WBM v Chief Commissioner of Police  VSCA 159 (30 July 2012)
In this decision, the Court of Appeal upheld a Supreme Court trial division decision that the Sex Offenders Registration Act 2004 (Vic) applied to a particular offender. Although the Court made the decision without reliance on the Charter, the Court expressed the view that the legislation was compatible with the right to privacy under the Victorian Charter. The decision also considered the definition of the section 13 right to privacy, the role of comparative international human rights jurisprudence under the Charter and the scope of rights protected by the common law principle of legality.
In April 2003, the appellant WBM pleaded guilty to a number of charges, including producing and possessing of child pornography. He was imprisoned for an aggregate period of 12 months, wholly suspended for two years.
In 2004, Parliament enacted the Sex Offenders Registration Act, which relevantly imposed registration and reporting obligations on people who had committed offences such as those committed by WBM and who were under “supervision” at the time the Act came into force on 1 October 2005. In a 2006 case, it was held that under “supervision” did not include someone serving a wholly suspended sentence.
In response, Parliament passed an Act to amend the definition of “existing controlled registrable offender” to apparently include those serving suspended sentences, and made this amendment retrospective to 2005.
In 2007, WBM was informed that he was a registrable sex offender.
As the decision points out, at the time of the sentence WBM was not a registrable sex offender (as the scheme didn’t exist), and neither was he by the time his sentence was completed. However, the retrospective amendments meant that, in 2007, he apparently became a registrable offender.
WBM sought a declaration that he was not a registrable offender, but that application was rejected. The first instance decision was previously summarised here. WBM appealed to the Victorian Court of Appeal.
The lead judgment was written by Chief Justice Warren, with whom Hansen JA agreed. Justice Bell wrote a concurring judgment that differs in relation to particular human rights issues.
The Chief Justice first considers the definition of registrable offender using the natural and ordinary grammatical meaning of the words. She concludes that WBM was a registrable offender on an ordinary reading of the provision.
She then considers the purpose and objects of the legislation, on the basis that “[o]ne may avoid the literal meaning of an Act if the result would have been incongruous, contrary to objects of the Act, capricious or irrational”. However, she concludes that the ordinary meaning is to be preferred in this respect as well.
Principle of legality
Next, the Chief Justice considers whether the principle of legality would affect the construction of the provision. This is the principle that the courts will assume that Parliament did not intend to restrict common law rights or freedoms unless such an intention is clearly shown by unambiguous language.
While it is clear that the intention of the legislation is to curtail some rights, the Chief Justice considers whether common law rights to which the principle of legality applies are abrogated. Unlike in statutory human rights instruments, there is some debate about the rights protected by the principle of legality.
The Chief Justice first considers whether there is a common law right to privacy, but considers that this has not been settled by a higher court. She then considers the argument that the Act abrogates the right or freedom to carry on one’s own business or trade, as the effect of registration is to prohibit child-related employment. She considers that if ever there was such a right at common law, it has been weakened by legislation such that it could not be used to cut down the natural or ordinary meaning of the legislation.
Section 32 of the Charter
The Chief Justice then considers the effect of the requirement under section 32 of the Charter to interpret provisions consistently with human rights, so far as it is possible to do so. Here, the relevant right is the prohibition of unlawful and arbitrary interference with privacy in section 13 of the Charter.
The Chief Justice holds that the Charter has no application in the present case, as it was not in force at the time the applicant became eligible to be added to the register or when he was actually added to the register.
However, she also concludes that, even had the Charter been in force, it provides no guidance as to which proposed interpretation of the section should be chosen as all of the constructions proposed by the parties were compatible with the right to privacy.
In reaching this conclusion, the Chief Justice considers the correct approach to the concept of “arbitrary” interference with privacy, without deciding the matter, and considers the role of comparative human rights jurisprudence (see below).
Justice Bell’s concurring judgment
While Justice Bell agrees with the Chief Justice’s conclusions, he takes a different approach on three human rights matters.
First, he concludes that the principle of legality encompasses a broad range of rights, including both the right to privacy (as defined in article 17 of the ICCPR and section 13 of the Charter) and the right to work. In considering the right to work, he refers to the definition in the ICESCR and General Comment no 18 of the Committee on Economic, Social and Cultural Rights.
Secondly, Justice Bell considers that section 32 of the Charter does have application in this case.
Thirdly, unlike the Chief Justice, Justice Bell does reach a conclusion on the preferred approach to “arbitrary interference” with privacy, adopting his reasoning in Patrick’s case from the trial division.
On one level, this is not a Charter case, as the ratio (set out in the Chief Justice’s judgment) does not place reliance on the Charter. However, the obiter remarks of the Chief Justice do provide some guidance for future Charter cases.
Without deciding the issue, the Chief Justice indicates a preference for a broader, “human rights” definition of arbitrary interference with privacy. The first instance judgment of Justice Kaye in WBM took a very narrow and literal approach to interference with privacy, meaning interference that was not based on relevant identifiable criteria or capricious.
Other decisions, including Patrick’s case, have preferred a broader interpretation of arbitrary, which may include unreasonable or disproportionate interferences with privacy. This approach is more consistent with the approach taken by the UN Human Rights Committee, European Court of Human Rights and British courts, and indeed almost every significant human rights jurisdiction.
In considering this issue, the Chief Justice makes reference to comparative international and domestic jurisprudence, which contrasts with the approach in Justice Kaye’s judgment at first instance, where his Honour criticised the use of such jurisprudence.
However, the Chief Justice notes that the relevance of international jurisprudence is “a matter of relevance and weight”. In this regard, she appears to refer more frequently to European, United Kingdom and Irish cases, rather than the human rights jurisprudence of the United Nations system.
Finally, the concurring judgment of Justice Bell would appear to increase the scope for the use of international human rights norms, including economic, social and cultural rights, in interpreting legislation using the principle of legality. It remains to be seen whether other judges will follow this broader approach.
The decision is available online at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2012/159.html
Dan Nicholson is the Associate Director of Access and Equity at Victoria Legal Aid.