RJE v Secretary to the Department of Justice  VSCA 131 (18 December 2008)
In this case, Nettle J of the Victorian Court of Appeal considered the scope and operation of s 32(1) of the Victorian Charter of Human Rights, which provides that ‘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’.
Pursuant to s 32(1), Nettle J determined that the term ‘likely’ in s 11 of the Serious Sex Offenders Monitoring Act 2005 (Vic), which provides that a court may make an ‘extended supervision order’ in respect of an offender if satisfied to a high degree of probability that the offender is likely to re-offend, should be interpreted to mean ‘at least more likely than not’.
The other judges, Maxwell P and Weinberg J, did not consider it necessary to decide any issue under the Charter. In their view, the meaning of the word ‘likely’ in s 11 of the Monitoring Act could be resolved by reference to ordinary principles of statutory interpretation.
The appellant, RJE, was subject to an extended supervision order under the Serious Sex Offenders Monitoring Act. As discussed above, an ESO may be made if a court is ‘satisfied to a high degree of probability’ that the offender is ‘likely to re-offend’. Previous authority from the Court of Appeal (TSL v Secretary of the Department of Justice (2006) 14 VR 109) had interpreted ‘likely’ as capable of meaning ‘less likely than not’.
RJE appealed against the imposition of an ESO. Uncontroverted expert evidence before the Court of Appeal indicated that RJE did not present a high-risk of re-offending; his risk of re-offending within 10 years was well under 40 per cent.
Maxwell P and Weinberg J
The majority of the Court, Maxwell P and Weinberg J, considered that TSL should be overturned. In their view, the term ‘likely’ in s 11 means ‘more likely than not’ and does not admit of a less than 50 per cent chance that the person will re-offend. In support of this they stated (at ) that:
On ordinary principles of construction, we should favour that interpretation which produces the least infringement of common law rights – in this case, the right to be at liberty: Balog v Independent Commission Against Corruption & Ors (1990) 169 CLR 625, 635-6.
Having regard to this, Maxwell P and Weinberg did not consider it necessary to decide any issue under s 32(1) of the Charter (at paras 54-5).
In a separate but concurring decision, Nettle J also concluded that the term ‘likely’ should be interpreted to mean ‘at least more likely than not’ (at [119[). In so doing, his Honour relied on the Charter, stating (at ) that
perforce of s 32 of the Charter, it is necessary to construe s 11 of the Monitoring Act (so far as it is possible to do so consistently with the purpose of the section) in a way that is ‘compatible with human rights’.
In particular, having regard to the operation of ESOs, his Honour considered that ‘one is compelled to construe s 11… in a way that subjects the appellant’s right to freedom of movement, privacy and liberty only to such reasonable limits as can be demonstrably justified in a free and democratic society’. His Honour concluded in this regard that:
The making of an extended supervision order…so restricts an offender’s right to move freely within Victoria and to enter and leave it (s 12 of the Charter), and his right to privacy (s 12), if not his right to liberty (s 21), that it is not capable of demonstrable justification in the relevant sense unless the risk of the offender committing a relevant offence is at least more likely than not (at ).
Justice Nettle then went on to discuss the intended scope of s 32 of the Charter, particularly by reference to jurisprudence under the analogous s 3 of the UK Human Rights Act 1998. His Honour cited with approval the views of Lord Woolf in Poplar Housing and Regeneration Community Association Ltd v Donoghue  QB 48, in which his Lordship stated, inter alia, that:
- It is ‘difficult to overestimate the importance of s 3. It applies to legislation passed both before and after the Human Rights Act 1998 came into force. Subject to the section not requiring the court to go beyond that which is possible, it is mandatory in its terms’.
- Section 3 will not operate unless, on its ordinary construction, legislation would breach human rights.
- Section 3 will operate to modify the meaning of legislation only to the extent necessary to achieve compatibility with human rights.
- Section 3 does not entitle the court to legislate; its task is still one of interpretation.
Justice Nettle noted that this approach had also been followed by Mason NPJ in relation to the Hong Kong Bill of Rights in HKSAR v Wai and Man (2006, Final Court of Appeal of Hong Kong).
In the present case, Nettle J considered that the existing meaning given to ‘likely’ breached human rights and that, consistently with Lord Woolf’s view on s 3 of the Human Rights Act, s 32 of the Charter must therefore by deployed. He further stated that ‘to construe “likely” in s 11 as meaning “at least more likely than not” is within the permissible ambit of interpretation, well short of the forbidden territory of legislation’ (at ).
The substantial and detailed analysis of s 32 given by Nettle J is welcome. In the Centre’s view, however, the approach to human rights construction adopted by Elias CJ in the Supreme Court of New Zealand in R v Hansen  3 NZLR 1 is to be preferred to that of Lord Woolf in the England and Wales Court of Appeal.
Consistently with the Elias CJ approach, the Centre considers that the better view of s 32(1) is that interpretation of a statutory provision compatibly with human rights should be considered in the first instance, rather than only after some ambiguity or prima facie incompatibility has been identified. The Charter seeks to ‘establish a framework for the protection and promotion of human rights in Victoria’. The purpose of s 32 is to establish a requirement that statutory provisions be interpreted in a way that is compatible with human rights. Consistently with these purposes, the Charter-compatible interpretation should now be regarded as ‘ordinary’ and ‘normal’.
The decision is available at www.austlii.edu.au/au/cases/vic/VSCA/2008/265.html.
Philip Lynch is Director of the Human Rights Law Resource Centre