WBM v Chief Commissioner of Police  VSC 219 (28 May 2010)
This case raises the rights to privacy (s 13) and freedom from retrospective punishment (s 27), interpretation of legislation (s 32) and declarations of inconsistency (s 36) under the Charter.
In August 2007, the Chief Commissioner advised the plaintiff, WBM, that his name had been placed on the Victorian Sex Offenders Registry under the Sex Offenders Registration Act 2004 (Vic) (‘Act’). WBM applied to the Supreme Court for a declaration that he is not a registrable offender under the Act and an order to the Chief Commissioner to remove his name. Alternatively, WBM sought a declaration of inconsistent interpretation in respect of the relevant sections of the Act under s 36(2) of the Charter.
WBM argued, among other things, that the registration was an arbitrary interference with his privacy and constituted a retrospective penalty.
The Court’s findings in relation to the Charter may be questioned on three issues: first, the Court appeared to equate the making of a declaration of inconsistency under s 36 with judicial policy making; second, the Court failed to properly apply s 32 to consider international jurisprudence; and third, the Court defined ‘arbitrary’ in an overly narrow fashion in relation to the right to privacy and failed to follow internationally settled authority on s 13.
In April 2003, WBM pleaded guilty to property and possession and production of child pornography offences and was given an aggregate 12-month imprisonment sentence, suspended for two years. He did not breach that order and it ceased on 21 April 2005.
The Act commenced on 1 October 2004, being after WBM was sentenced but before his suspended sentence ended. The Act defines a registrable offender to be a person who immediately before 1 October 2004 is ‘serving a sentence of imprisonment (in this case, for possession or making child pornography) that was wholly or partly suspended and who is in the community in accordance with that sentence’.
WBM argued that he did not fall within this definition; that he was not serving a sentence before 1 October 2004 and that the Act did not apply to an aggregate sentence imposed for offences unrelated to the Act. The Court did not accept these submissions and found WBM to be a registrable offender within the meaning of the Act: .
In the alternative, WBM had argued that if he was a registrable offender, the Court should make be a declaration of inconsistent interpretation: s 36(2) of the Charter.
Application of the Charter
WBM argued that the definition of ‘existing controlled registrable offender’ under the Act is inconsistent with the right not to be subjected to unlawful or arbitrary interference with privacy (s 13) and not to be subjected to a retrospective penalty (s 27): .
Making a declaration of inconsistency – s 36
The Court commenced its analysis by correctly noting that a declaration of inconsistency would not immediately affect the operation or application of the Act in respect of WBM or ‘vindicate or protect’ his rights:  and s 36(5) of the Charter. While legally correct, this fails to recognise the important symbolic significance a declaration of inconsistency can have. It is a judicial statement that legislation has or may breach a relevant human right. Where the facts of this case involve the humiliation involved in being registered and the sense of injustice at double punishment, a declaration does have a role to play in protecting and promoting human rights trough vindication.
The Court continued by outlining the principles of separation of powers and the judiciary’s role to interpret and apply the laws as enacted by Parliament rather than be (or be seen to be) involved in legislative activity or policy making: . This discussion gave context to the Court’s obvious reluctance to invoke s 36 of the Charter. With all due respect, the Court erred in perceiving the making of a declaration to amount to ‘judicial policy making’ . While the Charter does not ‘license’ or justify such policy making, Parliament protected separation of powers by empowering the courts to make a declaration of inconsistency without indicating how the inconsistency is to be resolved, a function preserved for Parliament in responding to the declaration. The mere making of a declaration is not to be seen as judicial policy-making, rather the exercise of the judicial function in applying s 36 of the Charter.
Privacy – s 13
WBM argued that the way in which the Act applied was arbitrary, submitting in particular that the reporting conditions of the Act, together with its retrospective application to WMB, constituted an ‘arbitrary interference’ with WMB’s right to privacy. He submitted that ‘in order to be an arbitrary interference under s 13 of the Charter, the interference must contain elements of inappropriateness, injustice and lack of predictability’: see also Nolan v MBF Investments Pty Ltd  VSC 244 and Bell J in Kracke v Mental Health Review Board  VCAT 646.
The Court distinguished Kracke and held that the common usage of arbitrary is consistent with its Oxford English Dictionary’s definition, being an action not based on any identifiable criterion but stemming from caprice or whim. The Court declined to follow relevant international jurisprudence on s 13, in particular from the UN Human Rights Committee. It stated that the Human Rights Committee’s General Comment 16 did not accord with the plain meaning of arbitrary and as a non-judicial body comprising members from countries with different systems of democracy to Australia, its views were to be treated with care. Further, the Court stated that if the right to privacy required an interference to be reasonable in the circumstances and proportionate, this would involve unwarranted judicial policy-making.
This approach side-stepped the direction in Charter s 32(1) and 32(2) to explore all possible interpretations of the provision in question, and adopt that interpretation which least infringes Charter rights (R v Momcilovic  VSCA 50, ) and to consider international jurisprudence. Section 32 is relevant to the interpretation of the Charter itself, including s 13. The Court’s deference to the dictionary definition is inconsistent with s 32(2), international jurisprudence and the Charter Explanatory Memorandum’s recognition that s 13 is based on the protection of the right to privacy in art 17 of the ICCPR. Article 17 of the ICCPR has a well-settled definition of arbitrary set out in General Comment 16 that incorporates a proportionality analysis. Parliament’s adoption in s 13 of the language of art 17 of the ICCPR indicates its intention that the meaning accorded to art 17 be given to s 13.
The Court’s emphasis on separation of powers and considering jurisprudence only from countries with similar systems of government resulted in a narrow interpretation of s 13, a failure to grapple with and apply s 32(2) and a reluctance to invoke s 36.
The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/219.html.
Phoebe Knowles is a barrister at the Victorian Bar