DPP v Smith: A Fresh Appetite To Consider Section 32(1) Of The Charter?
7.02.2024
The High Court handed down Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (Momcilovic) well over a decade now. That means it has been more than a decade since the High Court last grappled with the difficult questions of when and how legislation should be interpreted in a way that is compatible with human rights. The High Court recently returned to these vexed questions in the case of DPP v Smith [2024] HCA 32; (2024) 98 ALJR 1163 (Smith).
The issue in the case was whether a broad statutory discretion authorised a trial judge to meet privately with the complainant of child sex offences in the absence of the accused before she gave her evidence. That begged the question of whether the broad statutory discretion needed to be read down to ensure that it was compatible with human rights, including the right to a fair hearing, as required by the interpretive clause in s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).
The majority—comprising Gageler CJ, Gleeson, Jagot and Beech-Jones JJ—ultimately ducked the question, but in a way that tells us a lot about their approach to the interpretive clause. In his dissenting judgment, Edelman J tells us even more. One swallow a spring does not make, but Smith could be the first sign that the long winter of avoiding the interpretive clause may be coming to an end.
The interpretive clause
Section 32(1) of the Charter provides:
‘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.’
A similar interpretive command is set out in s 30 of the Human Rights Act 2004 (ACT) and s 48(1) of the Human Rights Act 2019 (Qld).
One might think s 32(1) of the Charter would come up in litigation all the time. On its face, it applies to ‘all’ statutory provisions and almost every statutory provision has some impact on at least one human right. But s 32(1) is rarely raised by practitioners and frequently sidestepped by courts: eg, ‘R’ v IBAC [2016] HCA 8; (2016) 256 CLR 459, [71]-[72] (Gageler J); Minogue v Victoria [2018] HCA 27; (2018) 264 CLR 252, [50]-[56] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ), [70]-[80] (Gageler J).
Practitioners and judges have avoided engaging with s 32(1) ever since the High Court handed down judgment in Momcilovic in 2011: Chen, 2020, 187-8. Momcilovic concerned a reverse onus provision (which imposed a legal burden of proof on the accused) for drug offences and whether s 32(1) of the Charter allowed a different reading to ensure compatibility with the right to be presumed innocent. The High Court split on several issues in a confusing kaleidoscope of different combinations of judges, including on the issue of whether s 32(1) called for a reading that did not limit human rights at all, or merely a reading that represented a justified limit on human rights in accordance with the test of proportionality set out in s 7(2) of the Charter.
However, six of the seven judges agreed that s 32(1) only allowed a different reading if it was unclear what Parliament meant. Otherwise, if s 32(1) allowed courts to depart from Parliament’s intended meaning to fix up human rights breaches, then s 32(1) would allow courts to go beyond interpreting legislation to redrafting it. That might be fine in the United Kingdom, where it is said the equivalent interpretive clause ‘can do considerable violence to the language’ and even ‘change the meaning of the enacted legislation, so as to make it Convention-compliant’: Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557, [32] (Lord Nicholls), [67] (Lord Millett). But Australia’s constitutional system is different. As the High Court warned in Momcilovic, delegating a legislative function like that to courts in Australia would probably be unconstitutional. Ever since, the risk of straying into constitutionally impermissible territory has thrown water on any robust engagement with s 32(1) of the Charter. That is, perhaps, until the recent case of Smith.
Smith
David Smith faced trial for child sex offences in the County Court of Victoria. As the complainant was a child, her evidence was to be pre-recorded at a special hearing. An ‘intermediary’ was appointed to help guide the complainant through the process of giving evidence. At a ‘ground rules’ hearing, the intermediary said that a meeting with the trial judge and counsel beforehand would help relieve the complainant’s anxiety about giving evidence: Smith [2024] HCA 32, [75].
In light of that recommendation, the trial judge made directions to allow a private meeting to ‘say hello’, in the presence of counsel for both the prosecution and the accused, but in the absence of the accused himself. That direction was said to have been made pursuant to s 389E(1) of the Criminal Procedure Act 2009 (Vic), which provides:
‘At a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding.’
The meeting went ahead, the complainant gave her evidence, and the matter was progressing to trial when the Victorian Court of Appeal threw a spanner in the works. In another case, Alec (a pseudonym) v The King [2023] VSCA 208; (2023) 72 VR 161 (Alec), the Court of Appeal allowed an appeal on the basis that the trial judge had held a private meeting with the complainant in very similar circumstances to the private meeting in Smith, save that counsel for the accused was not present either. The doubts thrown up by Alec led the trial judge in Smith to reserve four questions of law for the Court of Appeal, effectively asking whether the presence of counsel made any difference. The Court of Appeal followed its earlier decision in Alec, holding that the private meeting represented a fundamental irregularity that tainted the evidence given by the complainant, such that the evidence would need to be taken again before a new judge: DPP v Smith [2023] VSCA 293 (Smith (CA)), [10] (Emerton P), [58] (Priest JA, Macaulay JA agreeing). The Court of Appeal mentioned the Charter, but only to say that the common law principle of open justice found reflection in the right to a fair hearing in s 24 of the Charter: Smith (CA), [6] (Emerton P), [32] (Priest JA, Macaulay JA agreeing)
The Director of Public Prosecutions appealed to the High Court. The majority—comprising Gageler CJ, Gleeson, Jagot and Beech-Jones JJ—joined in a joint judgment. Their Honours found that s 389E(1) of the Criminal Procedure Act did authorise the private meeting with the complainant and that the meeting did not amount to a fundamental irregularity in the trial process. They said that s 32(1) of the Charter did not result in a different reading because that reading did not limit the right to a fair hearing. In fact, the private meeting did not involve a ‘hearing’ at all: Smith, [59], [68]. In dissent, Edelman J held that s 389E(1) did not authorise the trial judge to order a private meeting with the complainant: Smith, [162]. He said that conclusion was powerfully reinforced by s 32(1) of the Charter: Smith, [104].
What immediately sets the High Court judgment in Smith apart is the space taken up by the consideration given to the Charter. Whereas the Court of Appeal had mentioned the Charter only in passing, in the High Court, both the majority and dissenting judgments devoted several pages to considering what impact, if any, the Charter had on the proper construction of s 389E(1). Both judgments tell us a lot about the current Court’s approach to s 32(1) of the Charter.
The majority
The majority accepted that s 389E(1) of the Criminal Procedure Act—‘in common with all provisions of Victorian legislation’—is subject to s 32(1) of the Charter. It is to be read in a way that is compatible with human rights, so far as it is possible to do so consistently with its purpose: Smith, [57]. The fascinating thing about that is that s 389E(1) is a broad statutory discretion.
Several lower court decisions have suggested that the interpretive clause has little if anything to say about broad statutory discretions. According to those cases, the real issue is about how broad discretions should be applied, not what they mean: Johnston v Carroll [2024] QSC 2, [198]-[199] (Martin SJA); Attorney-General (Qld) v Grant [No 2] [2022] QSC 252; (2022) 12 QR 357, [66] (Applegarth J). Moreover, if s 32(1) requires broad discretions to be read down so as only to authorise rights-compatible exercises of power, then s 32(1) will leave little work for s 38 of the Charter to do. Section 38 imposes an obligation on public authorities to exercise their powers (including powers under broad statutory discretions) in a way that is compatible with human rights. It would also disturb the carefully worked out exceptions to the definition of a ‘public authority’. For example, judges are not public authorities, and therefore not required to comply with s 38, when exercising a judicial function. That carveout would be thrown out the window if judges are nonetheless required to exercise statutory discretions in a way that is compatible with human rights by force of s 32(1) of the Charter: Nigro v Secretary, Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [185] (Redlich, Osborn and Priest JJA). See also Chen, 2016, 612-6; Nagorcka, 2022, 93-4.
None of that seemed to worry the majority in Smith. Their Honours clearly thought that s 32(1) of the Charter could be relevant to the application of a broad statutory discretion. That can be seen in the way that their Honours focused on the particular exercise of power and whether that exercise of power was authorised by s 389E(1) of the Criminal Procedure Act.
The majority’s willingness to apply s 32(1) of the Charter to a broad statutory discretion was, however, offset by their extremely narrow approach to the relevant human right, the right to a fair hearing. That right is enshrined in s 24(1) of the Charter in these words:
‘A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.’
The requirement that a hearing be a ‘public’ one, embraces the open justice principle: Smith, [61]. But, according to the majority, the private meeting between the trial judge and the complainant was not a ‘hearing’. A ‘hearing’ involves the parties appearing before the court to be heard about a proposed exercise of judicial power. Here, it was not proposed that the judge would exercise any judicial power at the private meeting, and in fact, she did not: Smith, [59], [66]-[67]. Accordingly, the right to a fair trial in s 24 was not limited, and there was ‘no basis to construe s 389E(1) more narrowly than its language permits by reason of (non-existent) incompatibility with s 24(1) of the Charter’: Smith, [68].
There are some holes in that reasoning. First of all, the majority offers no explanation as to why the right to a fair hearing in s 24 should be seen as being concerned solely with the exercise of judicial power. Section 24 of the Charter is based on article 14 of the International Covenant on Civil and Political Rights. Internationally, the right to a fair hearing is ‘not confined to proceedings of a judicial character’; it ‘can cover civil proceedings which are of an administrative character’, such as administrative proceedings before boards and tribunals: Re Kracke and Mental Health Review Board [2009] VCAT 646; (2009) 29 VAR 1, [418] (Bell J). Of course, international authorities need to read with care taking into account differences in constitutional contexts: Momcilovic [2011] HCA 34; (2011) 245 CLR 1, [19] (French CJ). But, in Australia at the State level, there is no strict separation of powers. Our constitutional context does not support reading in separation of powers concepts into the protected human rights.
Even if s 24(1) of the Charter were only concerned with the exercise of judicial power, there are all kinds of things done outside a courtroom that can have an impact on the fairness of the exercise of judicial power inside the courtroom. For example, police might threaten a fair trial by feeding information to the press: R v Coghill [1995] 3 NZLR 651, 661. It could hardly matter that the police were not doing that inside a courtroom. As Edelman J pointed out, the real question in Smith was whether the private meeting outside the courtroom might have undermined the fairness of the proceeding that would later play out inside the courtroom.
Moreover, the majority’s approach represents a marked shift in how to determine the scope of human rights. Until now, the orthodox view had always been that ‘rights should be construed in the broadest possible way’ by reference to their purpose and underlying values: Re Application under the Major Crimes (Investigative Powers) Act 2004 [2009] VSC 381; (2009) 24 VR 415, [80] (Warren CJ). In Smith, the majority instead seem to have construed the right in the narrowest possible way. There may be a natural tendency to read human rights narrowly because it can allow the court to sidestep the complexity of applying s 32(1) of the Charter. If a human right is not engaged, there is no need to read a statutory provision differently to ensure compatibility with that right. Whether or not the majority felt that pull towards a narrow reading, that was the result. Because the right to a fair hearing was not limited, the majority did not need to resolve the ‘general operation of the interpretive principle in s 32(1) of the Charter’: at [57].
The dissent
For Edelman J, the private meeting was not authorised by s 389E of the Criminal Procedure Act and that conclusion was ‘powerfully reinforced’ by the Charter: Smith, [104]. While his Honour referred to Momcilovic, it was not his starting point. Instead, his Honour considered the interpretive clause in s 32(1) of the Charter afresh from first principles.
Whenever the interpretive clause is being applied, Edelman J considered there is a tension between, on the one hand, a specific provision that appears on its face to breach a human right and, on the other hand, a general provision (s 32(1)) that says to interpret other provisions in a way that does not breach human rights if that is possible. Applying s 32(1) involves making a necessary choice about which of the conflicting provisions is to give way to the other: Smith, [138]-[139].
For Edelman J, the technique demanded is not unlike s 15A of the Acts Interpretation Act 1901 (Cth) (AIA) (and the State equivalents): Smith, [132]. That too involves reconciling a tension between a specific provision that appears on its face to breach the Constitution and a general provision that says to interpret other provisions in a way that does not breach the Constitution if that is possible. Both s 15A of the AIA and s 32(1) of the Charter provide for statutory provisions to be construed in a way that is consistent with their purpose and also, as far as possible, in a way that is consistent with a desired result in other, more general, legislation: Smith, [132]. See also Chen, 2020, 205-6.
There are some problems with the analogy. First, s 15A is about avoiding invalidity, whereas s 32(1) is not. If legislation cannot be read compatibility with human rights, it may be subject to a declaration of inconsistency by the Victorian Supreme Court under s 36 of the Charter, but the legislation would still remain valid. Second, if the Victorian Parliament had intended to replicate s 15A, it could easily have drafted s 32(1) more like s 15A: Re Islam [2010] ACTSC 147; (2010) 175 ACTR 30, [53], [123] (Penfold J). The biggest problem is that none of the judges in Momcilovic shared Edelman J’s view that s 32(1) is just like s 15A.
In any event, the analogy with s 15A allowed Edelman J to bring in a ready-made tool kit of techniques. According to his Honour, s 32(1) of the Charter can be applied by ‘reading down’, ‘severance’ or ‘partial disapplication’ of the specific provision: Smith, [132]. Partial disapplication is particularly relevant when it comes to broad statutory discretions like s 389E(1) and involves reading the provision as though it did not apply in certain circumstances rather than reading the actual words differently.
While these techniques may come close to the ‘remedial’ approach from Ghaidan v Godin-Mendoza in the United Kingdom, they do not involve the legislative task of rewriting legislation: Smith, [131]. No one would accuse judges of rewriting legislation when they comply with the legislative command in s 15A to read down a statutory provision to save its validity. For Edelman J, the same must be true of s 32(1) of the Charter.
There is a limit to how far the courts can go with reading down, severance or disapplication. None of these remedial techniques can be applied if it would give a statutory provision a meaning that would be contrary to its evident purpose: Smith, [134]. Edelman J suggested other ways that courts might police the boundary between interpreting and legislating. They might decline to apply s 32(1) where Parliament has already acknowledged that the provision is incompatible with human rights (such as by way of a statement of incompatibility), or where the resulting interpretation would ‘go against the grain of the legislation’ (to borrow an idiom from Ghaidan v Godin-Mendoza): Smith, [140], [143].
In this case, the question was whether s 389E(1) needed to be ‘partially disapplied’ to exclude directions for a private meeting in order to ensure a reading that was compatible with the right to a fair hearing. According to Edelman J, unless s 389E(1) was partially disapplied, it would clearly engage the right to a fair hearing. An ‘unrecorded, private meeting between a judge and a witness, which excludes an accused, has the potential to compromise the independence, impartiality, fairness or public nature of a later hearing’: Smith, [161]. The semantic question of whether the private meeting was itself a ‘hearing’ was beside the point. The right to a fair hearing ‘is not so cabined, cribbed, confined and bound-in that the fairness and public nature of a hearing depends only upon events that occur with the hearing itself’: Smith, [155].
His Honour invoked Franz Kafka and his parable of a gatekeeper who guards access to the Law as a physical place. ‘Few things breed more public contempt for a system of criminal justice’, Edelman J said, ‘than when the gatekeeper intentionally closes a gate leading into the Law’: Smith, [100]. By physically excluding the accused from the private meeting, the trial judge had closed a gate leading into the law as a physical place. Section 398E(1) needed to be partially disapplied to avoid that result.
What about proportionality?
One loose thread from Smith is the role of proportionality, if any, when interpreting legislation compatibly with human rights. Does s 32(1) of the Charter seek to avoid interpretations that limit human rights to any extent, or only interpretations that impose disproportionate limits on human rights?
Section 7(2) of the Charter recognises that human rights are not absolute and may be subject to reasonable limits that can be justified in a free and democratic society. Broadly, a limit on a human right is justified under s 7(2) if it is proportionate to a legitimate aim; that is, if it pursues a legitimate aim in the least restrictive way and strikes a fair balance between the legitimate aim and the harm to the human right. The interaction between the proportionality test in s 7(2) and the interpretive clause in s 32(1) of the Charter was a large issue in Momcilovic. The High Court split on that question with no clear majority emerging: Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1, [35] (French CJ), [574]-[575] (Crennan and Kiefel JJ). Cf [168] (Gummow J, Hayne J agreeing), [683]-[684] (Bell J). See also ‘R’ v IBAC [2016] HCA 8; (2016) 256 CLR 459, [71] (Gageler J). When Queensland enacted its Human Rights Act, it clarified that proportionality is relevant: see s 8 of the Queensland Human Rights Act. The question remains unresolved in Victoria and the ACT.
In Smith, the defendant’s interest in a fair hearing was not the only interest at stake. As the Attorney-General said when introducing s 389E of the Criminal Procedure Act, the right to a fair hearing has to take into account the interests of people other than the accused ‘including the interests of the victim and of society generally in having a person brought to justice’: Hansard, 13 December 2017, 4356. Overseas, treating the complainant fairly is seen as an aspect of the right to a fair hearing. For example, in Canada, the Supreme Court has recognised that fairness must be viewed not only from the defendant’s point of view, but also ‘from the point of view of the community and the complainant’: R v O’Connor [1995] 4 SCR 411, [107] (L’Heureux-Dubé J). A balance needs to be struck between these competing aspects of the right to a fair hearing.
Both the majority and the dissent in Smith quoted the Attorney-General (Smith, [47] and [160]), but none of the judges engaged in that balance themselves. The majority avoided any need to do so because they found that the right to a fair hearing was not engaged.
There are indications that go either way in Edelman J’s reasons. At one point his Honour drew a parallel to the principle of legality, suggesting no role for proportionality. The greater the incursion on a human right, he said, the stronger the presumption will be that Parliament did not intend that reading: at [134]. On that approach, there is a linear relationship between the extent of the harm to the human right and the clarity with which Parliament has expressed its intention. There is no room for a third dimension of whether the incursion on the human right is justified by countervailing considerations: cf DPP v Kaba [2014] VSC 52; (2014) 44 VR 526, [196] (Bell J).
On the other hand, Edelman J said that the techniques of severance and partial disapplication should be reserved for cases where there is a ‘serious interference’ with the ‘core’ of the human right: at [138]. That could be another way of saying ‘disproportionate’ interferences with the right. Indeed, Edelman J effectively found that the private meeting was not necessary to achieve the legitimate aim of putting the complainant at ease. There were less restrictive ways of achieving that objective, such as having an informal and unrobed greeting between the judge and the complainant as an initial step in a special hearing: Smith, [146], [153]. Although his Honour did not make those observations in the context of the Charter, necessarily that means the limit on the right to a fair hearing was unnecessary and therefore disproportionate under s 7(2)(e) of the Charter. In effect, his Honour found that reading s 389E(1) as authorising private meetings would represent a disproportionate limit on the right to a fair hearing. But that is overlaying different strands of his Honour’s reasoning. It is possible his Honour saw no role for proportionality when it came to s 32(1) of the Charter.
The next case
Apart from the role of proportionality, Edelman J has laid his cards on the table about how he thinks s 32(1) of the Charter operates. The majority judges have mostly kept their cards close to their chests. They avoided the need to unpack the complexities of s 32(1) by reading the relevant right very narrowly, perhaps too narrowly. But even that tells us something about their approach. And they also appear to have shared Edelman J’s view that the interpretive clause can operate to require broad statutory discretions to be read down.
It remains to be seen whether Edelman J has convinced any of his fellow judges that s 32(1) operates just like s 15A of the AIA. In a future case, where a provision does engage a human right, the Court will need to confront that question. Edelman J’s return to first principles may not overcome the fact that none of the judges in Momcilovic shared his view. Even if Edelman J’s approach does not involve an impermissible exercise of legislative power, it comes very close to rewriting legislation. Ultimately, for the rest of the Court, Edelman J’s approach may prove too close to the ‘remedial’ approach for comfort. We will need to wait for the next case to see. But if Smith marks a new appetite to consider s 32(1), the next case may not be far away.
The views expressed in this article are my own and not those of Crown Law. Thanks to Bruce Chen and Rose Barrett for their comments on an earlier version.
Kent Blore is the Deputy Crown Counsel at Crown Law in Queensland, President of the Human Rights Law Association and a committee member of the Queensland chapter of the Australian Association of Constitutional Law. All views are his own.
Suggested citation: Kent Blore, ‘DPP v Smith: A Fresh Appetite To Consider Section 32(1) Of The Charter?’ (7 February 2025) <https://www.auspublaw.org/blog/2025/02/dpp-v-smith-a-fresh-appetite-to-consider-section-321-of-the-charter>