HRA to the Supreme Court.[13] After considering the question, the Supreme Court may make a declaration of incompatibility to the effect that the statutory provision cannot be interpreted in a way compatible with human rights.[14] This will then be referred to the relevant Minister for consideration and tabling in Parliament.[15] However, this declaration does not affect the validity of the statutory provision.[16]

Human rights may be limited

Section 13(1) HRA states that ‘A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’. Section 13(2) HRA then details various factors that will assist in deciding whether a limit is reasonable and justifiable, including:[17]

  • The nature of the right;[18]
  • The nature and consistency of the purpose of limitation;[19]
  • Whether there are less restrictive means of achieving the same purpose;[20] and
  • Balancing the importance of the purpose with the preservation of the human right.[21]

While the court in Momcilovic discussed the interaction between ss 32(1) and 7(2) of the Victorian Charter (equivalent to ss 48 and 13 HRA respectively), the judges differed in their opinion. There is therefore no binding authority on the role of s 7(2) in interpretation, and it remains a live issue.

International, foreign and local jurisprudence

Section 48(3) HRA is the same as its Victorian Charter counterpart (at s 32(2)). While the courts may consider international, domestic and foreign jurisprudence, they are not required to do so. This is not a novel exercise of judicial power, as courts are already permitted to have regard to international law and relevant domestic, foreign and international jurisprudence when interpreting statute.[22]

This is the first blog post in a series on the Queensland Human Rights Act, which will come into force on 1 January 2020. Keep posted!

[1] Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’).

[2] Human Rights Act 2004 (ACT) (‘HRAACT’).

[3] New Zealand Bill of Rights Act 1990 (‘NZBR’).

[4] Momcilovic v The Queen (2011) 245 CLR 1, [54] per French CJ.

[5] Victorian Charter (n 1) s 32(1); Human Rights Act 2019 (Qld) s 48(1) (‘HRA’) (emphasis added).

[6] Charter of Human Rights Bench Book (Vic).

[7] See 2.1 of the Charter of Human Rights Bench Book (Vic).

[8] Momcilovic v The Queen (2011) 245 CLR 1; WK v R (2011) 33 VR 516; Slaveski v Smith (2012) 34 VR 206; Nigro v Secretary to the Department of Justice (2013) 41 VR 359.

[9] to s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).  For a detailed discussion of how key provisions of the Victorian Charter were construed, see: Stephen Tully, ‘Momcilovic v The Queen: Case note’ (2012) 19 Australian International Law Journal 280.

[10] Momcilovic v The Queen (2011) 245 CLR 1 at [38]-[40], [50]-[51], [61]-[62] (French CJ); [146], [148]-[160] (Gummow J); [280] (Hayne J); [546], [565], [574] (Creenan and Kiefel JJ); [684]-[685] (Bell J).

[11] Momcilovic v The Queen (2011) 245 CLR 1 at [51].

[12] Slaveski v Smith (2012) 34 VR 206, [23]; Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [85].

[13] HRA (n 5) s 49.

[14] HRA s 53.

[15] HRA s 56(1).

[16] HRA s 48(4).

[17] NB this is a shortened version of the full section.

[18] HRA s 13(2)(a).

[19] HRA s 13(2)(b).

[20] HRA s 13(2)(d).

[21] HRA s 13(2)(g).

[22] Momcilovic v The Queen (2011) 245 CLR 1, [18] (French CJ)