Momcilovic v The Queen

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

VERA MOMCILOVIC  APPELLANT

AND

THE QUEEN & ORS  RESPONDENTS

Momcilovic v The Queen [2011] HCA 34
8 September 2011
M134/2010

ORDER

1.Appeal allowed.

2.Set aside paragraphs 1‑5 of the order of the Court of Appeal of the Supreme Court of Victoria dated 25 March 2010, and in their place order that:

(a)         the appellant have leave to appeal against her conviction;

(b)         the appeal be allowed;

(c)the appellant's conviction be quashed and sentence set aside; and

(d)         a new trial be had.

3.The second respondent pay two-thirds of the costs of the appellant in this Court.

On appeal from the Supreme Court of Victoria

Representation

M J Croucher and K L Walker with C A Boston for the appellant (instructed by Melasecca, Kelly & Zayler)

G J C Silbert SC with B L Sonnet and C W Beale for the first respondent (instructed by Solicitor for Public Prosecutions (Vic))

S G E McLeish SC, Solicitor-General for the State of Victoria with J M Davidson and A M Dinelli for the second respondent (instructed by Victorian Government Solicitor)

S P Donaghue with E M Nekvapil for the third respondent (instructed by Victorian Equal Opportunity and Human Rights Commission)

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with R M Doyle SC and A D Pound intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 8, 9 and 10 February 2011

H C Burmester QC with R M Doyle SC and A D Pound intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 7 June 2011

R J Meadows QC, Solicitor-General for the State of Western Australia and R M Mitchell SC with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))

M G Sexton SC, Solicitor-General for the State of New South Wales and K M Richardson intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)) at the hearing on 8, 9 and 10 February 2011

M G Sexton SC, Solicitor-General for the State of New South Wales with M L Rabsch intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)) at the hearing on 7 June 2011

G L Sealy SC, Solicitor-General for the State of Tasmania with S Gates intervening on behalf of the Attorney-General for the State of Tasmania (instructed by Crown Solicitor for Tasmania)

M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))

M A Perry QC with P J F Garrisson and K A Stern intervening on behalf of the Australian Capital Territory Attorney-General (instructed by ACT Government Solicitor)

M K Moshinsky SC with C P Young appearing as amicus curiae on behalf of the Human Rights Law Centre Ltd (instructed by Allens Arthur Robinson)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Momcilovic v The Queen

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Appellant convicted of trafficking in methylamphetamine contrary to s 71AC of Drugs, Poisons and Controlled Substances Act 1981 (Vic) ("Drugs Act") – Trafficking in methylamphetamine an indictable offence under s 302.4 of Criminal Code (Cth) – Commonwealth offence prescribed lower maximum penalty than State offence and different sentencing regime – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency.

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Functions conferred on State courts by State law – Compatibility with role of State courts under Ch III – Section 32(1) of Charter of Human Rights and Responsibilities Act 2006 (Vic) ("Charter") provided "[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights" – Section 36(2) of Charter empowered Supreme Court of Victoria to make declaration that statutory provision cannot be interpreted consistently with a human right – Declaration had no effect upon validity of provision or legal rights of any person – Nature of task required by s 32(1) of Charter – Whether s 32(1) reflection of principle of legality – Whether s 32(1) invalid for incompatibility with institutional integrity of Supreme Court – Whether s 36 confers judicial function or function incidental to exercise of judicial power – Whether s 36 invalid for incompatibility with institutional integrity of Supreme Court.

Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether declaration made under s 36 of Charter subject to appellate jurisdiction of High Court conferred by s 73 of Constitution.

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Appellant resident of Queensland at time presentment filed for offence under Drugs Act – Whether County Court and Court of Appeal exercising federal jurisdiction – Operation of s 79 of Judiciary Act 1903 (Cth) in respect of Charter and Drugs Act.

Criminal law – Particular offences – Drug offences – Trafficking – Possession for sale or supply – Section 5 of Drugs Act provided that any substance shall be deemed to be in possession of a person so long as it is upon any land or premises occupied by him, unless person satisfies court to the contrary – Section 70(1) of Drugs Act defined "traffick" to include "have in possession for sale" – Section 73(2) of Drugs Act provided that unauthorised possession of traffickable quantity of drug of dependence by a person is prima facie evidence of trafficking by that person – Whether s 5 applicable to offence under s 71AC on basis of "possession for sale" – Whether s 5 applicable to s 73(2) – Whether onus on prosecution to prove appellant had knowledge of presence of drugs – Whether onus on appellant to prove not in possession of drugs.

Statutes – Validity – Severance – Section 33 of Charter provided for referral to Supreme Court of questions of law relating to application of Charter or interpretation of statutory provisions in accordance with Charter – Section 37 of Charter required Minister administering statutory provision in respect of which declaration made under s 36(2) to prepare written response and cause copies of declaration and response to be laid before Parliament and published in Government Gazette – Whether, if s 36 of Charter invalid, ss 33 and 37, and balance of Charter, severable from s 36.

Statutes – Interpretation – Section 7(2) of Charter provided that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society – Whether s 7(2) relevant to interpretive process under s 32(1) – Whether s 5 of Drugs Act to be construed to impose evidential rather than legal onus on appellant.

Procedure – Costs – Criminal appeal – Departing from general rule for costs where appeal raised significant issues of constitutional law – Whether appellant entitled to special costs order.

Words and phrases – "declaration", "diversity jurisdiction", "evidential onus", "incompatibility", "institutional integrity", "interpret", "legal onus", "legislative intention", "matter", "possession", "possession for sale", "resident of a State", "right to be presumed innocent".

Constitution, Ch III, ss 73, 75(iv), 77(iii), 109.
Commonwealth of Australia Constitution Act 1900 (Imp), s 5.
Crimes Act 1914 (Cth), s 4C(2).
Criminal Code (Cth), ss 13.1, 13.2, 300.4, 302.4, 302.5.
Judiciary Act 1903 (Cth), ss 39(2), 79.
Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 25(1), 32, 33, 36, 37.

Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 5, 70(1), 71AC, 73(2).
Interpretation of Legislation Act 1984 (Vic), s 6(1).

FRENCH CJ.

Introduction

1. The main purpose of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter") is "to protect and promote human rights"[1].  The mechanisms by which it seeks to achieve that purpose include[2]:

   [1]Charter, s 1(2).

   [2]Charter, s 1(2)(a) and (b).

   ."setting out the human rights that Parliament specifically seeks to protect and promote"; and

   ."ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights."

   The rights are set out in Pt 2 of the Charter and include the right of a person charged with a criminal offence to be presumed innocent[3]. This appeal, from the Court of Appeal of the Supreme Court of Victoria, was brought by Vera Momcilovic against her conviction for trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ("the Drugs Act"). Section 5 of the Drugs Act provides that a substance on premises occupied by a person is deemed, for the purposes of the Act, to be in the possession of that person unless the person satisfies the Court to the contrary. The appeal raises a number of issues:

   .Whether s 5 of the Drugs Act should be interpreted, pursuant to the Charter, as placing on a person charged with an offence under the Act involving possession of drugs, only the evidential burden of introducing evidence tending to show that drugs found on premises occupied by that person were not in that person's possession.

   .Whether s 5 applies to the offence of trafficking in drugs created by s 71AC of the Drugs Act.

   .Whether s 71AC is invalid by reason of inconsistency with a provision of the Criminal Code (Cth) ("the Code") creating a similar offence with a different penalty.

   .Whether s 36(2) of the Charter, which provides that the Supreme Court may make a declaration that a statutory provision cannot be interpreted consistently with a human right, is valid and amenable to the appellate jurisdiction of this Court.

   .Whether, given that the appellant was a resident of Queensland at the time she was charged in Victoria, the County Court of Victoria and the Court of Appeal were exercising federal jurisdiction and, if so, whether that has any effect on the outcome of this appeal.

   [3]Charter, s 25(1).

2. There are four key provisions of the Charter in issue in this appeal. The first is s 25(1), which provides:

   "A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law."

   Section 25(1) informs the interpretive principle set out in the second key provision, s 32(1):

   "So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights."

   The third key provision is s 7(2), which provides that a human right may be subject under law to such reasonable limits as can be justified in a free and democratic society based on human dignity, equality and freedom.

3. The fourth key provision, s 36(2) of the Charter, authorises the Supreme Court, when it is of the opinion that a statutory provision cannot be interpreted consistently with a human right, to make a declaration to that effect. The declaration does not have any legal effect on the outcome of any proceedings before the Court nor on the validity of the statutory provision the subject of the declaration[4]. 

   [4]Charter, s 36(5).

4. The appeal was argued in the Court of Appeal as a case primarily concerned with the application of the interpretive rule under s 32(1) of the Charter, and the presumption of innocence under s 25(1) of the Charter, to s 5 of the Drugs Act. The appellant argued in this Court that, contrary to the finding of the Court of Appeal, s 5 should be interpreted as imposing only an evidential burden on an accused person to negative possession. On that interpretation, if the accused person could point to some evidence tending to show that he or she was not in possession of the substance, the legal burden would rest on the prosecution of proving possession beyond reasonable doubt. The appellant also argued that s 5, properly construed, does not apply to the offence of trafficking in drugs created by s 71AC.

5. For the reasons that follow, the appellant cannot succeed on her first Charter point relating to the burden of proof imposed by s 5. Neither the common law, nor the interpretive rules contained in the Interpretation of Legislation Act 1984 (Vic) ("the Interpretation Act") and in s 32(1) of the Charter, can transform s 5 of the Drugs Act so as to reduce the legal burden which it imposes to an evidential burden. However, properly construed by reference to the Charter, s 5 does not apply to the trafficking offence with which the appellant was charged so as to lift from the prosecution the burden of proving that she knew of the existence of the drugs she was said to be trafficking. On that basis alone, the appellant succeeds in the appeal and is entitled to a retrial. Her further contention, that the provision creating the offence with which the appellant was charged is inconsistent with similar provisions of the Code and thereby invalid by operation of s 109 of the Constitution, should not be accepted.

6. The Court of Appeal made a declaration under s 36 of the Charter that s 5 of the Drugs Act cannot be interpreted consistently with the presumption of innocence under s 25(1) of the Charter. One of the orders sought by the appellant involved setting aside that declaration. The proposition that this Court should make such an order rested upon two premises:

   1.That s 5 could be construed, compatibly with the right of a person accused of a criminal offence to be presumed innocent, so as to impose on that person only an evidential burden.

   2.That the Court has jurisdiction to entertain an application to set aside a declaration under s 36.

   Neither of the premises is satisfied. Although, in my opinion, s 36 validly conferred a non-judicial function on the Court of Appeal, it was not incidental to the Court's judicial function and was not, in any event, amenable to the appellate jurisdiction of this Court under s 73 of the Constitution. I agree, for the reasons given by Gummow J[5], that the County Court of Victoria and the Court of Appeal were exercising federal jurisdiction in this case.  That does not affect the outcome of the appeal or the orders which should be made by this Court.

   [5]Reasons of Gummow J at [134]-[139].

   Factual and procedural background

7. On 23 July 2008, the appellant was convicted in the County Court of Victoria, after a trial before judge and jury, of the offence of trafficking in a drug of dependence, methylamphetamine, contrary to s 71AC of the Drugs Act. She was sentenced on 20 August 2008 to a term of imprisonment of 27 months with a non-parole period of 18 months. On 29 August 2008, the appellant applied for leave to appeal to the Court of Appeal against her conviction and sentence. Her application was heard on 22 and 23 July 2009, and on 17 March 2010 the Court of Appeal delivered judgment, refusing the application for leave to appeal against conviction, allowing the appeal against sentence and substituting a term of imprisonment of 18 months[6].  It directed that so much of the sentence as had not already been served, be suspended for a period of 16 months[7].  On 3 September 2010, the appellant was granted special leave to appeal from the judgment and order of the Court of Appeal. 

   [6]R v Momcilovic (2010) 25 VR 436.

   [7](2010) 25 VR 436 at 487 [200].

8. Two undisputed facts in the case were:

   1.In January 2006, the appellant owned and occupied an apartment in Melbourne.  Her partner, Velimir Markovski, for the most part lived with the appellant in her apartment.

   2.On 14 January 2006, police found quantities of substances containing methylamphetamine at the appellant's apartment exceeding 719 grams in total.  The purity of methylamphetamine in 326 grams of a substance found in a coffee jar was not determined and consequently that substance was disregarded for the purposes of sentence[8].  Forensic evidence linked the seized drugs to her partner.  There was no forensic evidence linking any of the items to her. 

   [8](2010) 25 VR 436 at 485 [190].

9. On 21 July 2008, the Crown Prosecutor for Victoria filed a presentment in the County Court of Victoria, which was in the following terms:

   "THE Director of Public Prosecutions presents that

   VERA MOMCILOVIC

   at Melbourne in the said State on the 14^th day of January 2006 trafficked in a drug of dependence namely Methylamphetamine."

   At the time that the presentment was filed, the appellant was a resident of Queensland.  As explained by Gummow J[9], her trial, being a proceeding between a State and a resident of a different State, involved the exercise of federal jurisdiction conferred on the County Court of Victoria by virtue of s 39(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act") read with s 75(iv) of the Constitution.

   [9]Reasons of Gummow J at [134]-[139].

10. The appellant denied knowledge of the drug and of her partner's involvement in trafficking.  Her partner, who had pleaded guilty to charges brought against him in relation to the drug, admitted at the appellant's trial that the drug was in his possession for sale.  He denied that the appellant had been aware of its presence or of his drug trafficking activities.  The appellant adduced evidence that she had no prior convictions and was of good character. 

11. The trial judge's direction to the jury included the following important propositions[10]:

    1.The prosecution must prove beyond reasonable doubt that the appellant intentionally trafficked in a drug of dependence.  The act of trafficking alleged was possession of a drug of dependence for sale. 

    2.By operation of s 5 of the Drugs Act, the jury must find that the appellant was in possession of the drug at her apartment unless she could prove, on the balance of probabilities, that she did not know it was there.

    3.If the jury did not accept that the appellant did not know about the drug, the prosecution must still prove beyond reasonable doubt that the substance trafficked was a drug of dependence and that she intended to traffick a drug of dependence. 

    4.Absent evidence to the contrary, proof that the appellant possessed no less than six grams of methylamphetamine would be sufficient to enable the jury to find that she intentionally committed an act of trafficking and that what she trafficked was a drug of dependence. 

    5.Although the jury could use the uncontradicted evidence that the appellant possessed the relevant quantity of drugs to convict her, they could only do so if that evidence, either by itself or together with other evidence, satisfied the jury that the appellant was guilty beyond reasonable doubt of trafficking.  The jury must look at all the evidence, including the quantity of drugs possessed by the appellant, and consider whether they were satisfied beyond reasonable doubt that she intentionally had, in her possession for sale, a prohibited drug. 

    Although the trial judge directed the jury that the prosecution must prove that the appellant intended to traffick in a drug of dependence, he did not expressly direct the jury that before they could return a verdict of guilty they would have to be satisfied that the prosecution had proved beyond reasonable doubt that the appellant knew of the presence of the drug on the premises which she occupied.  The directions which were given were consistent with the assumption that s 5 applied to the offence of trafficking in a drug of dependence.

    [10]The propositions are paraphrased for brevity.

    The Drugs Act

12. Part V of the Drugs Act is entitled "Drugs of Dependence and Related Matters". It covers ss 70 to 80.

13. The offence with which the appellant was charged is created by s 71AC of the Drugs Act, which provides:

    "Trafficking in a drug of dependence

    A person who, without being authorized by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum)."

    The term "drug of dependence" is defined in s 4(1) of the Drugs Act by reference, inter alia, to drugs set out in column 1 of Pt 3 of Sched 11 to the Act. Methylamphetamine is such a drug. The term "traffick", in relation to a drug of dependence, is defined in s 70(1) to include "have in possession for sale, a drug of dependence".

14. Section 73(1) creates the lesser offence of possession of a drug of dependence[11]. Section 73(2) provides that unauthorised possession by a person of a drug of dependence in a quantity that is not less than the applicable traffickable quantity "is prima facie evidence of trafficking by that person in that drug of dependence." Section 70(1) defines "traffickable quantity" in relation to a drug of dependence by reference to Sched 11 to the Act. The traffickable quantity for methylamphetamine in January 2006 was six grams[12]. On its face, s 73(2) applies to s 71AC in relation to that aspect of trafficking defined as "possession for sale"[13]. 

    [11]The maximum penalties for possession of methylamphetamine are greater (400 penalty units and five years imprisonment) or less (30 penalty units and one year imprisonment) according to whether the offence was or was not committed for any purpose relating to trafficking in that drug:  s 73(1)(b) and (c). 

    [12]It was subsequently reduced to three grams:  Drugs, Poisons and Controlled Substances (Amendment) Act 2006 (Vic), s 20.

    [13]Section 73(2) also appears to engage with the penalty provisions in s 73(1)(b) and (c).

15. Central to this appeal was the interaction between the above provisions and s 5 of the Drugs Act, which extends the concept of possession to encompass a deemed possession based upon occupancy of premises in which drugs are present:

    "Meaning of possession

    Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary."

16. The Drugs Act does not otherwise define "possession", which therefore bears its ordinary meaning. To ascertain that meaning, however, is no ordinary task. The word "possession" embodies "a deceptively simple concept"[14] which has never been completely logically and exhaustively defined and may vary according to its statutory context[15].  It has been described as "always giving rise to trouble."[16]  Nevertheless, there are certain essential elements of the concept.  Possession of a thing ordinarily involves physical custody or control of it[17].  Possession has also long been recognised as importing a requirement, independent of common law mens rea, that the person in possession of something knows that he or she has it in his or her custody or control[18].  As Gibbs CJ said in He Kaw Teh v The Queen[19]:

    "where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ('in his possession') themselves necessarily import a mental element.  In such a case it is unnecessary to rely on the common law presumption that mens rea is required."

    The extent of the knowledge of a possessor inherent in the term "possession" used in a statutory context is "imprecise"[20].  It depends upon the statute.  It need not be explored here.  It is not necessary to consider the circumstances in which the word "possession" used in a statute implies knowledge of the nature of the thing possessed such as the identity of a drug.At the very least the knowledge imported by the use of the word "possession" in s 5 is knowledge of the existence of the substance possessed[21]. That knowledge is therefore deemed to exist as an incident of the deemed possession. The deemed possession may be negatived by negativing that knowledge. Whether it is necessary for the accused to go that far under s 5, interpreted in the light of the Charter, is one of the issues in this case.

    [14]R v Boyesen [1982] AC 768 at 773 per Lord Scarman.

    [15]Tabe v The Queen (2005) 225 CLR 418 at 423 [7] per Gleeson CJ; [2005] HCA 59, quoting Earl Jowitt in United States v Dollfus Mieg et Cie SA [1952] AC 582 at 605. See generally Warner v Metropolitan Police Commissioner [1969] 2 AC 256 at 280-282 per Lord Reid, 286-289 per Lord Morris of Borth-y-Gest, 298-300 per Lord Guest, 303-306 per Lord Pearce, 309-311 per Lord Wilberforce.

    [16]Towers & Co Ltd v Gray [1961] 2 QB 351 at 361 per Lord Parker CJ.

    [17]Hedberg v Woodhall (1913) 15 CLR 531 at 535 per Griffith CJ, Barton J agreeing at 536; [1913] HCA 2; Moors v Burke (1919) 26 CLR 265 at 268-269; [1919] HCA 32; Williams v Douglas (1949) 78 CLR 521 at 526-527 per Latham CJ, Dixon and McTiernan JJ; [1949] HCA 40; Tabe v The Queen (2005) 225 CLR 418 at 423 [7] per Gleeson CJ, citing Director of Public Prosecutions v Brooks [1974] AC 862 at 866.

    [18]Irving v Nishimura (1907) 5 CLR 233 at 237 per Griffith CJ, Barton J agreeing at 237; [1907] HCA 50.

    [19](1985) 157 CLR 523 at 539, Mason J agreeing at 546; [1985] HCA 43. See also at 589 per Brennan J, 599 per Dawson J.

    [20]Tabe v The Queen (2005) 225 CLR 418 at 423 [7] per Gleeson CJ.

    [21]This reflects the common law:  He Kaw Teh v The Queen (1985) 157 CLR 523 at 599 per Dawson J, citing Griffith CJ in Irving v Nishimura (1907) 5 CLR 233 at 237; Tabe v The Queen (2005) 225 CLR 418 at 446 [100]-[101] per Hayne J, 459 [143] per Callinan and Heydon JJ; Warner v Metropolitan Police Commissioner [1969] 2 AC 256 at 305 per Lord Pearce; HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 at 642 [65] per Sir Anthony Mason NPJ.

17. Two questions relevant to s 5 arise in this appeal. The first question is whether the section casts a legal onus on an accused person to negative possession of drugs in premises occupied by the accused. That was the view of the Court of Appeal. The appellant's contention is that s 5, interpreted compatibly with s 25(1) of the Charter, imposes only an evidential burden requiring the accused to do no more than introduce evidence capable of negativing possession[22]. The second question is whether the deemed "possession" in s 5 can be invoked by the prosecution and linked to the "traffickable quantity" provision in s 73(2) to establish "possession for sale". The term "traffick", as defined in s 70 and as used in s 71AC, includes having a drug of dependence in possession for sale. Both questions are to be answered by reference to common law and statutory rules of interpretation, including the interpretive rule created by s 32(1) of the Charter. Before considering those questions, however, it is necessary to refer to two additional provisions of the Charter: ss 32(2) and 7(2). The first expressly authorises resort to international law and decisions of international and foreign domestic courts relevant to human rights. The second declares that human rights may be subject to reasonable limits and sets out criteria for determining whether a limit on a human right is reasonable.

    [22]Purkess v Crittenden (1965) 114 CLR 164 at 167-168 per Barwick CJ, Kitto and Taylor JJ; [1965] HCA 34; Braysich v The Queen (2011) 85 ALJR 593 at 604-605 [33] per French CJ, Crennan and Kiefel JJ; 276 ALR 451 at 464; [2011] HCA 14.

    The use of international law and the decisions of international and foreign domestic courts

18. In addition to the interpretive rule created by s 32(1) of the Charter, s 32(2) provides:

    "International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision."

    Section 32(2) does not authorise a court to do anything which it cannot already do. The use of comparative materials in judicial decision-making in Australia is not novel[23].  Courts may, without express statutory authority, refer to the judgments of international and foreign domestic courts which have logical or analogical relevance to the interpretation of a statutory provision.  If such a judgment concerns a term identical to or substantially the same as that in the statutory provision being interpreted, then its potential logical or analogical relevance is apparent.  The exercise by a court of its capacity to refer to such material does not require the invocation of principles of interpretation affecting statutes giving effect to international treaties or conventions or specifically adopting their terminology[24].  Nor does it involve the application of the common law principle that statutes should be interpreted and applied, so far as their language permits, so as not to be inconsistent with international law or conventions to which Australia is a party[25]. Section 32(2) does not create a mechanism by which international law or interpretive principles affecting international treaties become part of the law of Victoria. On the other hand, it does not exclude the application of common law principles of interpretation relevant to a statute which adopts, as the Charter has, the terminology of an international convention.

    [23]See eg Kiefel, "Comparative Analysis in Judicial Decision-Making:  The Australian Experience", (2011) 75(2) The Rabel Journal of Comparative and International Private Law 354; Saunders, The Constitution of Australia:  A Contextual Analysis, (2011) at 102-106.

    [24]eg Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1997] HCA 4 concerning the application of Art 31 of the Vienna Convention on the Law of Treaties (1969); Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) at 43-46 [2.20]-[2.21].

    [25]Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363 per O'Connor J; [1908] HCA 95; Zachariassen v The Commonwealth (1917) 24 CLR 166 at 181 per Barton, Isaacs and Rich JJ; [1917] HCA 77; Polites v The Commonwealth (1945) 70 CLR 60 at 68-69 per Latham CJ, 77 per Dixon J, 80-81 per Williams J; [1945] HCA 3; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304-305 per Gummow J. See also Garland v British Rail Engineering Ltd [1983] 2 AC 751 at 771; R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696 at 747-748 per Lord Bridge of Harwich.

19. The "right" declared by s 25(1) of the Charter is expressed in terms found in Art 14(2) of the International Covenant on Civil and Political Rights (1966) ("the ICCPR"), Art 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) ("the ECHR") and Art 8(2) of the American Convention on Human Rights (1969) ("the ACHR"). It is found in other conventions and foreign domestic laws and constitutions[26].  Judgments of international and foreign domestic courts may be consulted in determining whether the right to be presumed innocent, declared in s 25(1), should be interpreted as congruent with the common law presumption of innocence or as extending beyond it.  The content of a human right will affect the potential application of the interpretive requirement in s 32(1) in relation to that right.  Nevertheless, international and foreign domestic judgments should be consulted with discrimination and care.  Such judgments are made in a variety of legal systems and constitutional settings which have to be taken into account when reading them.  What McHugh J said in Theophanous v The Herald & Weekly Times Ltd[27] is applicable in this context:

    "The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture."

    Despite our common legal heritage, that general proposition is relevant today in reading decisions of the courts of the United Kingdom, especially in relation to the Human Rights Act 1998 (UK) ("the HRA").  It is appropriate to take heed not only of Lord Bingham of Cornhill's remark about the need for caution "in considering different enactments decided under different constitutional arrangements"[28], but also his observation that "the United Kingdom courts must take their lead from Strasbourg."[29]

    [26]African Charter on Human and Peoples' Rights (1981), Art 7(1)(b); Arab Charter on Human Rights (2004), Art 16; Canadian Charter of Rights and Freedoms (1982), s 11(d); New Zealand Bill of Rights Act 1990 (NZ), s 25(c); Constitution of the Republic of South Africa (1996), s 35(3)(h). It is also imported by reference into the Human Rights Act 1998 (UK), discussed later in these reasons.

    [27](1994) 182 CLR 104 at 196; [1994] HCA 46.

    [28]Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 at 305 [33].

    [29][2005] 1 AC 264 at 305 [33].

20. The same general caution applies to the use of comparative law materials in construing the interpretive principle in s 32(1).  In this appeal what was said to be the strong or remedial approach taken by the House of Lords[30] to the application of the United Kingdom counterpart to s 32(1) of the Charter, namely s 3 of the HRA, was at the forefront of the appellant's submissions. However, s 3 differs textually from s 32(1) and finds its place in a different constitutional setting.

    [30]Ghaidan v Godin-Mendoza [2004] 2 AC 557.

    Reasonable limits – s 7 of the Charter

21. Section 7, which appears in Pt 2 of the Charter, recognises the possibility of justifiable limitations upon the enjoyment of the rights declared in the Charter. It provides:

    "Human rights – what they are and when they may be limited

    (1)This Part sets out the human rights that Parliament specifically seeks to protect and promote.

    (2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including –

    (a)the nature of the right; and

    (b)the importance of the purpose of the limitation; and

    (c)the nature and extent of the limitation; and

    (d)the relationship between the limitation and its purpose; and

    (e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

    (3)Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person."

    One of the issues in this appeal was whether s 7(2) has any part to play in the interpretation of statutes pursuant to s 32(1). On one view, a statutory provision limiting the enjoyment of a human right can nevertheless be compatible with that human right having regard to the criteria set out in s 7(2). Another view, that taken by the Court of Appeal, is that s 7(2) has no part to play in the interpretation of statutes pursuant to s 32(1), but is relevant to the question whether a declaration should be made under s 36(2) that the statute could not be interpreted consistently with a human right.

22. Section 7(2) sets out criteria for determining whether a limit imposed by law on a human right is "reasonable". As was said, in the Second Reading Speech for the Charter, it embodies "what is known as the 'proportionality test'."[31]  That test is of a kind well known to European jurisdictions and originates in German law and rule of law concepts, and may have application in particular contexts in Australia[32]. Neither the ICCPR nor the ECHR contains a general "reasonable limitations" clause like s 7(2)[33].  The European Court of Human Rights has implied a similar qualification into Art 6(2) of the ECHR involving the application of a proportionality criterion.  It has been described by the Privy Council as an implied "flexibility" in the Article[34].  The qualification appears to have been based on the reality acknowledged by the European Court of Human Rights that "[p]resumptions of fact or of law operate in every legal system."[35]  That qualification has been adopted in the United Kingdom in the application of the HRA, which applies to the laws of the United Kingdom the human rights set out in the ECHR[36]. The decisions of the European Court of Human Rights and the United Kingdom courts may be a source of guidance in determining whether particular limitations on the right to be presumed innocent are reasonable. They are, however, of little assistance in determining the function of s 7(2) in the Charter.

    [31]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2006 at 1291.

    [32]Reasons of Crennan and Kiefel JJ at [549]-[556].  The application of proportionality in the context of judicial review of legislation for constitutional validity was discussed by Kiefel J in Rowe v Electoral Commissioner (2010) 85 ALJR 213 at 290-297 [424]-[466]; 273 ALR 1 at 103-112; [2010] HCA 46.

    [33]This is by way of contrast with the general limitations in Art 29(2) of the Universal Declaration of Human Rights (1948) and Art 4 of the International Covenant on Economic, Social and Cultural Rights (1966).

    [34]Attorney-General of Hong Kong v Lee Kwong-kut [1993] AC 951 at 969.

    [35]Salabiaku v France (1988) 13 EHRR 379 at 388. See also Hoang v France (1992) 16 EHRR 53; Janosevic v Sweden (2002) 38 EHRR 473.

    [36]Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 at 297 [21] per Lord Bingham. See also, with respect to Art 11(1) of the Hong Kong Bill of Rights Ordinance 1991 (HK), Attorney-General of Hong Kong v Lee Kwong-kut [1993] AC 951 at 969-970. See generally Emmerson, Ashworth and Macdonald (eds), Human Rights and Criminal Justice, 2nd ed (2007), Ch 9.

23. The logical structure of s 7(2) presupposes the existence of the human rights protected and promoted by the Charter and declares the kinds of limits to which they may be subjected under the law. On its face it does not affect the content of those rights. They are the subjects of the limits to which it refers. It qualifies the extent of their protection and promotion. It has the appearance of a parliamentary reservation, which may be applied from time to time by leaving unamended existing legislation which encroaches on human rights or by enacting new legislation which does so. By way of example, in 2009 the Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009 (Vic) was enacted. Its "main purpose" was "to make amendments to various Acts to ensure compatibility with the Charter of Human Rights and Responsibilities."[37]  It replaced reverse legal burdens of proof in three statutes with evidential burdens and removed them entirely from offence provisions in another.  However, it left the reverse onus provisions of other statutes unamended[38].

    [37]Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009 (Vic), s 1.

    [38]Section 5 of the Drugs Act was not amended. Nor was s 145 of the Firearms Act 1996 (Vic), which is a similar provision relating to the possession of firearms.

24. The question is – what operation does s 7(2) have beyond declaring the general character of limits on the Victorian Parliament's commitment to the protection and promotion of human rights set out in the Charter? In the Second Reading Speech for the Charter, Pt 2, which includes s 7, was said to reflect the proposition "that rights should not generally be seen as absolute but must be balanced against each other and against other competing public interests."[39]  Section 7 was described as "a general limitations clause that lists the factors that need to be taken into account in the balancing process."[40]  It would "assist courts and government in deciding when a limitation arising under the law is reasonable and demonstrably justified in a free and democratic society."[41]  Where a right is so limited, "action taken in accordance with that limitation will not be prohibited under the charter, and is not incompatible with the right."[42]  The Second Reading Speech did not spell out the context in which courts would be called on to make such decisions.

    [39]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2006 at 1291.

    [40]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2006 at 1291.

    [41]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2006 at 1291.

    [42]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2006 at 1291.

25. The Court of Appeal held that justification of a limit on a human right "becomes relevant only after the meaning of the challenged provision has been established."[43]  The Court said that[44]:

    "the emphatic obligation which s 32(1) imposes – to interpret statutory provisions so far as possible compatibly with Charter rights – is directed at the promotion and protection of those rights as enacted in the Charter."

    The Court rejected the possibility that Parliament was to be taken to have intended "that s 32(1) was only to operate where necessary to avoid what would otherwise be an unjustified infringement of a right."[45] On the approach taken by the Court of Appeal, s 7(2) is to be considered only after the statutory provision under examination has been interpreted by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation Act[46]. 

    [43](2010) 25 VR 436 at 465 [105].

    [44](2010) 25 VR 436 at 466 [107].

    [45](2010) 25 VR 436 at 466 [107].

    [46](2010) 25 VR 436 at 446 [35], 465-466 [106].

26. The constitutions of Canada and South Africa constrain legislative power from infringing specified human rights and freedoms, subject to general provisions authorising the imposition of reasonable limitations on the enjoyment of those rights.  In those jurisdictions the first question to be asked about an impugned law is whether it limits one of the protected rights.  If the answer is in the affirmative, the second question is whether the law is nevertheless valid because it is justified as a reasonable limitation provision[47]. Section 7(2) was said, in the Explanatory Memorandum for the Charter, to have been modelled particularly on s 36 of the Constitution of South Africa. One approach to ascertaining the function of s 7(2) is to treat the reference to human rights "compatible" interpretation in s 32(1) as an analogue of the constitutional process for determining infringement. On the Canadian and South African authorities, the proportionality question goes to validity. It has no part to play in interpretation. That approach is consistent with the textual detachment of s 7(2) from the rights set out in the Charter and, thereby, from the interpretive rule in s 32(1).

    [47]This approach was taken in the application of s 1 of the Canadian Charter of Rights and Freedoms: R v Oakes [1986] 1 SCR 103, a decision involving a reverse onus provision in the Narcotic Control Act, which has since been followed in that country.  See R v Chaulk [1990] 3 SCR 1303 at 1339-1345 per Lamer CJ, 1372-1393 per Wilson J. Section 36 of the Bill of Rights of the Constitution of the Republic of South Africa was applied in a similar way in Ex parte Minister of Safety and Security:  In re S v Walters 2002 (4) SA 613 at 630-631 [26]-[27]; S v Thebus 2003 (6) SA 505 at 525-526 [29].  See also Currie and de Waal (eds), The New Constitutional and Administrative Law, (2002), vol 1 at 339; van Wyk et al (eds), Rights and Constitutionalism:  The New South African Legal Order, (1995) at 639-640 [2.1].

27. The approach taken in Canada and South Africa has been described as "distinct from the traditional common law approach to rights, which carves out a space for justified interference in fundamental rights by limiting the scope of the rights themselves and requires those asserting their rights to show that their claims fall within the more limited scope of the relevant fundamental right."[48]

    [48]Klug, The Constitution of South Africa:  A Contextual Analysis, (2010) at 117.

28. The New Zealand Bill of Rights Act 1990 (NZ) ("the NZBOR"), like the Charter, sets out rights and freedoms. Section 6, which is analogous to s 32(1) of the Charter, requires that preference be given to a meaning of an enactment "that is consistent with the rights and freedoms contained in this Bill of Rights". Section 5 of the NZBOR, like s 7(2) of the Charter, provides that the rights and freedoms in the Bill may be "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

29. In R v Hansen[49], a majority of the Supreme Court of New Zealand held that if the natural meaning of a statutory provision is prima facie inconsistent with a right set out in the NZBOR, the court should apply s 5.  If the natural meaning can be justified under that section, there is no inconsistency for the purposes of s 6.  If the natural meaning cannot be justified, then the interpretive process under s 6 must be invoked to attempt to identify a preferred alternative meaning consistent with the NZBOR.  A premise underlying that approach, articulated by Blanchard J, was that reasonable limitations of the kind justified under s 5 are constraints upon the rights and freedoms in the NZBOR[50].  Elias CJ, in dissent, applied the approaches adopted by the Supreme Court of Canada and the Constitutional Court of South Africa.  Her Honour held that in the context of the NZBOR, s 5 is directed to those making or advising on the making of legal prescriptions potentially limiting the enunciated rights and freedoms[51].

    [49][2007] 3 NZLR 1.

    [50][2007] 3 NZLR 1 at 27 [59]. See also at 36-37 [88]-[92] per Tipping J, 65-66 [190]-[192] per McGrath J; cf at 83 [266] per Anderson J.

    [51][2007] 3 NZLR 1 at 15 [23].

30. The appellant submitted that the question whether a statutory provision, interpreted according to its ordinary meaning, imposes a reasonable limit on a human right within the meaning of s 7(2) is an element of the question whether the provision is compatible with that right. If it is not compatible then the interpretive principle in s 32(1) is engaged. This submission was linked to the appellant's contention that s 32 embodies a "strong rule of construction" closely analogous to that found in the HRA. On the appellant's submissions s 32(1) is similar to statutory rules of interpretation which provide for statutory provisions to be read down or severed so as to avoid or minimise invalidity[52].  It should not, it was said, be seen as merely codifying the principle of legality. 

    [52]Acts Interpretation Act 1901 (Cth), s 15A; Interpretation Act, s 6.

31. The second respondent, the Attorney-General for Victoria, made a submission similar to that made by the appellant and pointed to the linkage in the Second Reading Speech between s 7(2) and the concept of compatibility. However, the same linkage was not made in the Explanatory Memorandum and, as already noted, is not made in the text of the Charter. Ministerial words in the Second Reading Speech cannot supply that statutory connection[53].

    [53]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 499 [55] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 264-265 [31] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; [2010] HCA 23.

32. The third respondent, the Victorian Equal Opportunity and Human Rights Commission, pointed to ss 28 and 38 of the Charter. Section 28 requires that a Member of Parliament introducing a Bill into the Parliament prepare a "statement of compatibility" to be laid before the House of Parliament into which the Bill is introduced. Section 38 makes it unlawful for a public authority to "act in a way that is incompatible with a human right". The third respondent submitted that the term "compatible with human rights" should be given a consistent meaning throughout the Charter. The argument for consistent construction may be accepted, but it does not require the incorporation of s 7(2) into the test for compatibility. Section 28 imposes no such requirement. A s 28 statement disclosing incompatibility between a proposed Bill and human rights may also set out the justification for that incompatibility under s 7(2) or leave that justification for parliamentary debate. And as the Human Rights Law Centre ("the Centre")[54] submitted, s 38(2) and (3) delimit the field of unlawfulness in s 38(1). Section 38(1) does not apply "if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision."[55] The example given at the foot of s 38(2) is "[w]here the public authority is acting to give effect to a statutory provision that is incompatible with a human right."[56]

    [54]Intervening as amicus curiae.

    [55]Charter, s 38(2).

    [56]An example at the foot of a statutory provision forms part of the Act: Interpretation Act, s 36(3A).

33. The Centre contended that the provenance and purpose of s 7(2) supported the approach taken by the Court of Appeal. It traced the ancestry of the subsection through s 5 of the NZBOR and s 36 of the Constitution of the Republic of South Africa to the inspiration for those provisions in s 1 of the Canadian Charter of Rights and Freedoms. The Centre pointed out that in R v Oakes[57] the Supreme Court of Canada expressly declined to consider s 1 of the Canadian Charter when interpreting a reverse onus provision. It applied s 1 only when considering whether the impugned law should be upheld.

    [57][1986] 1 SCR 103.

34. The Centre submitted that a proportionality assessment of the reasonableness of legislation is not an interpretive function. Section 7(2) cannot, it was said, form part of the interpretive process because the proportionality assessment that it requires cannot be undertaken until a construction has been reached. These submissions made by the Centre should be accepted.

35. The logical structure of s 7(2) is such that it cannot be incorporated into the content of the rights and freedoms set out in the Charter. The compatibility which is to be sought in applying s 32(1) is compatibility "with human rights". Section 7(2) cannot inform the interpretive process which s 32(1) mandates. The question whether a relevant human right is subject to a limit which answers the criteria in s 7(2) can only arise if the statutory provision under consideration imposes a limit on its enjoyment. Whether it does so or not will only be determined after the interpretive exercise is completed. As the question of reasonable limitations on rights under the Charter is dealt with by s 7(2), it is neither necessary nor appropriate to find in s 25(1) the implied "flexibility" found by the European Court of Human Rights in the presumption of innocence under Art 6(2) of the ECHR.

36. On the preceding logic, s 7(2) will also be excluded from consideration by the Supreme Court when determining, under s 36(2), whether a statutory provision cannot be interpreted consistently with a human right. Section 7(2) could still have a role to play in informing the discretion of the Court to decline to make a declaration of inconsistent interpretation under s 36(2). There would, after all, be no point in advising the Parliament of an inconsistency founded on a limitation that was "reasonable" according to the criteria in s 7(2). In the event, the justification of limitations on human rights is a matter for the Parliament. That accords with the constitutional relationship between the Parliament and the judiciary which, to the extent that it can validly be disturbed, is not to be so disturbed except by clear words. The Charter does not have that effect.

    Section 32(1) – the approach to interpretation

37. Section 32(1) takes its place in a milieu of principles and rules, statutory and non-statutory, relating to the interpretation of statutes.  It also takes its place in a constitutional tradition inherited from the United Kingdom in which[58]:

    "it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it'."

    [58]Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 234 per Viscount Dilhorne; [1978] 1 All ER 948 at 951, quoting 4 Co Inst 330.

38. The interpretation of a law of the State of Victoria by the Supreme Court of Victoria is "an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws."[59]  In that context "[a]scertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts."[60]  In that way, the duty of the Court defined in Project Blue Sky Inc v Australian Broadcasting Authority[61] is discharged:

    "to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have."

    [59]Zheng v Cai (2009) 239 CLR 446 at 455 [28]; [2009] HCA 52.

    [60]Lacey v Attorney-General (Qld) (2011) 85 ALJR 508 at 521 [43] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; 275 ALR 646 at 661; [2011] HCA 10.

    [61](1998) 194 CLR 355 at 384 [78] per McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 28.

39. There are different ways of undertaking the interpretive task and, in a particular case, they may yield different answers to the same questions[62].  But if the words of a statute are clear, so too is the task of the Court in interpreting the statute with fidelity to the Court's constitutional function.  The meaning given to the words must be a meaning which they can bear.  As Lord Reid said in Jones v Director of Public Prosecutions[63]:

    "It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear.  If they are capable of more than one meaning, then you can choose between those meanings, but beyond that you must not go." 

    [62]Corcoran, "Theories of Statutory Interpretation", in Corcoran and Bottomley (eds), Interpreting Statutes, (2005) 8 at 30.

    [63][1962] AC 635 at 662.

40. In an exceptional case the common law allows a court to depart from grammatical rules and to give an unusual or strained meaning to statutory words where their ordinary meaning and grammatical construction would contradict the apparent purpose of the enactment.  The court is not thereby authorised to legislate[64]. That common law approach is not open in this case as there is no disconformity between the language of s 5 of the Drugs Act and its purpose, or that of the Act as a whole[65]. 

    [64]Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at 651-652 [9] per French CJ and Bell J; [2009] HCA 40.

    [65]See also Reasons of Crennan and Kiefel JJ at [580]-[581].

41. Statutory provisions applicable to the interpretation of Victorian statutes are found in the Interpretation Act and include the requirement, in s 35(a), common to all Australian jurisdictions, that a construction that would promote the purpose or object underlying an Act shall be preferred to a construction that would not promote that purpose or object. The Court of Appeal drew a distinction between the application of s 32(1) of the Charter, which requires an interpretation which is consistent with the purpose of the relevant statutory provision, and s 35(a) of the Interpretation Act, which mandates a construction promoting the purpose or object of the Act as a whole[66]. The Court held that the result of its application of s 32(1) to s 5 of the Drugs Act would not have been different if s 32(1) were constrained only by the underlying purpose of the Act[67]. In any event, the purpose of a statutory provision, which constrains permissible interpretations under s 32(1), will ordinarily be a purpose that is consistent with and promotes the overall purpose of the Act in which the provision appears. It is not necessary to explore further the interaction between s 32(1) of the Charter and s 35(a) of the Interpretation Act having regard to the operation of s 32(1) in this case. Before turning to that operation it is desirable to consider the common law principle of legality.

    [66](2010) 25 VR 436 at 457-458 [75]-[76].

    [67](2010) 25 VR 436 at 467 [114].

42. The common law in its application to the interpretation of statutes helps to define the boundaries between the judicial and legislative functions.  That is a reflection of its character as "the ultimate constitutional foundation in Australia"[68].  It also underpins the attribution of legislative intention on the basis that legislative power in Australia, as in the United Kingdom, is exercised in the setting of a "liberal democracy founded on the principles and traditions of the common law."[69]  It is in that context that this Court recognises the application to statutory interpretation of the common law principle of legality.

    [68]Wik Peoples v Queensland (1996) 187 CLR 1 at 182 per Gummow J; [1996] HCA 40.

    [69]R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 at 587 per Lord Steyn.

43. The principle of legality has been applied on many occasions by this Court.  It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate.  It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law[70].  The range of rights and freedoms covered by the principle has frequently been qualified by the adjective "fundamental".  There are difficulties with that designation[71].  It might be better to discard it altogether in this context.  The principle of legality, after all, does not constrain legislative power[72].  Nevertheless, the principle is a powerful one.  It protects, within constitutional limits, commonly accepted "rights" and "freedoms".  It applies to the rules of procedural fairness in the exercise of statutory powers[73].  It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power[74].  It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations[75].

    [70]Potter v Minahan (1908) 7 CLR 277 at 304 per O'Connor J; [1908] HCA 63; Bropho v Western Australia (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1990] HCA 24; Coco v The Queen (1994) 179 CLR 427 at 436-437 per Mason CJ, Brennan, Gaudron and McHugh JJ; [1994] HCA 15; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21] per Gleeson CJ; [2004] HCA 40.

    [71]Finn, "Statutes and The Common Law:  The Continuing Story", in Corcoran and Bottomley (eds), Interpreting Statutes, (2005) 52 at 56-57, citing Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 298-299 [27]-[29] per McHugh J; [2001] HCA 14.

    [72]Whether there are certain common law rights and freedoms which constrain legislative power is an unexplored question:  South Australia v Totani (2010) 242 CLR 1 at 29 [31] per French CJ; [2010] HCA 39. See also Reasons of Crennan and Kiefel JJ at [562]. For a discussion of common law constraints on the executive power see Harris, "Government 'Third-Source' Action and Common Law Constitutionalism", (2010) 126 Law Quarterly Review 373.

    [73]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258-259 [11]-[15] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.

    [74]K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 520-521 [47]-[49] per French CJ; [2009] HCA 4, and cases there cited.

    [75]Lacey, "The Judicial Use of Unincorporated International Conventions in Administrative Law:  Back-Doors, Platitudes and Window-Dressing", in Charlesworth et al (eds), The Fluid State:  International Law and National Legal Systems, (2005) 82 at 84-85.

44. The common law "presumption of innocence" in criminal proceedings is an important incident of the liberty of the subject.  The principle of legality will afford it such protection, in the interpretation of statutes which may affect it, as the language of the statute will allow.  A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment.  On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden. 

45. The rights and freedoms of the common law should not be thought to be unduly fragile.  They have properly been described as "constitutional rights, even if … not formally entrenched against legislative repeal."[76]  Nevertheless, statutory language may leave open only an interpretation or interpretations which infringe one or more rights or freedoms.  The principle of legality, expressed as it is in terms of presumed legislative intention, is of no avail against such language. 

    [76]Allan, "The Common Law as Constitution:  Fundamental Rights and First Principles", in Saunders (ed), Courts of Final Jurisdiction:  The Mason Court in Australia, (1996) 146 at 148.

46. The Court of Appeal held, in effect, that s 32(1) does not establish a new paradigm of interpretation.  It does not require courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and hence from the intention of the parliament which enacted the statute[77].  The Court referred to the Second Reading Speech, in which s 32(1) was described as a provision which "recognises the traditional role for the courts in interpreting legislation"[78].  The Court emphasised the importance of certainty in the interpretation of legislation pursuant to s 32(1)[79].  It observed, correctly in my respectful opinion, that if Parliament had intended to make a change in the rules of interpretation accepted by all areas of government in Victoria "its intention to do so would need to have been signalled in the clearest terms."[80]  This application of the principle of legality, to a propounded disturbance of the established constitutional relationship between the Victorian judiciary and legislature, was an expression of common law constitutionalism.

    [77]R v Momcilovic (2010) 25 VR 436 at 459 [82].

    [78](2010) 25 VR 436 at 458 [81], citing Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2006 at 1293.

    [79](2010) 25 VR 436 at 463 [97].

    [80](2010) 25 VR 436 at 464 [100].

47. The appellant submitted that s 32 was intended to enact a "strong rule of construction" exemplified in s 3(1) of the HRA[81].  Section 32, it was said, should not be interpreted as merely codifying the common law principle of legality.  The analogical utility of s 3 of the HRA is undercut by its particular constitutional history and by its differing characterisations in the United Kingdom courts.  Lord Hoffmann in R v Secretary of State for the Home Department; Ex parte Simms[82] characterised s 3 as an express enactment of the principle of legality.  In Ghaidan v Godin-Mendoza[83], Lord Rodger of Earlsferry adopted Lord Hoffmann's characterisation[84].  Lord Hoffmann returned to his theme in R (Wilkinson) v Inland Revenue Commissioners[85], explaining s 3 of the HRA in the following way:

    "The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted.  Just as the 'principle of legality' meant that statutes were construed against the background of human rights subsisting at common law, so now, section 3 requires them to be construed against the background of Convention rights.  There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights."  (reference omitted)

    The other Law Lords in Wilkinson agreed with Lord Hoffmann.  That approach, however, was not consistent with the majority reasoning in Ghaidan which had supported a view of s 3 as travelling beyond the limits of the principle of legality.  The section was described in that earlier decision as "apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant."[86]  Lord Steyn described its function as "remedial"[87].  Metaphors were deployed to patrol these broadly defined boundaries.  They required that the application of s 3 be "compatible with the underlying thrust of the legislation"[88], that words implied must "go with the grain of the legislation"[89] and that the interpretation adopted not remove "the very core and essence, the 'pith and substance'"[90] or violate a "cardinal principle"[91] of the legislation.  The interpretive power, it was said, did not call for "legislative deliberation"[92].

    [81]That subsection provides:  "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

    [82][2000] 2 AC 115 at 132.

    [83][2004] 2 AC 557.

    [84][2004] 2 AC 557 at 593 [104].

    [85][2005] 1 WLR 1718 at 1723 [17]; [2006] 1 All ER 529 at 535.

    [86][2004] 2 AC 557 at 571-572 [32] per Lord Nicholls of Birkenhead.

    [87][2004] 2 AC 557 at 577 [49].

    [88][2004] 2 AC 557 at 572 [33] per Lord Nicholls.

    [89][2004] 2 AC 557 at 572 [33] per Lord Nicholls, quoting Lord Rodger at 601 [121].

    [90][2004] 2 AC 557 at 597 [111] per Lord Rodger.

    [91][2004] 2 AC 557 at 598 [113] per Lord Rodger.

    [92][2004] 2 AC 557 at 572 [33] per Lord Nicholls.

48. Notwithstanding the difference in approach between Ghaidan and the later case of Wilkinson, it is Ghaidan which, as the third respondent submitted, is routinely cited and applied[93] and treated as authoritative in leading United Kingdom text books and journals[94].In the Supreme Court of the United Kingdom in Ahmed v Her Majesty's Treasury[95], Lord Phillips said[96]:

    "I believe that the House of Lords has extended the reach of section 3 of the HRA beyond that of the principle of legality."

    [93]See eg Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 at 303-304 [28] per Lord Bingham, Lord Steyn and Lord Phillips of Worth Matravers agreeing; Vodafone 2 v Revenue and Customs Commissioners [2010] Ch 77 at 90‑92 [37]-[42]; Principal Reporter v K [2011] 1 WLR 18 at 40-41 [60]-[61]; HounslowLondon Borough Council v Powell [2011] 2 WLR 287 at 309 [62]; [2011] 2 All ER 129 at 152.

    [94]See eg Clayton and Tomlinson (eds), The Law of Human Rights, 2nd ed (2009), vol 1 at 175-177 [4.01]-[4.08], 190 [4.32], 197-199 [4.44]-[4.45]; Beatson et al, Human Rights:  Judicial Protection in the United Kingdom, (2008) at 459. 

    [95][2010] 2 AC 534.

    [96][2010] 2 AC 534 at 646 [112].

49. It is not necessary to explore further the general approach of the United Kingdom courts.  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."[97]  The HRA was enacted under the political rubric of "bringing rights home"[98].  If it has resulted in a shift in the constitutional relationship of the United Kingdom courts with the Parliament, that shift may at least have been informed by the interaction between those courts and the European Court of Human Rights[99].  Lord Bingham described the United Kingdom courts as "tak[ing] their lead from Strasbourg."[100]  In the Countryside Alliance Case in the House of Lords, Baroness Hale of Richmond said in connection with the application of the HRA[101]:

    "When we can make a good prediction of how Strasbourg would decide the matter, we cannot avoid doing so on the basis that it is a matter for Parliament.  Strasbourg will be largely indifferent to which branch of government was responsible for the state of the domestic law."

    [97]Lester, Pannick and Herberg (eds), Human Rights Law and Practice, 3rd ed (2009) at 12 [1.34].

    [98]Lester, Pannick and Herberg (eds), Human Rights Law and Practice, 3rd ed (2009) at 12-15 [1.35]-[1.46].

    [99]For an account of that interaction with the House of Lords see Feldman, "Human Rights", in Blom-Cooper, Dickson and Drewry (eds), The Judicial House of Lords 1876-2009, (2009) 541.

    [100]Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 at 305 [33].

    [101]R (Countryside Alliance) v Attorney General [2008] AC 719 at 777 [125].

50. Section 32(1) exists in a constitutional setting which differs from the setting in which the HRA operates.  It mandates an attempt to interpret statutory provisions compatibly with human rights.  There is, however, nothing in its text or context to suggest that the interpretation which it requires departs from established understandings of that process.  The subsection limits the interpretation which it directs to that which is consistent with the purpose of the statutory provision under consideration.  It operates upon constructional choices which the language of the statutory provision permits.  Constructional choice subsumes the concept of ambiguity but lacks its negative connotation.  It reflects the plasticity and shades of meaning and nuance that are the natural attributes of language and the legal indeterminacy that is avoided only with difficulty in statutory drafting. 

51. Section 32(1) does what Lord Hoffmann and the other Law Lords in Wilkinson said s 3 of the HRA does. It requires 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. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application. The Court of Appeal was essentially correct in its treatment of s 32(1).

    The right to be presumed innocent

52. In this case, it is not necessary to explore the full scope of the right to be presumed innocent under s 25(1).  Article 6(2) of the ECHR has been held to extend to prejudicial pre-trial statements and proceedings for the award of costs or compensation for detention on remand following discontinuance of criminal proceedings or acquittal[102].  It may be that s 25(1) also extends that far.  In this case, however, the Court is concerned only with its character as an expression of the requirement that the prosecution in a criminal case has the burden of proving guilt. 

    [102]Harris et al, Law of the European Convention on Human Rights, 2nd ed (2009) at 299-306.  See also Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights, 2nd ed (2005) at 426-428 [14.70]-[14.73]; Lester, Pannick and Herberg (eds), Human Rights Law and Practice, 3rd ed (2009) at 332‑335 [4.6.61]-[4.6.64].

53. The concept of the presumption of innocence is part of the common law of Australia, subject to its statutory qualification or displacement in particular cases.  It is therefore part of the law of the State of Victoria.  Its content, so far as it is relevant to this case, was concisely stated in Howe v The Queen[103]:

    "The presumption of innocence in a criminal trial is relevant only in relation to an accused person and finds expression in the direction to the jury of the onus of proof that rests upon the Crown.  It is proof beyond a reasonable doubt of every element of an offence as an essential condition precedent to conviction which gives effect to the presumption."

    Its meaning and operation were described by Sir James Fitzjames Stephen, in words still relevant, as "an emphatic caution against haste in coming to a conclusion adverse to a prisoner."[104] 

    [103](1980) 55 ALJR 5 at 7; 32 ALR 478 at 483.

    [104]Stephen, A General View of the Criminal Law of England, 2nd ed (1890) at 183, cited in Briginshaw v Briginshaw (1938) 60 CLR 336 at 352 per Starke J; [1938] HCA 34.

54. The presumption of innocence has not generally been regarded in Australia as logically distinct from the requirement that the prosecution must prove the guilt of an accused person beyond reasonable doubt[105].  In particular, Australian courts have not taken the view that a trial judge, who has correctly directed the jury as to the burden of proof, should also be required to make express reference to the presumption of innocence[106].  In the United States Supreme Court in the late 19th century, the presumption of innocence and the prosecutor's burden of proof were held to be logically separate and distinct[107].  In the face of "sharp scholarly criticism" that distinction was not maintained[108].  The term "presumption of innocence" was nevertheless regarded as a source of "significant additional guidance" for the ordinary citizen sitting on a jury[109].  Scholarly criticism has continued[110].

    [105]For an argument that the presumption of innocence was historically more than an instrument of proof and was unduly narrowed by common law scholars see Quintard-Morénas, "The Presumption of Innocence in the French and Anglo-American Legal Traditions", (2010) 58 American Journal of Comparative Law 107.  Its historical application to allegations, in civil proceedings, of criminal conduct was noted in Best, A Treatise on Presumptions of Law and Fact, (1844) at 18 and 29.  As to the standard of proof in such cases see Briginshaw v Briginshaw (1938) 60 CLR 336.

    [106]Palmer (1992) 64 A Crim R 1 at 6-7 per Finlay J, Gleeson CJ and Carruthers J agreeing; Tulic v The Queen (1999) 91 FCR 222 at 225 [13] per Dowsett J, Spender and Miles JJ agreeing; Noble v The State of Western Australia [2005] WASCA 33 at [19] per Steytler P, Roberts-Smith and Pullin JJA agreeing.

    [107]Coffin v United States 156 US 432 (1895).

    [108]Taylor v Kentucky 436 US 478 at 483 (1978).

    [109]436 US 478 at 484 (1978).

    [110]McCormick on Evidence, 5th ed (1999) at 519-520; Laufer, "The Rhetoric of Innocence", (1995) 70 Washington Law Review 329; Laudan, "The Presumption of Innocence:  Material or Probatory?", (2005) 11 Legal Theory 333.  See also Hamer, "A Dynamic Reconstruction of the Presumption of Innocence", (2011) 31 Oxford Journal of Legal Studies 417.

55. For present purposes the relevant aspect of the presumption, both at common law and as declared in s 25(1), is that expressed in the imposition on the prosecution of the legal burden of proof of guilt in criminal proceedings. One consequence of that identity of content is that the protective operation of the common law principle of legality with respect to the common law presumption also protects the relevant expression of the Charter right to be presumed innocent. As appears below, however, that protective operation is ineffective against the clear language of s 5.

    The construction of s 5

56. The starting point in construing s 5 is the ordinary and grammatical meaning of its words having regard to their context and legislative purpose.  According to that ordinary meaning, the operation of the section places upon an occupier of premises, in proceedings in which possession of a substance on the premises is in issue, the legal burden of persuading a court that he or she was not in possession of the substance.  On their face the words of the section defeat any attempt by applying common law principles of interpretation to read down the legal burden thus created. 

57. Prior to the enactment of the Charter, the received construction of s 5 of the Drugs Act in Victoria was that enunciated by the Full Court of the Supreme Court in R v Clarke and Johnstone[111].  It accorded with the ordinary meaning of the words of the section.  On that construction, s 5 required that the occupier of the relevant land or premises prove, on the balance of probabilities, that he or she was not in possession of the relevant substance within the common law meaning of the term "possession"[112].  It was submitted for the first respondent, and was not in dispute, that the decision of the Full Court in R v Clarke and Johnstone has been followed in many hundreds of cases since it was decided[113].

    [111][1986] VR 643.

    [112][1986] VR 643 at 647.

    [113]R v Tragear (2003) 9 VR 107 at 117 [42] per Callaway JA, Batt JA agreeing; R v Hiep Tan Tran [2007] VSCA 19 at [23] per Redlich JA, Nettle and Neave JJA agreeing; R v Georgiou [2009] VSCA 57 at [30] per Robson AJA, Neave and Redlich JJA agreeing.

58. The appellant submitted, against the received construction, that:

    .Section 5 imposes an onus of disproof on an accused in relation to possession but does not require disproof on the balance of probabilities. 

    .A construction of s 5 as imposing only an evidential onus on an accused is consistent with the purpose of that section. 

    .The evidential onus would be discharged by the accused raising a reasonable doubt about his or her possession[114].

    .The construction adopted by the Court of Appeal would have an anomalous result.  The onus on an accused of disproving knowledge of the existence of the relevant drugs would extend to a charge of trafficking under s 71AC involving "possession for sale" but would not apply to trafficking not based upon possession for sale.  As appears below, this anomaly does not arise if s 5 does not apply to "possession for sale". 

    .The ambiguous language of s 5 does not manifest a clear intention to impose the legal onus of proof on the balance of probabilities on the accused and, according to the principle of legality, s 5 should not be read as imposing that onus. 

    .If s 5 cannot be construed, pursuant to the principle of legality, as imposing only an evidential burden on an accused, such a construction is nevertheless "possible" within the meaning of s 32(1). 

    [114]See The People (Director of Public Prosecutions) v Smyth [2010] 3 IR 688, a decision of the Irish Court of Criminal Appeal applying Art 38.1 of the Constitution of Ireland to s 29 of the Irish Misuse of Drugs Act 1977.

59. The appellant invoked s 7(2)(e) of the Charter, which provides that the reasonableness of limits on a human right may be assessed by the existence of "any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve." The appellant pointed to a concession by the first respondent that a change from a legal onus to an evidential onus in the application of s 5 would not make any demonstrable difference to trafficking prosecutions. However, for the reasons already explained, the criteria set out in s 7(2) play no part in the interpretation of a law "in a way that is compatible with human rights" pursuant to s 32(1).

60. The appellant directed attention to decisions of courts in other jurisdictions dealing with reverse onus provisions in the light of human rights instruments incorporating the right to be presumed innocent. Perhaps unnecessarily, she called in aid s 32(2) of the Charter to justify the references to those decisions. In R v Lambert[115] the House of Lords construed a reverse onus provision[116] requiring the accused to "prove" want of knowledge or suspicion of certain matters, as imposing an evidential rather than a legal burden. Its interpretive approach embodied proportionality considerations of the kind that would be relevant under s 7(2) of the Charter. That approach to s 32(1) is not open under the Charter. The distinction is made clear upon a consideration of the way in which the House of Lords in Sheldrake v Director of Public Prosecutions[117] applied s 3 of the HRA to interpret a reverse onus provision in s 11(2) of the Terrorism Act 2000 (UK).  Section 11(2) began with the words "It is a defence for a person charged with an offence under subsection (1) to prove".  Lord Bingham, with whom Lord Steyn and Lord Phillips agreed, found that there was no doubt that Parliament had intended the reverse onus provision to impose a legal burden on the defendant.  There was no doubt that the provision was directed to a legitimate end[118]. The point of difference between s 3 of the HRA and s 32(1) of the Charter is thrown up by the observation of Lord Bingham that[119]:

    "The crucial question is therefore whether … imposition of a legal burden on a defendant in this particular situation is a proportionate and justifiable legislative response to an undoubted problem.  To answer this question the various tests identified in the Strasbourg jurisprudence as interpreted in the United Kingdom authorities fall to be applied."

    On that approach s 11(2) was read down to impose an evidential instead of a legal burden[120]. 

    [115][2002] 2 AC 545.

    [116]Misuse of Drugs Act 1971 (UK), s 28.

    [117][2005] 1 AC 264.

    [118][2005] 1 AC 264 at 312 [50].

    [119][2005] 1 AC 264 at 312-313 [50].

    [120]See also R v Webster [2011] 1 Cr App R 207, cited by the appellant, in which the words "unless the contrary is proved" in the Prevention of Corruption Act 1916 (UK) were construed as imposing an evidential burden.

677. The Court of Appeal concluded that, applying the interpretive rule of s 32(1) of the Charter, it is not possible to read s 5 other than as imposing a legal burden on the accused[955]. The Attorney-General for Victoria seeks to uphold the finding, although he contends that in arriving at it the Court of Appeal misapplied s 32(1). The Attorney-General for Victoria contends that the Court of Appeal should have held that the question of justification under s 7(2) is part of and inseparable from the task of statutory interpretation required by s 32(1). In this Court, the Attorney-General for Victoria did not maintain that the provision of a reverse onus in s 5, if construed as imposing a legal burden, is a demonstrably justified limitation on the Charter right. No party and no intervener put such a submission. Nonetheless a principal focus of the parties' submissions was on the relationship between s 7(2) and s 32(1). The parties were at one in submitting that the mandate of s 32(1) is to interpret statutory provisions in a way that is compatible with Charter rights as reasonably limited under s 7(2). Their submissions drew on the reasoning of the majority in Hansen. The Human Rights Law Centre ("the Centre"), appearing as amicus curiae, alone supported the Court of Appeal's interpretation of s 32(1) and the place of s 7(2) in the statutory scheme.

     [955]R v Momcilovic (2010) 25 VR 436 at 469 [119].

678. I consider that the Court of Appeal's construction pays insufficient regard to the place of s 7 in the scheme of the Charter[956]. The human rights that the Charter protects and promotes are the civil and political rights in Pt 2[957].  That Part commences with s 7, which is headed "Human rights – what they are and when they may be limited"[958]. The rights set out in the succeeding sections of Pt 2 are subject to demonstrably justified limits. This is consistent with the statement in the Preamble that human rights come with responsibilities and must be exercised in a way that respects the human rights of others. It accords with the extrinsic material to which the Court was referred[959]. The Charter's recognition that rights may be reasonably limited and that their exercise may require consideration of the rights of others informs the concept of compatibility with human rights. That concept is central to the ways in which the Charter applies to the Parliament, to courts and tribunals and to public authorities[960].   

     [956]Section 7 was described in the Explanatory Memorandum as one of the "key provisions" of the Charter: Victoria, Legislative Assembly, Charter of Human Rights and Responsibilities Bill 2006, Explanatory Memorandum at 7.

     [957]Charter, s 3(1), definition of "human rights".

     [958]Section 36(2A) of the Interpretation of Legislation Act 1984 (Vic) provides that headings to sections form part of Acts passed on or after 1 January 2001.

     [959]The Explanatory Memorandum stated that s 7(2) reflects "Parliament's intention that human rights are, in general, not absolute rights, but must be balanced against each other and against other competing public interests": Victoria, Legislative Assembly, Charter of Human Rights and Responsibilities Bill 2006, Explanatory Memorandum at 9. The Attorney-General's second reading speech recorded that the Bill provides that "rights should not generally be seen as absolute but must be balanced against each other and against other competing public interests": Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2006 at 1291.  See also Victoria, Human Rights Consultation Committee, Rights, Responsibilities and Respect, (2005).

     [960]Charter, s 1(2)(b), (c) and (d).

679. The Charter requires statements of compatibility to be prepared by the Member introducing a Bill into a House of Parliament[961].  The statement must state whether, in the Member's opinion, the Bill is compatible with human rights[962].  The Scrutiny of Acts and Regulations Committee ("the Committee") is under a duty to consider any Bill introduced into Parliament and to report to the Parliament as to whether the Bill is incompatible with human rights[963].  The Committee has a similar obligation to review all statutory rules[964]. The Centre submitted that these provisions are to be understood as requiring a Member introducing a Bill that contains a minor demonstrably justified limitation on a Charter right to inform the Parliament that the Bill is incompatible with human rights. In this way, it was said that the purpose of the Charter is vindicated by ensuring parliamentary scrutiny of any limitation on the human rights that it seeks to protect and promote. The submission tends to overlook the potential scope of some of the broadly stated rights. It is possible that the right to move freely within Victoria[965] has been reasonably limited by statute and regulations in a variety of ways including those regulating traffic. It is a questionable proposition that informed debate concerning the human rights implications of proposed legislation is advanced by a construction of the Charter that would require statements of incompatibility for every demonstrably justified limitation of a Charter right.

     [961]Charter, s 28(2).

     [962]Charter, s 28(3).

     [963]Charter, s 30.

     [964]Subordinate Legislation Act 1994 (Vic), s 21.

     [965]Charter, s 12.

680. The Charter applies to public authorities by obliging them to act in a way that is compatible with human rights. Section 38 relevantly provides:

     "(1)Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

     (2)Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

     Example

     Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

     …"

681. One reason for concluding that compatibility with human rights for the purposes of the Charter is to be understood as compatibility with the rights as reasonably limited under s 7(2) is the improbability that the Parliament intended to make unlawful the demonstrably justified acts of public authorities which happen to reasonably limit a Charter right. Contrary to the Centre's submission, s 38(2) will not always be engaged to protect a public authority in such a case.

682. The Centre supported the Court of Appeal's construction of ss 7(2) and 32(1) by a textual consideration. Section 32(1) does not say that statutory provisions are to be interpreted in a way that is "compatible with human rights as reasonably limited". One answer is to observe that the human rights of which s 32(1) speaks are the rights in Pt 2 as reasonably limited by s 7(2). However, it was said that this ignores that s 7(2) assumes the existence of a "law" that limits human rights and requires an assessment of the limitation including its purpose and extent. The "proportionality assessment" which s 7(2) requires is submitted to be inconsistent with a process of interpretation. The Centre acknowledged in its written submissions that "[n]one of this is to say that the rights are absolute; the scope of some of the rights is expressly limited and they must, in any event, be read together". However, if s 7(2) does not inform the interpretive function, there is no mechanism for the court in interpreting statutory provisions in a rights compatible way to recognise the need for rights to be read together. As the Centre's submission noted, some Charter rights are subject to express limitations. Consideration of whether a statutory provision is compatible with the right of freedom of expression must require determination of whether any apparent limitation is a reasonably necessary limitation within s 15(3) of the Charter. It is a task that may be thought to be of the same character as the determination of whether an apparent limitation on the right of peaceful assembly is demonstrably justified within s 7(2).

683. The Victorian Attorney-General's submission that the question of justification in s 7(2) is part of, and inseparable from, the process of determining whether a possible interpretation of a statutory provision is compatible with human rights should be accepted. It is a construction that recognises the central place of s 7 in the statutory scheme and requires the court to give effect to the Charter's recognition that rights are not absolute and may need to be balanced against one another. The point is made by Blanchard J in Hansen[966]:

     "It would surely be difficult to argue that many, if any, statutes can be read completely consistently with the full breadth of each and every right and freedom in the Bill of Rights.  Accordingly, it is only those meanings that unjustifiably limit guaranteed rights or freedoms that s 6 requires the Court to discard, if the statutory language so permits."  (emphasis in original)

     [966][2007] 3 NZLR 1 at 27 [59].

684. If the literal or grammatical meaning of a provision appears to limit a Charter right, the court must consider whether the limitation is demonstrably justified by reference to the s 7(2) criteria. As the Commonwealth submitted, these are criteria of a kind that are readily capable of judicial evaluation[967]. Consideration of the purpose of the limitation, its nature and extent, and the question of less restrictive means reasonably available to achieve the purpose are matters that commonly will be evident from the legislation. If the ordinary meaning of the provision would place an unjustified limitation on a human right, the court is required to seek to resolve the apparent conflict between the language of the provision and the mandate of the Charter by giving the provision a meaning that is compatible with the human right if it is possible to do so consistently with the purpose of the provision. Provisions enacted before the Charter may yield different, human rights compatible, meanings in consequence of s 32(1). However, the scope for this to occur is confined by the requirement of consistency with purpose. This directs attention to the intention, objectively ascertained, of the enacting Parliament. The task imposed by s 32(1) is one of interpretation and not of legislation. It does not admit of "remedial interpretation" of the type undertaken by the Hong Kong Court of Final Appeal as a means of avoiding invalidity[968].

     [967]Thomas v Mowbray (2007) 233 CLR 307 at 331-334 [20]-[28] per Gleeson CJ, 344-348 [71]-[82], 350-351 [88]-[92] per Gummow and Crennan JJ, 507 [596] per Callinan J; [2007] HCA 33; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 at 553-554 [14] per Gummow J, 597 [168]-[169] per Crennan and Kiefel JJ; [2008] HCA 2.

     [968]HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at 604-608 [57]-[66].

685. The appellant's and the Commission's submissions assume that an evidential burden respecting disproof of the fact of possession in the prosecution of drugs offences is a demonstrably justified limitation on the right to be presumed innocent.  That assumption was not called into question and may be accepted for present purposes.  The difficulty in acceding to the appellant's and the Commission's rights compatible interpretation of s 5 is its plain language and its purpose.  The Court of Appeal was right to conclude that it is not possible, applying the interpretive rule of s 32(1), to interpret s 5 as placing a mere evidential burden upon an accused[969]. 

     [969]R v Momcilovic (2010) 25 VR 436 at 469 [119].

     Possession for sale

686. On the appeal in this Court, the appellant relied on an alternative submission respecting the construction of s 5.  She contended that the provision is not engaged in a prosecution for the offence of trafficking in a drug of dependence under s 71AC.  Section 71AC is in Pt V, which contains the offences of possession of, and trafficking in, drugs of dependence.  Section 71AC provides:

     "Trafficking in a drug of dependence

     A person who, without being authorized by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum)." 

687. Section 70 defines a number of words and expressions for the purposes of the offences contained in Pt V. Section 70(1) contains an inclusive definition of traffick:

     "traffick in relation to a drug of dependence includes –

     (a)prepare a drug of dependence for trafficking;

     (b)      manufacture a drug of dependence; or

     (c)sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence".

688. The prosecution of the appellant engaged s 73(2), which should also be noted:

     "Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence."

689. The appellant's deemed possession of a quantity of methylamphetamine exceeding the traffickable quantity[970] was relied upon at the trial as prima facie evidence of trafficking by way of her "possession for sale" of the drug. 

     [970]At the material time, the traffickable quantity for methylamphetamine was six grams: Drugs Act, Pt 3 of Sched 11.

690. Section 5 is set out earlier in these reasons. It is in Pt I of the Drugs Act, which deals with introductory and transitional matters. In the appellant's submission, s 5 does not speak to the composite expression "possession for sale" in the definition of trafficking.

691. Section 5 does not define possession; it deems a person to be in possession of a substance when the conditions for its engagement are met and it does so for "the purposes of [the] Act".  A prosecution for an offence of trafficking based on the accused's possession of a quantity of a drug in excess of the traffickable quantity requires proof of the fact of possession.  At the appellant's trial, s 5 was engaged once the prosecution established her occupation of the premises in which the methylamphetamine was located to prove the fact of possession.  

692. Nothing connected the appellant to the drugs save the fact of her occupancy of the apartment in which they were found.  While occupancy of premises in which illicit drugs are present may support an inference of possession, in this case there was no basis for excluding that the drugs were possessed by Velimir Markovski and no evidence to support an inference that the appellant was in joint possession with him.  It was only by proof of the conditions for the engagement of s 5 that the prosecution established a prima facie case against the appellant.  It is not possible, consistently with the purpose of the provision, to interpret s 5 as not engaged in a prosecution for the offence of trafficking contrary to s 71AC.

     Proof of the mental element of the trafficking offence

693. The sufficiency of the trial judge's directions was attacked on five sub-grounds before the Court of Appeal[971].  In this Court, the challenge is confined to two of those complaints.  Together they amount to the contention, summarised by the Court of Appeal, that the trial judge ought to have directed the jury that[972]:

     "[T]he applicant could not have the drug in her possession for sale, and therefore could not be guilty of trafficking, unless the prosecution proved beyond reasonable doubt that she knew of the presence of the drug."

     [971]"The learned judge erred in his directions on possession and trafficking; and in particular he erred:

     (a)in directing that, if the applicant failed to prove lack of knowledge of the drug on the balance of probabilities, 'then you must find that [she] was in possession of the drug';

     (b)in failing to direct that, even if the applicant failed to prove that she did not know of the presence of the drug, she would not be in possession if she proved that she did not intend to possess the drug to the exclusion of others not acting in concert with her;

     (c)in failing to direct on the meaning of possession at common law;

     (d)in failing to direct that the applicant could not have the drug in her possession for sale, and therefore could not be guilty of trafficking, unless the prosecution proved beyond reasonable doubt that she knew of the presence of the drug;

     (e)in failing to direct adequately on the 'prima facie' provision in s 73(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic); in directing in a manner that suggested that there was uncontradicted evidence of possession of six grams of the drug; in failing to instruct that there was evidence to the contrary; and in failing to identify that evidence."

     [972]R v Momcilovic (2010) 25 VR 436 at 480 [164].

694. The Court of Appeal dealt with this complaint shortly, saying that the identical submission had been made and rejected in R v Georgiou[973].  The Court of Appeal observed that the defence case had not been conducted on the footing that, should the appellant fail to prove that she was not in possession of the drugs, the jury might find that she nevertheless lacked the intent to possess the drugs for sale[974].

     [973]R v Momcilovic (2010) 25 VR 436 at 481 [165], citing R v Georgiou [2009] VSCA 57 at [48].

     [974]R v Momcilovic (2010) 25 VR 436 at 481 [166].

695. On the appeal in this Court it was not in issue that the Court of Appeal misconstrued Georgiou.  That case held that, in a prosecution for trafficking based upon the engagement of ss 5 and 73(2), it is necessary for the Crown to prove the intention to possess the drug for sale[975].  The Court of Appeal in Georgiou approved Callaway JA's observations in R v Tragear[976]:

     "[E]ven if the Crown successfully invokes s 5 in relation to counts 1 [trafficking] and 2 [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 [trafficking]. Otherwise he would lack the requisite mens rea, of which s 73(2) is only prima facie evidence."

     [975]R v Georgiou [2009] VSCA 57 at [6], [51].

     [976]R v Georgiou [2009] VSCA 57 at [48], citing R v Tragear (2003) 9 VR 107 at 117 [43].

696. The Director of Public Prosecutions maintained that the Court of Appeal's rejection of the appellant's complaint accords with the decision in R v Clarke and Johnstone[977].  He submitted that Clarke and Johnstone is an authority of long standing to which the courts in Tragear and Georgiou did not refer.  The prosecution case against Johnstone at trial was put on alternative bases:  he was the occupier of the farm on which cannabis was located or he was aiding and abetting the owner of the farm in trafficking in the plant.  The jury were directed of the necessity that the prosecution prove beyond reasonable doubt that Johnstone was aware of the existence of the cannabis.  The Full Court commented that the direction was too favourable respecting the deemed possession case but necessary in the aiding and abetting case[978].  The issue here raised was not live in Clarke and Johnstone.  The Full Court in Clarke and Johnstone correctly noted the differing operation of s 5 and s 73(2), observing that the latter does not deem any fact to exist nor reverse an onus of proof[979].  A prima facie case against an accused admits of a conviction in the absence of further evidence but it does not require that result.  Possession of a quantity of a drug exceeding the traffickable quantity is prima facie evidence of trafficking because such a quantity is taken to support the inference that the drug is possessed for sale.  The offence of trafficking requires proof of the intention to traffick in the drug.  A prosecution for trafficking that engages ss 5 and 73(2) to establish trafficking by way of possession of a quantity of a drug for sale requires proof that the accused had that intention. 

     [977][1986] VR 643.

     [978]R v Clarke and Johnstone [1986] VR 643 at 660.

     [979]R v Clarke and Johnstone [1986] VR 643 at 659.

     The trial judge's directions to the jury

697. The trial was conducted on the footing that it was for the appellant to satisfy the jury on the balance of probabilities that she did not know of the existence of the drugs[980].  The Court of Appeal considered this to be a correct analysis and rejected the submission that it was necessary for the jury to be instructed that the appellant could not have been in possession of the drugs for sale unless the prosecution proved that she knew of the existence of them[981].  Nonetheless, the Director of Public Prosecutions submits that an analysis of the directions reveals that the jury were informed of the need for the prosecution to prove that the appellant intentionally trafficked in the drugs.  The submission should be rejected. 

     [980]R v Momcilovic (2010) 25 VR 436 at 479-480 [161]-[162].

     [981]R v Momcilovic (2010) 25 VR 436 at 480-481 [164]-[166].

698. In the opening section of the charge, the trial judge directed the jury that:

     "In this case the Crown must prove all the elements of the offence, which I will come back to in a moment, beyond reasonable doubt, however, as both counsel have said, the accused must satisfy you that she did not know of the existence of the drugs on the balance of probability."

     The trial judge went on to explain that, in the event the appellant failed to prove that she was not in possession of the drug, it would be necessary to consider the second element of the offence, which required the prosecution to prove that she intentionally trafficked in the drug.  The directions respecting this element included that the prosecution must prove that the appellant "deliberately possessed for sale a prohibited drug".  In the concluding part of the charge his Honour said this:

     "You must look at all the evidence, including the quantity of drugs possessed by Vera Momcilovic and consider whether you are satisfied beyond reasonable doubt that she intentionally had, in her possession for sale, a prohibited drug. 

     If you don't accept, on the balance of probabilities that she didn't know about the drugs, then you must consider this second element, whether she possessed them for sale and what the law says, as I have just said to you, is if you possess more than six grams of methylamphetamine in a sufficient – for you to find that she was possessing it for sale, for trafficking."  (emphasis added) 

699. The directions on proof of intention focussed on whether in the circumstances, including the quantity of the drug possessed by the appellant, the inference to be drawn was that her intention was to possess the drug for sale.  The quantity of the drug made that inference well nigh irresistible.  The central issue at the trial was the appellant's knowledge (or lack of knowledge) of the drug.  On this issue the only direction was that it was upon the appellant to prove her lack of knowledge.  What the directions concerning the intention to possess the drug for sale failed to tell the jury was that, if they considered it probable that the appellant knew of the drugs but they entertained a doubt about that matter, it was their duty to acquit.

700. There was evidence that the appellant was a person of good character and other evidence that was capable of raising the reasonable possibility that she was not aware of the existence of the drugs.  This included her evidence of working long hours and of rarely cooking meals at home.  The failure to direct the jury that the appellant could not be convicted of trafficking in the drug unless the prosecution proved her knowledge of its existence, in the circumstances of the trial, was productive of a substantial miscarriage of justice.

701. The appellant submitted that this Court should enter a verdict of acquittal.  She advanced three reasons in support of the making of that order.  First, she will by now have served the term of her sentence[982].  Secondly, she submitted that it is unlikely that she would be convicted at a trial at which the prosecution is required to prove her knowledge of the drug beyond reasonable doubt.  Thirdly, it is more than five years since the events giving rise to the charge.  It is not suggested that any delay associated with the proceedings has been brought about by the prosecution and nothing in the conduct of the prosecution at the trial militates against an order for a new trial.  The charge involves an allegation of serious criminal conduct.  The appropriate order is for a new trial.    

     [982]The Court of Appeal allowed the appellant's appeal against the severity of sentence.  The appellant was resentenced to a term of 18 months' imprisonment.  All save the 52 days that the appellant had served was suspended for 16 months.

702. I agree with the orders proposed by French CJ.