Court will Determine whether a Declaration of Inconsistent Interpretation should be Made During Primary Hearing

Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) & Ors (No 2) [2011] VSC 153 (19 April 2011)

The case involved an application brought by the Director of Consumer Affairs Victoria against the Hope Clinic. The application sought to prevent the continuation of representations made by the Hope Clinic as to the benefits of its therapies for sufferers of, amongst other illnesses, cancer. In particular, the plaintiff alleged that the representations contravened section 9 of the Fair Trading Act. This section provides:

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

The court received submissions from the Attorney General and PILCH (as amicus curiae) on the operation of the Charter of Rights and Responsibilities as it relates to s 9 of the Act. In particular, s 15 of the Charter which provides:

Every person has the right to hold an opinion without interference.

Ultimately, Pagone J concluded that the application of s 9 of the Act made it unnecessary to consider whether there was a conflict between s 9 of the Act and s 15 of the Charter. Accordingly, the Court did not have to apply the test in R v Momcilovic to ascertain whether there was a conflict between a statutory provision and the Charter.

The Court did review the Attorney General’s submission that any declaration of inconsistency under s 36 of the Act should be made at a subsequent hearing to the hearing where a statutory provision was deemed to be inconsistent with a human right. Section 36 provides:

Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with the section.

Justice Pagone did not accept that the proper construction of s 36 was that an inconsistency between a statutory provision and a human right should only be declared in a subsequent hearing to the hearing where the inconsistency was first identified by the Court. While His Honour remarked that the submissions relating to the Charter did not need to be heard for the purposes of the application made by the Applicant, deferring the declaration of whether a statutory provision was inconsistent with a human right under s 36 of the Charter had the potential to “unnecessarily prolong disputes and might give rise to inconsistencies in determinations arising from different proceedings involving overlapping issues and debates.”

The decision is at

Heath Paynter is on secondment to the Human Rights Law Centre from Russell Kennedy