More on Momcilovic

I should, so as not to appear lazy, add a few observations on the aspects of R v Momcilovic (last entry) concerned with interpretation.

It is not unusual to find in Bills of Rights provisions to the effect that rights shall only be subject to such limitations as are justified in a free and democratic society. Section 32(1) of the Victorian Charter of Rights and Freedoms is an example. So too is s 5 of the New Zealand Bill of Rights Act 1990. The question is, are these provisions to be used in defining what the rights mean?

In Momcilovic the minority (French CJ, Crennan and Kiefel JJ) answer was no, s 32(1) is just a mechanism by which the court can decide whether to issue a declaration that the legislation in question inconsistent with the rights. However the majority (and I recall Dworkin's comments on the weights that might be given to individual judge's votes: Justice for Hedgehogs, pp 484-485) did use the rights-limiting provision as interpretive: Gummow J at 166-168, Hayne J agreeing at 280, Heydon J at 411-427, and Bell J at 678. Similarly, but where the New Zealand BORA does not give the courts power to make declarations, s 5 has been held to be interpretive, to be used to determine what the right means: Hansen v R [2007] NZSC 7 per Blanchard, Tipping, McGrath and Anderson JJ (57-60, 89-92, 186, 190-192), but with Elias CJ dissenting at 6, 7, 15-24. The Chief Justice's dissent takes the approach which was favoured by the minority of the High Court of Australia in Momcilovic.

But even this interpretive role in the New Zealand approach is not necessarily applied. For example, in Morse v Police [2011] NZSC 45, discussed here on 6 May 2011, only McGrath J used it.

The interpretive method, outlined by McGrath J in Hansen at 192, applies the following steps:

1. Ask first whether the circumstances fit within the ordinary meaning of the statutory provision being applied. Here, which standard of proof would be a natural interpretation of the reverse onus provision?
   
2. Then ask whether, on that meaning there appears to be an inconsistency with a protected right. Here, is the legal burden on the defendant inconsistent with the right to be presumed innocent?
   
3. If there is such an inconsistency, ask whether the limit on the right is a justifiable one in terms of s 5. Here, is the legal burden on the defendant justifiable?
   
4. If the limit is not justifiable, ask whether there is another meaning available through which the statute can be read consistently with the right. Here, can the reverse onus provision be read in a way that puts an evidential burden on the defendant?
   
5. If there is no such other meaning, the natural meaning must be applied. Here, the legal burden on the defendant.
   

For the fourth step, which is interpretive, the powers given by the relevant interpretive provision must be considered. Is the court limited to applying the ordinary and natural meaning of the legislation, or can the court apply a meaning that "can be given" to the enactment, or thirdly, is the court allowed to be more imaginative and strain the words of the statute to preserve the relevant right? In Momcilovic French CJ, Crennan and Kiefel JJ applied the ordinary rules of statutory construction, including the principle of legality, to determine the meaning of the reverse onus provision. This was the first of these interpretive approaches, although these judges were denying that the rights limiting procedure was relevant and were in effect just using step 1. Accordingly, no straining for an unnatural but rights-consistent meaning was permitted. There was no asking what might be reasonable limits on the right to be presumed innocent. But the minority agreed with the majority that the construction contended for by the defendant was not available on ordinary principles of statutory interpretation: to "satisfy" the court means more than merely to raise a reasonable doubt.

It is well worth reading French CJ's judgment in Momcilovic at 37-51 for a comparison with the approach in applying s 3 of the Human Rights Act 1998[UK], in particular at 49:

" ... Section 3 of the HRA has a history and operates in a constitutional setting which is materially different from that which exists in Australia. Before its enactment, United Kingdom courts, which had to give effect to the supremacy of European Community law, lacked domestic legislation providing for the direct application of rights under the ECHR. In the result there was a perception that British judges were denied the responsibility of safeguarding Convention rights and that the European Court of Human Rights had become "in effect a supreme constitutional court of the UK."[Footnote 97: "Lester, Pannick and Herberg (eds), Human Rights Law and Practice, 3rd ed (2009) at 12 [1.34]."] The HRA was enacted under the political rubric of "bringing rights home"[Footnote 98: "Lester, Pannick and Herberg (eds), Human Rights Law and Practice, 3rd ed (2009) at 12-15 [1.35]-[1.46]."]."

Perhaps this is a clue for anyone who, like me, is perplexed about why s 3 of HRA should be given a different meaning to s 6 BORA, as it was in Hansen and Lambert, as was mentioned in yesterday's note. The UK enactment applies the provisions of a Convention, whereas the NZ one is technically just an ordinary statute. In the absence of some sort of rationale like this, one is left with the thought that there is a bit of judicial pride being protected.


The UK interpretive approach is of the third kind mentioned above: some straining for a rights-compliant meaning is allowed (Ghaidan v Godin-Mendoza [2004] UKHL 30 noted here 19 September 2005), the New Zealand and Australian approaches are of the second kind.

And for a wee caustic-to-the-point-of-being-truthful glimpse of how the law works, see Heydon J in Momcilovic at 455.