PROPORTIONALITY , RIGHTS-CONSISTENT INTERPRETATION AND DECLARATIONS UNDER THE VICTORIAN CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES : THE MOMCILOVIC LITIGATION AND BEYOND

The meaning, scope and interaction of the key provisions relating to the rights-compatibility of legislation under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were analysed by the Victorian Court of Appeal in R v Momcilovic. On appeal, the High Court of Australia reviewed this analysis and considered the constitutionality of the key provisions. Although overall the High Court upheld the provisions as constitutional, no majority opinion emerged on the scope and operation of the provisions in Victoria, with similar differences of opinion refl ected in the Victorian superior courts. Opinions differed on: the role, if any, of limitations under s 7(2); whether s 32(1) is an ordinary rule of statutory construction or a ‘remedial’ rule of interpretation; and the constitutionality and role of s 36(2) declarations of inconsistent interpretation. Even where a degree of agreement was apparent on one provision, the reasoning underlying the agreement differed, and/or there was no agreement on the interlinking provisions. An overarching theme concerned the methodology by which to approach the key provisions, which again produced disagreement.

The meaning, scope and interaction of the key provisions relating to the rights-compatibility of legislation under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were analysed by the Victorian Court of Appeal in R v Momcilovic.On appeal, the High Court of Australia reviewed this analysis and considered the constitutionality of the key provisions.Although overall the High Court upheld the provisions as constitutional, no majority opinion emerged on the scope and operation of the provisions in Victoria, with similar differences of opinion refl ected in the Victorian superior courts.Opinions differed on: the role, if any, of limitations under s 7(2); whether s 32(1) is an ordinary rule of statutory construction or a 'remedial' rule of interpretation; and the constitutionality and role of s 36(2) declarations of inconsistent interpretation.Even where a degree of agreement was apparent on one provision, the reasoning underlying the agreement differed, and/or there was no agreement on the interlinking provisions.An overarching theme concerned the methodology by which to approach the key provisions, which again produced disagreement.This article will critically analyse the multiplicity of views in the High Court, both because of the importance of the decision and because its application in Victoria is unclear.Regarding the latter, the Victorian superior courts have considered the Court of Appeal decision to not be overruled by the High Court, and continue to rely on it in varying degrees, whilst also seeking to identify a ratio from the High Court.By way of background, the article will explore the choices facing the Court of Appeal and its decision.It will then analyse the fi ve High Court judgments, focussing on the thematic issues of limitations, ordinary/ remedial interpretation, declarations, and methodology.It concludes with a review of the Victorian superior courts' reaction to the High Court decision.Analysis will be limited to consideration of the Charter of Human Rights and Responsibilities Act 2006 (Vic) as it operates in Victoria.In

I INTRODUCTION
The Charter of Human Rights and Responsibilities Act 2006 (Vic) (' 6 Charter') has survived its fi rst major test case.The meaning, scope and interaction of the key provisions relating to the rights-compatibility of legislation were analysed by the Victorian Court of Appeal (VCA) in R v Momcilovic. 1 On appeal, the High Court of Australia (HCA) reviewed this analysis and considered the constitutionality of those provisions in Momcilovic v The Queen. 2 The HCA upheld the validity of the Charter, but no clear majority emerged on the key provisions.In r r particular, opinions differed on: the role, if any, of s 7(2) limitations; whether s 32(1) encapsulates ordinary interpretative principles or confers a remedial rule of interpretation; and the constitutionality and role of s 36(2) declarations of inconsistent interpretation.Even where there was apparent agreement on one provision, the reasoning underlying that agreement differed, and/or opinions on other interconnecting provisions differed.
The details of these differences, and their impact on the operation of the Charter in Victoria, have received little in-depth or critical analysis. 3This article addresses this vacuum: fi rst, because of the signifi cance of the decision; 4 and secondly, because the proper and constitutional operation of the key provisions in Victoria is not settled -confronted with no clear majority in HCA Momcilovic, the Victorian superior courts consider VCA Momcilovic to not be overruled and continue to rely on it in varying ways. 5This is so despite the 'tentative' nature of the views expressed in VCA Momcilovic, with the VCA cautioning that '[n]o argument was addressed to the Court on [the question of the operation of s 32(1)], and the further exploration of the scope of s 32(1) must await an appropriate case '. 6 This article begins by canvassing the disputed legislation, the core issues before the VCA (the characterisation and strength of s 32(1), and the methodology for rights-assessment of legislation), and the VCA decision.It then explores the fi ve judgments delivered in HCA Momcilovic, focussing on the meaning, scope and interaction of ss 7(2), 32(1) and 36(2), a discussion that involves the s 32(1) characterisation/strength and methodology questions.Analysis is limited to the Charter as it operates in Victoria, r 7 highlighting the depth and breadth of disagreement of the HCA.The article concludes with an examination of the Victorian superior courts' response to HCA Momcilovic, which is of three kinds -fi rst, judgments that follow VCA Momcilovic as approved by French CJ in HCA Momcilovic; secondly, one judgment that expands upon the codifi cation of the principle of legality characterisation; and thirdly, judgments that suggest s 32(1) reaches beyond a codifi cation of the principle of legality. 8ere are specifi c tensions across the Victorian superior courts and the HCA over the scope, operation and constitutionality of the provisions relating to the rights-compatibility of legislation.These tensions are instances of much broader tensions over the retention of parliamentary sovereignty, the limits of judicial power, and the democratic nature of our governance and legal system, particularly where recognition of rights are concerned.

II BACKGROUND A The Legislation A
The rights-compatibility of a reverse onus provision in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ('Drugs Act ' ') was challenged.Under s 5, a substance is deemed 'to be in the possession of a person so long as it is upon any land or premises occupied by him ... unless the person satisfi es the court to the contrary' (emphasis added).A failure to discharge this reverse onus exposed an accused That is, the operation of a similar model at the federal level, or the operation of the Charter where the r Victorian courts are exercising federal judicial power, are not the focus of this article, and will only be mentioned in passing.8 This article is not intended to address the issue of the competence of the Victorian parliament to limit its sovereignty or to reconstitute itself (see, eg, A-G (NSW) v Trethowan (1931) 44 CLR 394).This article considers the jurisprudence to date, and this issue has not come before the courts.
to a conviction for drug traffi cking under ss 73(2) and 71AC of the Drugs Act, 9 which is an offense punishable by up to 15 years imprisonment. 10According to pre-Charter interpretation principles, s 5 imposed a legal burden of disproving r possession on the balance of probabilities. 11e VCA had to consider whether the reverse legal burden in s 5 imposed an l unjustifi able limitation on the presumption of innocence under s 25(1) of the Charter.If it did, the VCA had to consider whether s 5 should be interpreted r r under s 32(1) as imposing only a reverse evidentiary burden to ensure rightscompatibility. 12 If the s 32(1) interpretation was not available, the VCA had to consider whether to issue a declaration under s 36(2).

B The Choices
VCA Momcilovic addressed two fundamental issues: (a) the characterisation and strength of s 32(1); and (b) the methodology for the legislation-related mechanism.

Characterisation and Strength of Section 32(1)?
Section 32(1) provides that '[s]o 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'.It is modelled on s 3(1) of the Human Rights Act 1998 (UK) c 42 ('UKHRA'), which provides that '[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights'.The s 32(1) insertion of 'consistently with their purpose' is a relevant textual difference.The Human 9 Section 73(2) of the Drugs Act provides that where a person is in possession of a drug of dependence t of a traffi ckable quantity, 'the possession of that drug of dependence in that quantity is prima facie evidence of traffi cking by that person in that drug of dependence'.Section 71AC then criminalises drug traffi cking, providing that a person who traffi cks in a drug of dependence is guilty of an offence punishable by up to 15 years imprisonment.Under s 70, 'traffi ck' includes to 'have in possession for sale'.Accordingly, if a person fails to satisfy a court that they were not in possession under s 5, there is prima facie evidence of drug traffi cking under s 73(2), for which the person will be guilty of a criminal offence under s 71AC.10 Drugs of dependence of a traffi ckable quantity were found in an apartment owned and occupied by Vera Momcilovic.Momcilovic shared this apartment with her partner, Velimir Markovski.Momcilovic claimed she had no knowledge of the drugs, and Markovski admitted that the drugs were in his possession for the purpose of drug traffi cking.Nevertheless, Momcilovic was deemed to be in possession of the drugs under s 5 and charged under s 71AC of the Drugs Act.Although Momcilovic led some evidence that she was not in possession of the drugs, the legal onus to disprove possession on the balance of probabilities was not discharged and Momcilovic was convicted with one count of traffi cking in a drug of dependence.11 VCA Momcilovic (2010) 25 VR 436, 442-3 [16]- [22].12 This argument was put by three of the four parties and the amicus curiae.R v Lambert [2002] 2 AC 545 t ('Lambert') is the equivalent British case, where the original words of the legislature were retained, but the judges altered the meaning of the words by reading the legislative words as imposing only an g evidential burden of proof: at 563 [17] (Lord Slynn), 574-5 [42] (Lord Steyn), 586-7 [84], 589 [91], 589-90 [93]-[94] (Lord Hope), 609-10 [157] (Lord Clyde).Lord Hutton dissented: at 625 [198].The equivalent case from New Zealand is R v Hansen [2007] 3 NZLR 1 ('Hansen'), where the reverse onus provision was held to be incapable of an interpretation other than imposing a legal burden of proof.
Rights Consultation Committee report 13 indicates that the phrase was intended to codify s 3(1) of the UKHRA as interpreted in the leading case of Ghaidan v Godin-Mendoza, 14 as does other extrinsic material. 15Less textually similar is s 6 of the New Zealand Bill of Rights Act 1990 (NZ) ('NZBORA ' '), which reads '[w] herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning'. 16Where it is not possible or consistent with statutory purpose to interpret legislation compatibly with rights, the legislation remains enforceable; 17 and the judiciary may only issue an unenforceable declaration of inconsistent interpretation under s 36(2), 18 rather than invalidate the legislation.
By not empowering judges to invalidate legislation under ss 32(1) and 36(2), parliamentary sovereignty is said to be retained.Under constitutional instruments, if legislation unjustifi ably limits a right, the remedies include judicial invalidation of the legislation; whereas, under statutory instruments, the remedy is rightsconsistent judicial interpretation limited by an inability to judicially legislate, coupled with an unenforceable declaration.However, the veracity of the parliamentary sovereignty retention claim depends on the reach of s 32(1), with the line between proper judicial interpretation (' r possible ' ' interpretation) and improper judicial lawmaking ( r not ( ( 'possible ' ' interpretation) being key.Defi ning this line under s 3(1) has proved 'elusive', 19 and is further complicated by 'consistently with their purpose' in s 32(1).
13 Human Rights Consultation Committee, 'Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee' (Report, November 2005) ('HRCC Report').
14 [2004] 2 AC 557 ('Ghaidan').In explaining the insertion of 'consistently with their purpose', the HRCC Report states that 'the courts would be provided with clear guidance to interpret legislation to give effect t to a right so long as that interpretation is not so strained as to disturb the purpose of the legislation', an approach which 'is consistent with some of the more recent cases in the United Kingdom, where a more purposive approach to interpretation was favoured' : HRCC Report, above n 13, 82-3, citing Ghaidan [2004] 2 AC 557, 572 [33] (Lord Nicholls), 596 [110] (Lord Rodger).15 For an exploration of the link between 'consistently with their purpose '  Correctly, the VCA considered British jurisprudence on s 3(1) for guidance.At one end of the spectrum is Ghaidan. 20Although Ghaidan is considered a retreat 21 from R v A, 22 its approach is considered 'radical' because of Lord Nicholls' obiter comments about the rights-compatible purposes of the UKHRA potentially being capable of overriding rights-incompatible purposes of a challenged law: the interpretative obligation decreed by section 3 is of an unusual and far-reaching character.Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear … Section 3 may require the court to depart from … the intention of the Parliament which enacted the legislation.The question of diffi culty is how far, and in what circumstances, section 3 requires the court to depart from the intention of the enacting Parliament.The answer … depends upon the intention reasonably to be attributed to Parliament in enacting section 3. 23 The other end of the spectrum is Wilkinson. 24Lord Hoffman draws an analogy between s 3(1) and the principle of legality.His Lordship introduces an element of reasonableness, describing interpretation under s 3(1) as 'the ascertainment of what, taking into account the presumption created by s 3, Parliament would reasonably be understood to have meant by using the actual language of the statute'. 25Although Lord Hoffman's reasoning was accepted by the other Law Lords in Wilkinson, 26 it failed to materialise as the leading case on s 3(1); rather, Ghaidan remains the case relied upon. 27The VCA sought to resolve whether 20 [2004] 2 AC 557.In Ghaidan, the heterosexual defi nition of 'spouse' under the Rents Act 1977 (UK) 7 c 42, sch 1 para 2(2) was found to violate art 8 (right to home) when read with art 14 (right to nondiscrimination) of the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953) ('ECHR').The Court of Appeal and House of Lords 'saved' the rights-incompatible provision via s 3(1) by reinterpreting the words 'living with the original tenant as his or her wife or husband' to mean living with the original tenant 'as if they were his or her wife or husband': Ghaidan v Godin-Mendoza [2003]

The Methodology
The VCA also sought to establish the methodology for achieving rights-compatible legislative interpretation.Under the UKHRA 28 and NZBORA 29 the methodology adopted is similar.Three individual judges of the Supreme Court of Victoria had essentially adopted this approach in RJE, 30 Kracke, 31 and Das. 32e method focuses on two 'rights questions' and two 'Charter enforcement r questions', 33 and is summarised in Charter-language as follows: The 'Rights Questions' First: Does the legislative provision limit a right?Second: If yes, is the limitation reasonable and justifi able under s 7(2) or a right-specifi c limitation?
The 'Charter Enforcement Questions' r Third: If the legislative provision unjustifi ably limits rights, can the provision be 'saved' through s 32(1) interpretation; accordingly, the judge must alter the meaning of the provision in order to achieve rightscompatibility.Fourth: Is the altered rights-compatible interpretation of the provision 'possible' and consistent with statutory purpose?

The Conclusion
Section 32(1) ( ): If the s 32(1) rights-compatible interpretation is 'possible' and consistent with statutory purpose, this is a complete remedy to the human rights issue.Section 36(2) ( ): If the s 32(1) rights-compatible interpretation is not 'possible' and/or not consistent with statutory purpose, the judge may issue a nonenforceable declaration under s 36(2).This is referred to as the 'UK/NZ Method'.Three aspects are noteworthy.First, the concept of 'rights-compatibility' focuses on rights as reasonably and justifi ably limited, not rights in their absolute form.This recognises that not all rights are absolute, and that justifi able limitations on rights are an expected and acceptable part of resolving confl icts between rights, and between rights and other values in a democratic society. 34Secondly, if a limit is justifi ed, that concludes the inquiry -there is no judicial reinterpretation under the third step, and no judicial assessment of possibility and consistency under the fourth step. 35Importantly, this preserves parliamentary sovereignty. 36Thirdly, s 32(1) interpretation comes after an unjustifi ed limitation by way of judicial remedy.A rights-compatible interpretation of legislation is a complete remedy for what would otherwise have been a rights-incompatible application of the law.

C The VCA Momcilovic Decision
VCA Momcilovic aligned s 32(1) most closely with Wilkinson. 37Section 32(1) was characterised as an ordinary principle of statutory interpretation, and a unique methodology was proposed that weakened the role of s 7(2).

Characterisation and Strength of Section 32(1)?
The VCA unanimously held that s 32(1) 'does not create a "special" rule of interpretation [in the Ghaidan sense], but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question'. 38The 'framework of interpretive rules' 39 includes s 32(1) of the Charter, s 35(a) of the r r Interpretation of Legislation Act 1984 (Vic) ('ILA ' '), and the common law rules of statutory interpretation, particularly the presumption against a parliamentary intention to interfere with or infringe rights (the principle of legality).To meet the s 32(1) obligation, a court must explore 'all "possible" interpretations of the provision(s) in question, and [adopt] that interpretation which least infringes Charter rights', r 40 with the concept of 'possible' being bounded by the 'framework of interpretive rules'.
For the VCA, the signifi cance of s 32(1) is that Parliament 'embraced', 'affi rmed' and codifi ed the principle of legality, such that it 'is no longer merely a creature of the common law but is now an expression of the "collective will" of the legislature'. 41Moreover, the guaranteed rights are codifi ed in the Charter.r r 42

Methodology
The VCA proposed the following methodology ('VCA Method'): Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory r interpretation and the Interpretation of Legislation Act 1984.
Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.r r Step 3: If so, apply s 7(2) of the Charter to determine whether the limit r imposed on the right is justifi ed. 43ere are signifi cant differences between the VCA Method and UK/NZ Method.Under the VCA Method, s 32(1) is relevant during the initial and ordinary interpretative process, 44 and has no remedial scope. 45 relevant to interpretation 46 or assessing rights-compatibility, 47 but is a step preparatory to 'enforcement' via s 36(2).By contrast, the UK/NZ Method uses ordinary interpretative methods to establish whether a right is limited; then s 7(2) to adjudge the justifi ability of the limit; with s 32(1) being utilised after an unjustifi ed limit is established, as part of the remedial powers to address the unjustifi ed limitation.As discussed below, the VCA Method also differs to the method under constitutional instruments, even though the VCA (mistakenly) relied on constitutional methodology. 48 applying its methodology, the VCA held that, fi rst, the proper meaning of s 5 is the imposition of a reverse legal onus, and that it was not possible consistently with its purpose to construe s 5 as imposing an evidential onus; 49 secondly, 'that the combined effect of s 5 and s 71AC is to limit the presumption of innocence'; 50 and thirdly, that the limitation was not reasonable or demonstrably justifi ed under s 7(2). 51 The fi rst question is the interpretation of the right.In ascertaining the meaning of the right, the criteria for justifi cation are not relevant.The meaning of the right is ascertained from the 'cardinal values' it embodies.Collapsing the interpretation of the right and the s 1 justifi cation is insuffi ciently protective of the right.This passage does not undermine the UK/NZ Method because there are two distinct inquiries under t the 'rights questions'.The fi rst inquiry concerns the scope of the right and the legislation as ordinarily ascertained, and whether the latter limits the former.Once a right is limited, the second and distinct inquiry focuses on the reasonableness and justifi ability of the limit.Far from confl icting, the UK/NZ Method shares the two-step approach in Canada.Moreover, under the UK/NZ Method, there is no 'grafting' of limitation considerations onto interpretation considerations under s 32(1) -at the 'Charter enforcement questions' stage, the limitations power is 'spent'.The VCA's reliance on this passage lies in its misunderstanding of what Elias CJ is discussing.Her Honour is discussing the 'meaning of the right', not the meaning of the challenged legislation.A discussion about the meaning of a right and its interaction with a limitations provision has been confused with a discussion about the meaning of s 32(1) and its interaction with a limitations provision.The Canadian discussion about two 'rights questions' cannot be relied upon by the VCA in a discussion about the interaction between one 'rights question' (that is, s 7(2)) and one 'Charter enforcement question' (that is, s 32(1)).French

Critique of VCA Momcilovic
I previously examined VCA Momcilovic, critiquing the VCA's reliance on Wilkinson, its approach to the language of s 32(1), its analysis of the intention of Parliament in enacting s 32(1), the reasoning underlying its conclusion that s 32(1) is not a 'special' rule of interpretation, that s 32 is a codifi cation of the principle of t legality, and the VCA's methodology. 54In essence, I argue that the VCA cherrypicked from comparative jurisprudence, extrinsic materials, and textual and structural interpretation arguments, to avoid a methodology that gives s 32(1) a remedial reach and Ghaidan-radical interpretation.Although this article focuses on HCA Momcilovic, this earlier critique remains relevant because French CJ and Crennan and Kiefel JJ sanction some or all of the VCA decision, and because Victorian superior courts continue to rely on the 'tentative views' 55 expressed in VCA Momcilovic. 56

D Constitutional Instruments
Before considering HCA Momcilovic, we must consider the approach to interpretation and remedies under constitutional instruments, such as the Canadian Charter.Although the VCA and French CJ r r 57 J J relied on the Canadian Charter to support the VCA reasoning, the method under the r Canadian Charter more closely mimics the UK/NZ Method.Like the UK/NZ Method, 58 review under the Canadian Charter consists of 'rights questions' and 'enforcement r questions', as follows: The 'Rights Questions' First: Does the legislative provision limit a right?Second: If yes, is the limitation reasonable and justifi able under s 1 limitations? 59 The 'Charter Enforcement Questions' Third: If the legislative provision unjustifi ably limits rights, the enforcement options include: (a) Interpretation-based remedies, such as reading in, reading down and severance; There are four salient points.First, the Canadian judiciary undertakes ordinary statutory interpretation when considering the fi rst 'rights question' 62 -that is, when characterising the challenged legislation, the court examines its purpose and effect. 63Moreover, '[w]here the language of a statute will bear two interpretations', one which limits a right and one which will not, 'the Charter can r be applied simply by selecting the interpretation that does not abridge the Charter right'. 64As Hogg notes, this 'is simply a canon of construction (or interpretation)', through which the Canadian Charter 'achieves its remedial purpose solely by r the interpretation of the challenged statute'. 65The fi rst steps under the Canadian Charter and the UK/NZ Method are similar.r Secondly, if legislation limits rights, the judiciary assesses the reasonableness and demonstrable justifi ability of the limit under the second 'rights question', which 'involves the interpretation and application of s 1'. 66This is similar to step 2 under the UK/NZ Method.Most importantly, limits analysis is not part of the initial interpretation process, nor part of the consequential remedies -it is a distinct stage. 67 The power to invalidate comes from the 'supremacy' clause, which states that '[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect': Canada Act 1982 (UK) c 11, sch B s 52.61 Section 24 of the Canadian Charter contains remedial powers.Section 24(1) empowers the courts to r give anyone whose rights have been denied or infringed a remedy that is just and appropriate in the circumstances.Section 24(2) empowers a court to exclude evidence obtained in violation of rights if to admit it would bring the administration of justice into disrepute.Section 24 remedies will generally not be invoked if s 52 has been engaged: Schachter v Canada [1992]  Thirdly, the 'remedial mechanisms' under the Canadian Charter go beyond r invalidating offending legislation, and include reading in 68 and reading down. 69uch interpretation-based 'remedies' are available only after s 1 is 'spent' -r that is, after an unjustifi able limitation is established. 70Hogg notes that with reading down, '[t]he vindication of the Charter right is accomplished solely by r interpretation'. 71'Remedial interpretation' under the Canadian Charter mimics r the UK/NZ Method. 72urthly, the general rule under the Canadian constitution that 'courts may not reconstruct an unconstitutional statute in order to render it constitutional' is subject to many exceptions, including severance, reading in and reading down. 73Similarly to the UK/NZ Method, however, there is a point where remedial interpretations go beyond the proper judicial role.Just as s 32(1) remedial interpretations which are not possible and/or consistent with statutory purpose are t not sanctioned under t the Charter, in Canada '[t]here is a point at which … an unconstitutional statute r r cannot be salvaged except by changes that are too profound, too policy-laden and too controversial to be carried out by a court'. 74Both statutory and constitutional rights instruments employ interpretation techniques for remedial purposes, and both identify a line between legitimate judicial interpretation and illegitimate judicial lawmaking.
68 Schachter [1992] 2 SCR 679, 695-702.Reading in legislative provisions will only be available in 'the r clearest of cases' (at 718, 727), and where three conditions are met: (a) the legislative objective must be clear, and severance or reading in must further that objective or interfere less with the objective than would invalidating the entire legislation; (b) the legislature's choice to pursue the objective by way of the impugned legislation is not so explicit that severance or reading in would unacceptably interfere with the legislative sphere; and (c) severance or reading in would not involve a substantial change to the budgetary implications of the objective such as to change the nature of the legislative scheme: at 705-15, 718.See also Miron v Trudel [1995]  The method under United Kingdom and New Zealand statutory instruments has a closer connection to the Canadian constitutional instrument than does the VCA Method.The reliance of the VCA and French CJ on the Canadian Charter is misconceived.

III THE HCA MOMCILOVIC DECISION
On appeal, the HCA identifi ed numerous constitutional law issues.This article focuses on those that pertain to the validity and operation of the Charter in r Victoria. 75

A Constitutional Background A
Two relevant constitutional issues arose.The fi rst concerns the constitutional relationship between the arms of government.As described in Zheng v Cai, judicial interpretation of a law is 'an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws'. 76Related is the constitutional tradition 'that it is the task of the judiciary in interpreting an Act to seek to interpret it "according to the intent of them that made it"'. 77These considerations infl uenced the construction of s 32(1).
The second concerns the separation of judicial powers.Because Vera Momcilovic had moved to Queensland by the hearing date, the VCA had in fact been exercising federal jurisdiction because it became a matter 'between a State and a resident of another State' under s 75(iv) of the Constitution.The implied separation of judicial powers principle that a Chapter III court 78 can only exercise judicial power, 79 or a non-judicial power incidental thereto, 80  jurisdiction, and for the (in)validity of Charter-like provisions if enacted by a f future federal parliament.These issues are not discussed here. 81ther, this article concerns the validity of the Charter when operating in r Victoria under state jurisdiction.There is no separation of powers doctrine in the Victorian Constitution. 82However, the HCA has extended federal constitutional separation of powers protections to state courts.In Kable 83 and later cases, 84 the HCA held that because state courts are vested with federal jurisdiction, they are considered part of the federal judicial system, and separation of powers applies.Accordingly, state parliaments cannot confer a power or function on a state court which substantially impairs its institutional integrity, which will be repugnant to, or incompatible with, its exercise of the judicial power of the Commonwealth. 85ssentially, state courts can only exercise judicial powers, or non-judicial powers, that are not repugnant to or incompatible with the exercise of federal judicial power thereby maintaining their institutional integrity.Kable was potentially relevant to ss 7(2), 32(1) and 36(2).

B The Outcome
Five Justices held that the s 5 'possession' deeming provision did not apply to the s 71AC offence of traffi cking, which required the composite 'possession for sale'.Their Honours held that because Momcilovic should not have been deemed in 'possession', the jury had been misdirected and the trial miscarried. 86The HCA quashed Momcilovic's conviction, set aside her sentence, and ordered a new trial.However, the HCA addressed, inter alia, 87   (Cth). in this proceeding.Three judges (Gummow, Hayne and Heydon JJ) held that s 36(2) was invalid.Overall, a majority of fi ve held that the VCA's declaration was invalid or should not have been made, and it was set aside.
The extent of disagreement about the validity and operation of the Charter in Victoria, within the federal constitutional constraints, is remarkable.The judgments will be considered in two categories -those most aligned with the VCA, and those most aligned with the UK/NZ Method.Analysis within each category will focus on the thematic issues surrounding ss 7(2), 32(1), 36(2) and their interactions.

C Support for VCA Momcilovic
The judgments of French CJ, and Crennan and Kiefel JJ more closely align with the VCA reasoning, although not necessarily the VCA Method.In brief, French CJ agrees with VCA Momcilovic that s 32(1) codifi es the principle of legality and s 7(2) does not inform the interpretation process.His Honour held that s 36(2) is not an impermissible exercise of non-judicial power.Crennan and Kiefel JJ consider s 32(1) to be an ordinary rule of construction, without explicitly sanctioning the principle of legality characterisation, and that s 7(2) is a principle of justifi cation which plays no role in the interpretation process.Their Honours reject both the UK/NZ and VCA methodologies.Their Honours held that s 36(2) does not interfere with the institutional integrity of the state courts and is valid.

Section 32(1)
Both judgments consider comparative jurisprudence, but highlight the unique aspects of the Charter and its broader constitutional setting.This is the prelude to r supporting the narrow Wilkinson-reasonable approach to s 32(1).The constitutional relationship between the arms of government informs the judgments, but s 32(1) is construed on its own terms. 88ench CJ began by noting Zheng's reference to interpretation being 'an expression of the constitutional relationship between the arms of government', 89 and referring to the 'constitutional tradition' that judges interpret legislation 'according to the intent of them that made it'. 90His Honour noted that the 'duty of the Court' is 'to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have', 91  a matter of complying with the common law and statutory rules of construction. 92ccording to common law rules, '[t]he meaning given to … [statutory] words must be a meaning which they can bear'; 93 subject to 'an exceptional case' where 'the common law allows a court to depart from grammatical rules and to give an unusual or l strained meaning to statutory words where the ordinary meaning d and grammatical construction would contradict the apparent purpose of the enactment', although '[t]he court is not thereby authorised to legislate'. 94These common law rules of construction '[help] to defi ne the boundaries between the judicial and legislative functions'. 95ench CJ analyses the British jurisprudence, and recognises that Ghaidan 'is routinely cited and applied and treated as authoritative'. 96His Honour, however, avoids Ghaidan by holding that s 3(1) 'has a history and operates in a constitutional setting which is materially different from that which exists in Australia', 97 and that s 32(1) 'exists in a constitutional setting which differs from the setting in which the … [UKHRA] operates'. 98nsidering s 32(1) within its unique constitutional setting, French CJ refers to the VCA Momcilovic analysis of the Second Reading Speech: in which s 32(1) was described as a provision which 'recognises the traditional role for the courts in interpreting legislation'.… It observed, correctly in my respectful opinion, that if Parliament had intended to make a change in the rules of interpretation accepted by all areas of government in Victoria 'its intention to do so would need to have been signalled in the clearest terms'. 99e Chief Justice opines that s 32(1): mandates an attempt to interpret statutory provisions compatibly with human rights.There is, however, nothing in its text or context to suggest that the interpretation which it requires departs from established understandings of that process.The sub-section limits the interpretation which it directs to that which is consistent with the purpose of the statutory provision under consideration.It operates upon constructional choices which the language of the statutory provision permits.Two propositions -that a change in the rules of interpretation should 'have been signalled in the clearest of terms' 101 and that 'nothing in its text or context' suggests s 32(1) interpretation 'departs from established understandings of that process' 102 -have been previously critiqued.
French CJ then accepts that s 32(1) codifi es the principle of legality, relying on Wilkinson: Section 32(1) does what Lord Hoffmann and the other Law Lords in Wilkinson said s 3 of the … [UKHRA] does.It requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same r statutes to be construed against the background of common law rights and freedoms.… Section 32(1) applies to the interpretation of statutes in the same way as the principle of legality but with a wider fi eld of application.The Court of Appeal was essentially correct in its treatment of s 32(1). 103e explicit approval of VCA Momcilovic opens French CJ to criticism.First, it is 'far from clear that Wilkinson adopts a weaker or narrower conception of s 3(1) [than Ghaidan] as a general matter'. 104Although French CJ sought to distance s 32(1) from Ghaidan, his Honour's approval of Wilkinson may indeed sanction Ghaidan.Secondly, my previous analysis of the VCA's reliance on Geiringer's principle of legality conceptualisation of s 6 of the NZBORA warrants mention: Geiringer's central thesis -'that s 6 may on occasion entitle the courts to adopt constructions that are at odds with statutory purpose' -and her conclusion 'that in an appropriate case, even quite strong legislative indications of "purpose" must yield to the statutorily mandated imperatives d set out in the NZBORA' -are based on the common law: '[w]here fundamental values are perceived to be threatened, there is a long history of common law courts utilising presumptions of interpretation to promote literal or even strained meanings in disregard of statutory purpose'. 105 I conclude in that article, the principle of legality characterisation does not support French CJ's underlying concern that s 32(1) 'limits the interpretation which it directs to that which is consistent with the purpose of the statutory provision under consideration': 106 this characterisation 'does not avoid t Ghaidantype interpretative analysis' and 'it does not automatically elevate the statutory purpose of the impugned provision over the statutory purpose of the rights instrument'. 107irdly, French CJ fails to acknowledge the limitations imposed by 'so far as it is possible to do so'. 108In terms of preserving the traditional constitutional relationships, the British jurisprudence indicates that the word 'possible' limits judicial power: what is 'possible' is interpretation; what is not 'possible' is legislation. 109Similarly, the Charter envisages 'possibility' as the operative limit r on judicial power.The s 1(2)(b) purposes provision refers to interpretation 'so far as is possible in a way that is compatible with human rights' without any t reference to 'consistently with their purpose'.This indicates the Charter-enacting parliament's intention that 'possibility' be the predominant limit to interpretation rather than 'consistently with their purpose', which should be refl ected in a traditional purposive interpretation of s 32(1), particularly where that purpose is stated in the legislation. 110The preservation of the traditional constitutional relationship was intended to be guaranteed by the concept of 'possibility', rather than a narrow, non-remedial reading of s 32(1).
Finally, in construing s 5 of the Drugs Act, French CJ distinguishes Hong Kong Special Administrative Region v Lam Kwong Wai, 111 where Mason NPJ stated that 'remedial interpretation' would require courts 'to give the statutory provision an interpretation that is consistent with the protected rights, even an interpretation that is strained in the sense that it was not an interpretation which the statute d was capable of bearing as a matter of ordinary common law interpretation'. 112he Lam Kwong Wai and Project Blue Sky rules of construction are similarboth acknowledge that ordinary common law interpretation is driven by purpose, and both acknowledge that a strained interpretation that is not open on ordinary d common law principles is acceptable.Any distinction between the two is not apparent.
French CJ sought to preserve the traditional constitutional relationship between the arms of government.Rather than relying solely on the constitutional relationship to justify a narrow reading of s 32(1), his Honour chose to rely on the questionable statutory interpretation of the VCA, which itself represents a strained interpretation of the history, text and context of s 32(1).d 113 Moreover, his Honour failed to give any meaning or effect to the phrase intended to preserve the constitutional relationship -'so far as it is possible to do so'. 114ennan and Kiefel JJ approach the operation of and interaction between the key provisions as 'matters to be determined by reference to the construction of the Charter in its own terms'.r 115 Focussing on s 32(1), their Honours begin by comparing the Charter provisions with comparative provisions, and conclude r that 'important differences in the terms of the sections are themselves suffi cient to distinguish s 32(1) of the Charter from s 3(1) of the … [ r UKHRA]'. 116e difference is 'the rather emphatically expressed direction in s 3(1) that a "statute must be read and given effect"' in a way which is compatible with rights; and that this produced the outcome of compatibility in d Ghaidan. 117Furthermore, the approach in Ghaidan paid 'insuffi cient attention' to the words 'so far as it is possible to do so', and whether those words 'are directed to compliance with the usual rules of statutory interpretation in the context of the Charter'. 118Their Honours then suggest that 'consistently with their purpose' in the Charter 'points r clearly to the task ordinarily undertaken by courts in construing legislation', citing the principle from Project Blue Sky that construction ought to 'achieve consistency with the language and the purpose of the statute'. 119is must be examined.First, contrary to their Honours suggestion, the British judiciary has paid little attention to the words 'be read and given effect', particularly in relation to distinguishing judicial interpretation from judicial legislation.Rather, the judiciary has used the phrase 'so far as is possible to do so' to impose the boundary between legitimate judicial interpretation and illegitimate judicial legislation. 120 'section 3 requires the court to read legislation in a way which is compatible with the Convention only "so far as it is possible to do so".It must, therefore, be possible, by a process of interpretation alone, to read the offending statute in a way which is compatible with the Convention': at 585 [66] (emphasis in original).See generally Debeljak, 'Parliamentary Sovereignty and Dialogue', above n 33, 40-9.
jurisprudence that 'so far as possible to do so' sanctions only 'the usual rules of statutory interpretation'.
Secondly, contrary to their Honours suggestion, the jurisprudential development of the meaning of 'possible', which culminates in Ghaidan, does not necessarily undermine the 'consistency with language and purpose' emphasised in Project Blue Sky.The UKHRA-enacting parliamentary intention underlying s 3(1) certainly emphasised language: s 3(1) enables 'the courts to strive to fi nd an interpretation of legislation that is consistent with convention rights, so far as the plain words of the legislation allow'. 121Numerous judgments also highlight the importance of language and purpose.In R v A, Lord Hope held that any modifi ed interpretation should not confl ict with the express language of the legislation, nor any necessary implications thereto, as both are 'means of identifying the plain intention of Parliament'. 122In Lambert, the majority retained the original language used by parliament, but altered the meaning of the words. 123 Ghaidan, after discussing the potentially competing intentions of the UKHRA and challenged legislation, Lord Nicholls articulates a set of guidelines about what s 3(1) does and does not allow, with an emphasis on language and purpose. 124ection 3(1) allows 'language to be interpreted restrictively or expansively'; is 'apt to require a court to read in words which change the meaning of the enacted legislation'; and allows a court to 'modify the meaning, and hence the effect, of … legislation'; allows implying words provided they 'go with the grain of the legislation'. 125However, s 3(1) does not allow the courts to 'adopt a meaning inconsistent with a fundamental feature of legislation'; any s 3(1) re-interpretation 'must be compatible with the underlying thrust of the legislation being construed' and must 'go with the grain of the legislation' . 126Any attempt at altering the language -be it expansive or restrictive interpretation, reading in words, or modifying meaning -is limited by the underlying purpose of the legislationits fundamental features, its thrust, its grain. 127Moreover, Lord Nicholls opines that judges may (not must) depart from legislative intention, t but not where it would undermine the fundamental features of legislation, be incompatible with the underlying thrust of legislation, or go against the grain of legislation.It is diffi cult to conceive of a case where a rights-incompatible legislative intention would not be refl ected in the fundamental features, the underlying thrust, and the grain of the legislation, so as to leave the statutory language open to judicial rewrite. 128Finally, the ratio of Lord Nicholls relies on the parliamentary intention underlying the challenged legislation. 129other difference relied on is the distinction between 'must be read and given effect' under s 3(1) and 'must be interpreted' under s 32(1).Crennan and Kiefel JJ opine that use of the latter: was intended to overcome any misapprehension about the role of the courts in construing legislation.The reference to interpretation must be taken to be a reference to that process of construction as understood and ordinarily applied by courts, a process which is to be taken as accepted by the other arms of government in a system of representative democracy. 130is must be examined.Regarding textual differences, the HRCC Report, 131 Explanatory Memorandum, 132  used interchangeably in the extrinsic materials to the UKHRA 134 and the British jurisprudence. 135Commentators have not attributed any signifi cance to these textual differences. 136rning to Zheng, the HCA in that case stated that: judicial fi ndings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws.As explained in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs, the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. 137e NAAV reference is to French J's examination of the rules of construction.V 138 In discussing purposive construction, French J notes that 'legislative intention' describes 'an attributed intention based on inferences drawn from the statute itself'. 139His Honour states that the use of legislative intention: in the process of statutory interpretation is of fundamental importance because it directs courts to objective criteria of construction which are recognised as legitimate.It requires reference to matters which were before the Parliament when the law was enacted.The fi rst and best criterion 134 There are numerous references to 'interpretation' in Home Department (UK), Rights Brought Home: The Human Rights Bill, Cm 3782 (1997): 'The Bill provides for legislation … to be interpreted so far d as possible so as to be compatible with the Convention' and '[t]he courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so' (at [2.7]) (emphasis added); 'This "rule of construction" is to apply to past as well as to future legislation.To the extent that it affects the meaning of a legislative provision, the courts will not be bound by previous interpretations': (at [2.8]) (emphasis added).Moreover, the parliamentary debate contained numerous references to 'interpretation'.Lord Cooke of Thorndon noted that s 3 'will require a very different approach to interpretation from that to which United Kingdom courts are accustomed' and 'the common law approach to statutory interpretation will never be the same again': United Kingdom, Parliamentary Debates, House of Lords, 3 November 1997, vol 582, col 1272-3 (emphasis added).The Lord Chancellor used the terms interchangeably: '[Section] 3 provides that legislation, whenever enacted, must as far as possible be read and given effect in a way which is compatible with the convention rights.This will ensure that, if it t is possible to interpret a statute in two ways … the courts will always choose the t interpretation which is compatible': United Kingdom, Parliamentary Debates, House of Lords, 3 November 1997, vol 582, col 1230 (Lord Irvine of Lairg) (emphasis added).The Home Secretary also used the terms interchangeably: '[Section] 3 provides that legislation, whenever enacted, must as far as possible be read and given effect in such a way as to be compatible with convention rights.We expect that, in almost all cases, the courts will be able to interpret legislation compatibly with the convention': United Kingdom, t Parliamentary Debates, House of Commons, 16 February 1998, vol 306, col 778 (Jack Straw) (emphasis added).135 See, eg, 'the exercise which the court is called on to perform is still one of interpretation, not legislation: (legislation must be "read and given effect to")': is the ordinary, grammatical meaning of the words themselves.… It is sometimes said that the courts 'ascertain' the intention of the legislature by considering the meaning of the words it has used … However the meaning of a legislative word is not like a rock lying on the ground waiting to be found.It is a product of interpretation which is legitimate if and only if the interpretation process invokes criteria which, whether developed by courts or decreed by statute, or both, are broadly understood by the Legislature, the Executive and the judiciary.
In some cases the grammatical and ordinary meaning of a statute may lead to absurdity or inconvenience in its operation or be inconsistent with the object of the Act … In that event, the Court may apply additional generally accepted and understood criteria to the process of interpretation so that what emerges may still properly be described as according with legislative intention.One of those criteria … is … a court should have regard to the mischief which it was designed to cure.… is also important to have regard to criteria of construction which Parliament has prescribed and which are set out in the Acts Interpretation Act. 140ch general statements concerning the role of the rules of construction are instructive insofar as explaining how the rules justify 141 and fashion judicial interpretation.However, such statements say nothing about the substantive content of the rules themselves.Why limit these substantive rules to judge-made t common law and the ILA?Why is s 32(1) not considered a new substantive rule of construction?The answer cannot be because the rules of construction are fi xed, given that common law rules develop over time and the ILA is ordinary legislation subject to change.It cannot be because of the democratic roots of the ILA, because the same can be said of the Charter and cannot be said of the common law rules.r Indeed, the new Charter rules of construction received democratic sanction in r Parliament, and the Executive is subject to these new rules through its s 28 prelegislative scrutiny obligations and its s 38 obligations as a public authority.
It is diffi cult to accept Crennan and Kiefel JJ's conclusion that '[t]he reference to interpretation must be taken to be a reference to that process of construction as understood and ordinarily applied by courts' 142 when other NAAV factors are V accounted for.Regarding NAAV's concern with 'matters before the Parliament', the HRCC Report was before Parliament, and it contained an explicit reference t to Ghaidan for the insertion of the words 'consistently with their purpose'. 143Moreover, s 32(1) is modelled on s 3(1) when many alternatives were available. 144egarding NAAV's reference to 'mischief', the 'mischief' of the Charter included better protection of rights in Victoria.r 145 As Heydon J notes, '[t]he function of s 32(1) evidently is to make up for the putative failure of the common law rules by legitimising reliance on a much broader kind of "purposive" interpretation going beyond the traditional search for "purpose" as revealed in the statutory words'. 146e joint judgment then contemplates the intended interaction between ss 7(2), 32(1) and 36(2).Regarding s 32(1), their Honours hold that '[s]ection 32 does not state a test of construction which differs from the approach ordinarily undertaken by courts towards statutes.… The Charter forms part of the context in which r a statute is to be construed' -relying on Lord Hoffman in Wilkinson. 147This suggests that structurally s 32(1) will form part of the initial interpretative task.Earlier critiques relating to the text and context of s 32(1) not departing from established understandings of ordinary interpretation, and Wilkinson, equally apply here. 148ennan and Kiefel JJ also argue that, given s 32(3)(a) acknowledges a rightscompatible interpretation may not always be possible, '[i]t cannot therefore be said that s 32(1) requires the language of a section to be strained to effect consistency with the Charter', 149 and conclude 150 'that a court's role in ascertaining the meaning of the legislation remains one of interpretation'. 151Equally arguable is that the phrase 'so far as is possible to do so' ensures the judicial task 'remains one of interpretation', without relying on s 32(3)(a), yet this phrase is not relevantly explored by their Honours.
The joint judgment is driven in part by traditional constitutional relationships and in part by ordinary statutory construction.The distinctions drawn between the Charter and r UKHRA rely on both but are open to critique, as are their Honours' textual and contextual arguments for reliance on Wilkinson, and their failure to give any meaning or effect to 'so far as it is possible to do so'.

Section 7(2)
French CJ and Crennan and Kiefel JJ approach s 7(2) through statutory interpretation, not constitutional analysis.The characterisation of s 7(2) in both judgments is linked to the characterisation of s 32(1) being part of the ordinary interpretative process.The failure to conceive of s 32(1) as a remedy results in 'one of the key provisions in the Charter' 152 having little to no consequence on rights protection.
French CJ refers to the Second Reading Speech in determining the operation of s 7(2).His Honour notes the Speech refers to the non-absoluteness of rights, the factors to be balanced, that s 7(2) will 'assist courts and government in deciding when a limitation arising under the law is reasonable and demonstrably justifi ed', and that where a limit is justifi ed 'action taken in accordance with that limitation will not be prohibited under the charter, and is d not incompatible with the right'. 153French CJ then concludes that '[t]he Second Reading Speech did not spell out the context in which courts would be called on to make such decisions'.t 154 This conclusion must be challenged.First, the Speech states that s 7(2) will 'assist courts' in assessing limitations, indicating judicial involvement.Secondly, that justifi ed limitations 'will not be prohibited' suggests the enforcement mechanisms will not apply to justifi ed limitations; this, in turn, suggests that t references to 'compatible with human rights' in ss 32(1) and 38(1) include the limitations analysis.Thirdly, the characterisation of justifi ed limitations as 'not incompatible with the right' in the Speech explicitly confi rms the role of s 7(2) in assessing compatibility.
French CJ only addresses the third argument.Although the link between s 7(2) and compatibility in the Speech is conceded, his Honour concludes 'the same linkage was not made in the Explanatory Memorandum and … is not made in the text of the Charter.Ministerial words in the Second Reading Speech cannot r r supply that statutory connection'. 155The Charter does not defi ne 'compatible with r human rights', but its textual usage and the structure of the Charter supplies the r meaning.Regarding structure, Evans and Evans note that 'the [s 7(2)] limitation provision is in Pt 2 … and forms part of the specifi cation of the human rights that are protected by Pt 2' , 156 such that a provision imposing a justifi ed limitation is 'compatible with rights'. 157garding text, 'compatibility with rights' is used in s 28 statements of compatibility.If 'compatibility with human rights' in s 28 referred to the rights without reference to s 7(2), statements of incompatibility would be required for proposed laws that technically violate rights but are patently reasonable and demonstrably justifi able. 158This is not the routine practice with s 28 statements. 159f s 28 contemplates a role for s 7(2), why wouldn't s 32(1)? 160 French CJ seems to make a similar mistake to the VCA.The VCA relies on the dissent of Elias CJ in Hansen to bolster its conclusion that s 7(2) analysis comes after s 32(1) ordinary interpretation.In considering the NZBORA methodology, Elias CJ opines that to apply the s 5 limitation before applying the s 6 interpretation 'distorts the interpretative obligation under s 6 from preference for a meaning consistent with the rights and freedoms in Part 2 to one of preference for consistency with the rights as limited by a s 5 justifi cation': Hansen Based on a structural analysis, s 7(2) must be part of the initial inquiry about whether a provision is 'compatible with human rights', with s 32(1) l analysis occurring after an unjustifi ed limitation has been identifi ed.For an analysis of the different r impacts on the judicial interpretative provision fl owing from the majority and the dissenting judgments in Hansen, see Geiringer, 'The Principle of Legality', above n 16, 92.158 Indeed, the centrality of identifying and justifying limits was highlighted in the Second Reading Speech: 'The charter will make sure that there is proper debate about whether proposed measures strike the right balance between the rights of Victorians and what limits can be justifi ed in a free and democratic society': to limit human rights in some circumstances'. 162This is explicit parliamentary intention that limiting rights was equally as necessary as protecting and promoting rights.This suggests that 'compatibility with human rights' encapsulates the three concepts of protecting, promoting and justifi ably limiting rights. 163The Explanatory Memorandum also acknowledges that s 7(2) is modelled on s 5 of the NZBORA, which envisages a role for limitations in assessing interpretation consistent with the guaranteed rights. 164ench CJ then accepts the Human Rights Law Centre's submission that the Canadian Supreme Court 'expressly declined to consider s 1 of the Canadian Charter when interpreting a reverse onus provision.It applied s 1 only when r considering whether the impugned law should be upheld'. 165Accordingly, proportionality was said to not be an interpretative function. 166This is not disputed, but does not further the argument.First, that s 7(2) is not part of the interpretive function is of no consequence -as discussed above, 167 neither s 1 nor s 7(2) are meant to infl uence interpretation; rather, they assess justifi cation after an initial t ordinary interpretation.Secondly, as discussed above, the analysis ignores the fact that remedial interpretation is available where a limitation is not justifi ed under l the Canadian Charter.Just because the s 1 or s 7(2) proportionality assessment r r not an interpretative function does t not preclude interpretation as a remedy -t an initial interpretation can be supplemented by remedial interpretation under statutory and constitutional instruments. 168French CJ's argument depends on the contested assumption that s 32(1) is a rule of ordinary interpretation and no regard d being paid to remedial interpretation under the l Canadian Charter.r r Excluding s 7(2) from the concept of 'compatibility of rights' by relying on a contested assumption then bolsters the arguments in favour of that very assumption.French CJ concludes: The logical structure of s 7(2) is such that it cannot be incorporated into the content of the rights and freedoms set out in the Charter.The r r compatibility which is to be sought in applying s 32(1) is compatibility 'with human rights'.Section 7(2) cannot inform the interpretive process which s 32(1) mandates.The question whether a relevant human right is subject to a limit which answers the criteria in s 7(2) can only arise if the statutory provision under consideration imposes a limit on its enjoyment.Whether it does so or not will only be determined after the interpretive exercise is completed. 169is is open to critique.First, the UK/NZ Method does not seek to 'incorporate' s 7(2) into the content of the rights -that is what qualifi cations do, not limitations.With qualifi cations, the scope of the right is altered (that is, reduced) to the extent of the qualifi cation, such that if legislation falls within the qualifi cation, no violation is found. 170With limitations, the full scope of the right is compared with legislation to assess whether a violation occurs.Section 7(2) assessment may then excuse that violation, but it does not alter the scope of the rights; justifi cation r excuses the limitation of the fully-constituted right. 171condly, s 7(2) is not intended to 'inform the interpretative process', whether s 32(1) is characterised as ordinary or remedial, and s 7(2) is only meant to operate 'after the interpretative exercise is completed'.Both of these arguments simply raise the question -is s 32(1) ordinary or remedial interpretation?Both the VCA Method and the UK/NZ Method recognise that s 7(2) is not applied until the challenged legislation is interpreted, compared with the rights, and the former encroaches the latter; but they differ on whether s 32(1) is part of the initial ordinary interpretation or the later remedial interpretation.French CJ's analysis does not necessarily favour one over the other.
Crennan and Kiefel JJ similarly approach s 7(2) as an ordinary interpretative task.Their Honours correctly acknowledge that rights are not absolute, that rights are read as subject to justifi able limitations, that s 7(2) has no infl uence on the interpretation of a statutory provision, and that if a limit on a right is justifi ed under s 7(2) there is compatibility between the provision and the Charter.r r 172 However, Crennan and Kiefel JJ held that the outcomes of s 7(2) analysis have 169 HCA Momcilovic (2011) 245 CLR 1, 44 [35] (emphasis added).On the same logic, his Honour concludes that s 7(2) will be excluded from s 36(2) when considering whether a provision can be interpreted consistently with a right, but may be relevant to the Court's decision whether to exercise the discretion to make a declaration: at 44 [36].170 For example, under ICCPR art 9 and ECHR art 5, every person has the right to liberty and security of the person, and to be free from arbitrary arrest -but this right is qualifi ed in specifi ed circumstances, such as non-arbitrary arrest, lawful detention after conviction by a competent court, or the detention of a minor for the lawful purpose of educational supervision: see ICCPR arts 8-10, 14; ECHR art 5. Qualifi cations impact on the defi nition of the right by reducing its scope -that is, a non-arbitrary arrest does not come within the defi nition of the right and does not constitute a violation of the right.See also Iain Currie and Johan de Waal, The Bill of Rights Handbook (Juta, 5 k th ed, 2005) 186-7.171 Crennan and Kiefel JJ make a similar mistake.Their Honours state that s 7(2) has 'an interpretive effect directed to the content of the Charter right rather than the statutory provision in question, which remains r unchanged' and that a justifi ed limitation is compatible 'because the Charter allows the right to be r viewed as reduced in a case where the limitation is justifi ed'; concluding 'that the Charter right has been r rendered compatible with the statutory provision following this adjustment': HCA Momcilovic (2011) 245 CLR 1, 219 [571]-[572].The fi rst diffi culty is that limitations do not impact on the content of the t right; rather, they excuse an encroachment on a fully-constituted right, as noted.The second diffi culty is the direction of the adjustment.With rights being a minimum guarantee, the adjustment is usually made to the statutory provision to render it compatible with the rights.no bearing on ss 32(1) and 36(2) -whether a limit is justifi ed or not, 'nothing follows from such a conclusion'. 173Their Honours continue: Despite the word 'compatible' appearing in s 32(1) … it cannot be concluded that the inquiry and conclusion reached in s 7(2) informs the process to be undertaken by the courts under s 32(1).If some link between ss 7(2) and 32(1) were thought to be created by the use of such terms in s 32, such a result has not been achieved: (a) because the process referred to in s 32(1) is clearly one of interpretation in the ordinary way; and (b) because s 7(2) contains no method appropriate to the ascertainment of the meaning and effect of a statutory provision.The notion of incompatibility inherent in s 32(1) can only refer to an inconsistency found by a process of interpretation and no more.And so far as concerns the Supreme Court's role under s 36(2), its terms confi rm that the concern of the Court is only with the question of whether a provision cannot be 'interpreted consistently' with a human right.There is no suggestion in s 36(2) that the test provided by s 7(2) is to play any part in the making of a declaration.… It is not possible to read s 7(2) so that it operates with s 32(1) or s 36(2).It is not necessary to determine whether it has any other consequences, although it is diffi cult to discern that it might.It might operate as a statement of principle directed to the legislature … 174 As with French CJ, their Honours' conclusions fl ow from their characterisation of compatibility as excluding limitations justifi cation, and s 32(1) as ordinary interpretation.Regarding compatibility, their Honours fail to address structural and textual arguments in favour of compatibility including the justifi cation assessment under s 7(2). 175Moreover, the conclusion that s 32(1) incompatibility arises only via interpretation depends on the conclusion that s 32(1) sanctions only ordinary interpretative processes -a contested characterisation at the crux of the dispute.Further, the use of 'consistently' rather than 'compatibly' in s 36(2) is not explained in the extrinsic materials. 176However, if the textual difference is used to deny a link between ss 7(2) and 36(2), the same argument can deny a link between ss 32(1) and 36(2).
Regarding s 32(1), it is correct that s 7(2) does not provide a method for ascertaining the meaning and effect of a provision, but how is this problematic?As Crennan and Kiefel JJ acknowledge, s 7(2) is not intended to impact on interpretation; rather, it is relevant to justifi cation.The need to fi nd an interpretative role for s 7(2) is because of their Honours' mischaracterisation of s 32(1).Indeed, the problems identifi ed by their Honours dissolve if s 32(1) is characterised remedially.If s 32(1) is activated after a right is limited according to pre-r Charter interpretative rules and only if that limitation is not justifi ed, something does f follow -that is, a s 32(1) remedial interpretation follows if it is possible and consistent with statutory purpose.Moreover, the links that were intended to be created between s 7(2), and ss 32(1) and 36(2), would be apparent.Further, compatibility would embody justifi ed limitations, properly refl ecting the text and structure of the Charter.Furthermore, s 7(2) would have a discernible role to play, r r which is important given that the Second Reading Speech states that s 7(2) 'will assist courts and government in deciding … is … justifi ed', 177 the Explanatory Memorandum describes it as of the key provisions in the Charter', 178 and the general principle that statutory words and sentences are to 'be given some meaning and effect'. 179e s 7(2) conclusions of the three judges are coherent and logical insofar as their assumptions are concerned.Internally logical arguments based on weak assumptions fail to convince.

Method
Crennan and Kiefel JJ reject the UK/NZ Method because it incorrectly requires s 7(2) analysis before s 32(1). 180Their Honours also reject the VCA Method for two reasons, both linked to s 7(2) analysis occurring before s 36(2). 181First, s 7(2) cannot be linked to s 36(2) because s 7(2) goes to 'compatibility' whereas s 36(2) goes to 'consistency'. 182Secondly, to link s 7(2) to s 36(2) may turn s 36(2) applications into 'abstract questions of law', which is beyond judicial power, This involves the interpreter exploring 'all "possible" interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights': at 464 [103].From a doctrinal r perspective, it is impossible to identify an interpretation that 'least infringes' a Charter right without: r fi rst, considering the scope of the rights and the legislation, and establishing whether the legislation limits a right; and secondly, considering whether the limitation is reasonable and demonstrably justifi ed.That is, answering step 1 includes full consideration of steps 2 and 3 of the VCA Method.How can an interpretation that 'least infringes' a Charter right be identifi ed without any discussion of the scope r of the rights said to be 'breached' (VCA Method step 2)?Moreover, how can an interpretation that 'least infringes' a Charter right be identifi ed without undertaking some form of limitations analysis r like s 7(2), particularly the less restrictive legislative means assessment under s 7(2)(e) (VCA Method step 3).The entirety of the VCA methodology is in truth contained in step 1, with steps 2 and 3 becoming superfl uous.For a similar analysis regarding the NZBORA, see Rishworth, above n 3, 333.182 HCA Momcilovic (2011) 245 CLR 1, 220 [576].This argument has been critiqued above.thereby posing constitutional separation of powers problems. 183Their Honours do not substitute a new method.t French CJ is silent about methodology.However, the VCA Method was 'tentatively' drawn from the principle of legality characterisation, including the non-role of s 7(2).This may lend implicit support to the VCA Method from French CJ's judgment.Implicit support for a 'tentative' methodology is, however, far from settled legal

Section 36(2)
French CJ held s 36(2) declarations do not involve exercises of judicial power, nor are they incidental thereto. 184Under federal jurisdiction, s 36(2) lies beyond the limits of Commonwealth judicial power. 185For state courts, however, his Honour held that declarations are not an invalid exercise of non-judicial power t because s 36(2) does not compromise the institutional integrity of the court. 186owever, French CJ held that s 36(2) declarations made by the Victorian courts cannot be appealed to the HCA under s 73 of the Constitution. 187ennan and Kiefel JJ held that, although the s 36(2) declaration power is not a judicial power, 188 it is incidental to an exercise of federal judicial power and thereby valid. 189Signifi cantly for their Honours, the validity of s 36(2) depends on there being no prior role for s 7(2): if the s 7(2) justifi cation 'process had been required it may well have been said that the Court was being asked to consider an abstract question of law … which has no legal consequence ' . 190 Considering state courts, Crennan and Kiefel JJ held that the process of reaching a conclusion about inconsistency does not involve functions incompatible with judicial power -'[t]he process involves an ordinary interpretive task'. 191ccordingly, s 36(2) is not an invalid conferral of non-judicial power on the 183 Ibid 224 [590].Were their Honours to alter their opinion on the operation of s 7(2) in later judgments, there would be implications for the validity of s 36( 2 state courts. 192Curiously, their Honours caution against s 36(2) being used in the criminal context because of its ability to undermine a conviction.Their Honours explicitly deny that declarations in criminal contexts impair institutional integrity, but they state that declarations 'will rarely be appropriate', and that 'prudence dictates that a declaration be withheld', in criminal contexts. 193Avoiding Unconstitutionality? French CJ's and Crennan and Kiefel JJ's narrow interpretations of the key provisions may be justifi according to the HCA's practice of preferring an interpretation that avoids unconstitutionality if such a construction is available. 194ndeed, as discussed below, Heydon J invalidated the entire Charter on the basis r of broad interpretations of the key provisions.However, there are two diffi culties with this.
First, the purpose of reading down a provision to preserve its constitutionality 'is to give effect so far as possible to Parliament's intention', and this depends on a 'judicial assessment' of whether the read-down provision 'is one that Parliament would have intended if the challenged provisions were to fail'. 195Provisions expressing the parliamentary intention validity of statutes by states, such as s 6(1) of the ILA, 196 may be applied 'so long as the … [read-down provision] has not been changed so as to make it something different from the law enacted by Parliament'. 197Arguably the narrow constructions their Honours gave the key provisions rendered them something different to that intended and enacted, and were thus not available. 198condly, in the context of severance, '[w]here … the resulting invalidation is substantial and would strike down key provisions of a comprehensive and integrated legislative measure, the invocation of statutory or constitutional 192 Passing comment on defects in legislation 'in the course of a permissible exercise of judicial power is "a function properly regarded as incidental to the exercise of the power"': ibid, quoting Every Act shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of the State of Victoria, to the intent that where a provision of an Act, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power and the remainder of the Act and the application of that provision to other persons, subject-matters or circumstances shall not be affected.principles of severance will be inappropriate'. 199At least for Crennan and Kiefel JJ, one must query reading down s 7(2) so that it has no operation with the key integrated provisions of ss 32(1) and 36(2).Invalidation with severance may be preferred to reading down a provision so that it is of no effect.

D Support for the UK/NZ Approach
The judgments of Gummow J (Hayne J relevantly concurring), 200 Bell J, and Heydon J more closely refl ect the UK/NZ Method.The constitutional implications of ss 7(2), 32(1) and 36(2) have a more explicit infl uence on these judgments, leading to mixed results.Three of the four judges uphold the validity of ss 7(2) and 32(1), with only one upholding s 36(2).
In brief, Gummow J rejects the VCA Momcilovic characterisation of s 32(1) and adopts the UK/NZ Method, thereby recognising a role for s 7(2).However, his Honour holds s 36(2) invalid for offending Kable, but severable from the Charter.r r Bell J recognises a role for s 7(2), envisages a remedial reach for s 32(1), and essentially adopts the UK/NZ Method.Her Honour holds that s 36(2) is a valid conferral of non-judicial power.Heydon J provides the fourth opinion supporting a role for s 7(2) and a strong remedial reach for s 32(1), which sits within the UK/NZ Method.However, the consequence of broadly characterising these provisions is their invalidation for violating Kable -indeed, his Honour invalidates the entire Charter.r r 1

Relationship between Sections 7(2) and 32(1)
All four judges held that 'compatibility with rights' includes an assessment of s 7(2) limitations.Their Honours rely on statutory interpretation of the Charter, r r rather than constitutional principles.
Gummow J notes the structure of the Charter, acknowledging that s 7(2) is in r r pt 2 which 'identifi and defi nes the rights', whilst s 32(1) sits in pt 3 'interpretation of laws'; and notes that pt 2 'operate[s] upon the provisions of Pt 3'. 201His Honour quotes with approval McGrath J: As between ss 5 [limitations] and 6 [interpretation] it will usually be appropriate for a Court fi rst to consider whether under s 5 there is scope for a justifi ed limitation of the right in issue.The stage is then set for ascertaining if there is scope to read the right, as modifi ed by a justifi able limitation, as consistent with the other enactment. 202ummow J held that '[s] 32(1) is directed to the interpretation of statutory provisions in a way which is compatible with the human right in question, as identifi ed and described in Pt 2, including, where it has been engaged, s 7(2)'; with the 'relationship between ss 32(1) and 7(2) … [being] thus similar to that between ss 5 and 6 of the [NZBORA [ [ ]'. 203 Bell J considers the VCA approach to pay 'insuffi cient regard to the place of s 7 in the scheme of the Charter', given its description in the Explanatory Memorandum 'as one of the "key provisions" of the Charter'. 204Her Honour notes that pt 2 commences with s 7(2), and held that '[t]he rights set out in the succeeding sections of Pt 2 are subject to demonstrably justifi ed limits', and that '[t]he Charter's recognition that rights may be reasonably limited and that their exercise may require consideration of the rights of others informs the concept of compatibility with human rights'. 205 supporting her conclusions, Bell J highlights that s 7(2) applies to the s 38 obligations on public authorities.One reason that 'compatibility' means 'compatibility with the rights as reasonably limited under s 7(2) is the improbability that the Parliament intended to make unlawful the demonstrably justifi ed acts of public authorities which happen to reasonably limit a Charter right' .r 206 This implicitly supports s 7(2) applying equally across the pt 3 provisions. 207Moreover, Bell J rejects the argument that proportionality assessment is inconsistent with interpretative processes.Her Honour held that 'if s 7(2) does not inform the interpretive function, there is no mechanism for the court in interpreting statutory provisions in a rights compatible way to recognise the need for rights to be read together', and such characterisation ignores that some rights contain internal limitations. 208Finally, Bell J accepts that 's 7(2) is part of, and inseparable from, the process of determining whether a possible interpretation of a statutory provision is compatible with human rights'. 209This characterisation is consistent with 'the central place of s 7 in the statutory scheme', and recognises 'that rights are not absolute and may need to be balanced against one another'. 2103 HCA Momcilovic (2011)  Heydon J held that 'in assessing what human rights exist before the s 32(1) process of interpretation is completed, it is necessary to apply s 7(2) to ss 8-27' -that is, '[t]he relevant rights are not those which correspond to the full statements in ss 8-27, but those which have limits justifi ed in the light of s 7(2)'. 211This approach sanctions both s 7(2)'s role in assessing the 'compatibility of rights' and the UK/NZ Method.
His Honour justifi es this interpretation by focusing on the principal operative provisions of the Charter -s 28(1) statements, s 32(1) interpretation and s 38 r obligations on public authorities.Were s 7(2) to have no impact on 'compatibility', it 'would have no application to the principal operative provisions of the Charter', which would be 'a result' given that s 7(2) is the fi rst substantive provision in the fi rst substantive Part of the Charter, and immediately precedes the list r of rights that Parliament cally seeks to protect' . 212eydon highlights the improbability that the 'framers of legislation could have intended to insert a provision which has virtually no practical effect' . 213His Honour also refers to the Explanatory Memorandum 214 and the Second Reading Speech, which explicitly states that '[w]here a right is so limited, then action taken in accordance with that limitation will not be prohibited under the charter, t and is not incompatible with the right' . 215ydon J then invalidates s 7(2) because it impermissibly imposes legislative tasks on judges: 216 's 7(2) confers functions on the Victorian courts which could not be conferred on a court' 217 in the Kable sense.Given 's 7(2) is part of the process contemplated by s 32(1)', s 32(1) is invalid, triggering the invalidity of the entire Charter because 'the main operative provisions are connected with both r ss 7(2) and 32(1)'. 218

Section 32(1)
Gummow J addresses the constitutional issues surrounding s 32(1).Heydon J considers the constitutional issues after the breadth of s 32(1) is established by statutory interpretation.Bell J's analysis of s 32(1) and method is intertwined, and is discussed in the 'Method' section below.
In rejecting constitutional invalidation because of separation of powers concerns, Gummow J notes that 'purpose' in s 32(1) refers 'to the legislative "intention" revealed by consideration of the subject and scope of the legislation in accordance with principles of statutory construction and interpretation'. 219His Honour then refers to activities that '[fall] … within the constitutional limits of that curial process' 220 described in Project Blue Sky, being that '[t]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'; but that '[t]he context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning' . 221ummow J concludes '[t]hat reasoning applies a fortiori where there is a canon of construction mandated, not by the common law, but by a specifi c provision such as s 32(1)' . 222His Honour relies on the s 32(1) reference to 'purpose' and Project Blue Sky to conclude that s 32(1) does not confer a law-making function on the courts that is repugnant to judicial power. 223ploring these observations, Gummow J acknowledges that various factors 'may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning' -that is, ordinary t meaning may need to give way to an alternative meaning.This rule applies a fortiori to s 32(1).The question is: to what extent can meaning change to achieve rights-compatibility; or what is the strength of the remedial force of s 32(1)?Gummow J does not mention Ghaidan or other British jurisprudence; however, acknowledgment that a canon of construction may justify a meaning other than the literal or grammatical meaning is not substantially different to the British t jurisprudence, as discussed above. 224That s 3(1) 'allowed the court to depart from unambiguous statutory meaning' was the 'most important premise in Ghaidan'. 225bandoning literal and grammatical meaning echoes Lord Steyn's sentiment that judges could go so far as the 'subordinat[ion of] the niceties of the language of [the] section'. 226Lord Steyn has criticised the 'excessive concentration on linguistic features' , 227 and prefers an approach 'concentrating … in a purposive way on the importance of the … right' . 228reover, when referring to the canons of construction, Gummow J cites 'the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights'. 229Geiringer's reminder of the 'long history of common law courts utilising presumptions of interpretation to promote literal or even strained meanings in disregard of d statutory purpose' 230 is apt; with Gummow J confi rming this should apply 'a fortiori where there is a canon of construction mandated … by … s 32(1)'. 231ydon J rejects the VCA's characterisation of s 32(1). 232After assessing its history, 233 his Honour held that 's 32(1) goes well beyond the common law'indeed, 'there would be no point in s 32(1) unless its function was to go further than the common law principle of legality … The function of s 32(1) evidently is to make up for the putative failure of the common law rules'. 234Heydon J notes that s 32(1) legitimises: reliance on a much broader kind of 'purposive' interpretation going beyond the traditional search for 'purpose' as revealed in the statutory words.… The language of s 32(1) thus suggests that there is some gap between 'purpose' and 'interpretative meaning', by which 'purpose' controls 'interpretation' rather than merely being a refl ection of it.In effect s 32(1) permits the court to 'disregard the express language of a statute when something not contained in the statute itself, called its "purpose", can be employed to justify the result the court considers proper' … Ordinary statutory interpretation does not depend on the 'purpose ' of the statute, but its 'scope'.But s 32(1) calls for a different task … Section 32(1) commands the courts not to apply statutory provisions but to remake them -an act of legislation. 235aving accepted a broad reading of s 32(1) -indeed, one that appears to sanction a Ghaidan-type analysis 236 -his Honour held it was invalid for impermissibly conferring legislative functions on the judiciary. 237ydon J's conclusion that s 32(1) commands 'an act of legislation' is problematic.Similarly to other judges, his Honour failed to give any weight to 'so far as it is possible to do so'.This phrase of limitation differentiates legitimate acts of judicial interpretation from illegitimate acts of judicial legislation.Had this been recognised, his Honour may not have concluded that s 32(1) sanctions acts of legislation. 238

Methodology
Gummow, Bell and Heydon JJ support the UK/NZ methodology vis-à-vis ss 7(2) and 32(1).This fl ows from their Honours' characterisation of ss 7(2) and 32(1).Although Heydon J's approach sanctions the UK/NZ Method, his invalidated s 7(2) for impermissibly conferring legislative tasks on judges in the Kable sense. 239mmow J approves the UK/NZ Method, subject to s 36(2) invalidation.His Honour's structural analysis contemplates s 7(2) analysis before s 32(1).Moreover, Gummow J equates ss 7(2) and 32(1) with ss 5 (limitations) and 6 (interpretation) of the NZBORA, and accepts the majority methodology from Hansen, which is refl ected in the UK/NZ Method. 240Finally, Gummow J's reasoning on the facts employs the UK/NZ Method. 241ll J had no constitutional problems with the UK/NZ Method.Having held that s 7(2) informs 'compatibility', Bell J then accepts the UK/NZ Method, described in Charter language as follows: r If the literal or grammatical meaning of a provision appears to limit a limitation is demonstrably justifi ed by reference to the s 7(2) criteria [Rights Question 2].… If the ordinary meaning of the provision would place an unjustifi ed limitation on a human right, the court is required to seek to resolve the apparent confl ict between the language of the provision and the mandate of the Charter by giving the provision a meaning that is r compatible with the human right [Charter Enforcement Question 3] if it is r possible to do so consistently with the purpose of the provision [Charter Enforcement Question 4]. 242ll J held that the s 7(2) criteria 'are readily capable of judicial evaluation', 243 and that 'the purpose of the limitation, its nature and extent, and the question of less restrictive means reasonably available to achieve the purpose are matters that commonly will be evident from the legislation'. 244Her Honour recognises that '[p]rovisions enacted before the Charter may yield different, human rights r compatible, meanings in consequence of s 32(1)'. 245Her Honour highlights the reinterpretative limit of 'consistency with purpose', which 'directs attention to the intention, objectively ascertained, of the enacting Parliament.The task imposed by s 32(1) is one of interpretation and not of legislation'. 246Her Honour notes that s 32(1) 'does not admit of "remedial interpretation" of the type undertaken by the Hong Kong Court of Final Appeal as a means of avoiding invalidity'. 247ll J's comments on 'remedial interpretation' must be explored.Her Honour relies on the part of Lam Kwong Wai that discusses whether an implied power to make remedial interpretation exists under constitutional law, 248 and the relationship between remedial interpretation and common law principles of interpretation. 249n relation to modern statutory interpretation, the HKFCA states: [I]t is generally accepted that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing.A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention … What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained. 250he HKCFA opines that the 'very strong common law presumption … of construction in favour of constitutional validity … is subject to a similar limitation'. 251The HKCFA acknowledges that s 3(1) of the UKHRA and s 6 of the NZBORA go further by allowing a rights-compatible interpretation 'that is strained in the sense that it was not an interpretation which the statute was d capable of bearing as a matter of ordinary common law interpretation', 252 but that such interpretations are subject to limitations, including that a rights-compatible interpretation must be 'possible ' '.Referring to Sheldrake v DPP, P P 253 Anderson and Bellinger, the HKFCA describes the limits of 'possible'.
r r 254 This is the discussion that Bell J cited.
In the discussion immediately following which is cited, in the context of the entrenched Basic Law, the HKFCA ventures that: [remedial] interpretation involves well-known techniques of severance, reading in, reading down and striking out.These judicial techniques are employed by the courts of other jurisdictions whose responsibility it is to interpret and pronounce on the validity and compatibility of legislation which is challenged on the ground that it contravenes entrenched or statute-based human rights … 255 For the HKFCA, 'remedial interpretation' 'involves the making of strained interpretations', and it proffers that '[t]he justifi cation for now engaging in remedial interpretation is that it enables the courts, in appropriate cases, to uphold the validity of legislation, albeit in an altered form, rather than strike it down', 256 again referring to the presumption of constitutionality.
It is unclear why her Honour chose to distinguish the Hong Kong jurisprudence, rather than directly tackle the British jurisprudence, which is discussed in Lam Kwong Wai.Ghaidan has not been expressly ruled out or ruled in.Nor is it clear why her Honour cites discussion of 'remedial interpretation' 'as a means of avoiding invalidity', 257 which is a constitutional issue.Under the Charter, the r r issue is compatibility not invalidity, and the HKFCA discusses compatibility only in obiter.Nor is the relevance of the decision clear, given that the ratio concerned the capacity to invalidate legislation under an entrenched instrument and the presumption of constitutionality. 258ll J has no issue with 'modern statutory interpretation' rules that allow words to be implied or read into a provision provided legislative intention is not undermined.However, her Honour does not favour 'remedial interpretation' in the sense of 'strained' interpretation, but the diffi culty is that the HKFCA spoke of two versions of 'strained' interpretation.One results in invalidity, 259 and is expressly referred to by Bell J, although the Charter does not involve r invalidity.Another version goes to compatibility. 260With compatibility, her Honour confronts the same problems as other judges by not acknowledging the brake on judicial legislation imposed by 'so far as it is possible to do so'.Bell J must clarify.any event, the British and Hong Kong jurisprudence may be a distraction.Most of her Honour's reasoning relies on the NZBORA, including the methodology, and her application of the Charter to the reverse onus provision is consistent with r Hansen. 261

Section 36(2)
Gummow and Heydon JJ depart with Bell J on the constitutionality of s 36(2).Gummow J held that s 36(2) was neither a judicial power, nor incidental thereto. 262is Honour held that s 36(2) declarations do not have dispositive effect, as is apparent under s 36(5), 263 and that to characterise s 36(2) as advisory would result in Wilson-style 264 incompatibility. 265Gummow J concludes that s 36(2) 'is incompatible with the institutional integrity of the Supreme Court and therefore … invalid', as are the related ss 33 and 37. 266  Heydon J held that s 36(2) impermissibly conferred non-judicial power on a Chapter III court in violation of separation of powers under Kable.His Honour characterised s 36 as 'merely advisory in character', which is not a judicial function or incidental thereto. 268Accordingly, s 36, and the related ss 33 and 37, were invalidated.By way of contrast, Bell J agrees with French CJ on s 36(2) -that it confers non-judicial power that does not violate Kable, but that declarations cannot be appealed to the HCA. 269

E Rationes Decidendi?
The multiplicity of views on the proper and constitutional operation of the key provisions on rights-compatibility of legislation is complex.On one hand, three VCA judges and French CJ support s as a codifi cation of the principle of legality and the VCA Method.Crennan and Kiefel JJ support aspects of this characterisation (s 32(1) as an ordinary rule of statutory construction), but not other aspects (s 7(2)'s role in assessing legislation and the VCA Method).
On the other hand, three individual Supreme Court Justices and four High Court Justices support the essentials of the UK/NZ Method, which includes s 7(2) justifi able limitations within the conception of 'compatibility with rights', and recognises s 32(1) as a special rule of remedial interpretation.However, Heydon J found this conception of the Charter to be unconstitutional.Moreover, these r judgments are less clear on the strength of the remedial reach of s 32(1), generally not explicitly sanctioning Ghaidan and seeming more comfortable with the NZBORA and Hansen.Within this coalition, three High Court Justices found s 36(2) to be unconstitutional.
One certainty emerges: the majority were comfortable aligning the Charter with r the NZBORA, but not the UKHRA -indeed, fi ve judges highlight the textual differences between ss 3(1) and 32(1), and the different constitutional settings. 270lthough textual and constitutional differences also exist between the Charter/ r r Australia and the NZBORA/New Zealand, a closer analysis of the NZBORA and its jurisprudence may prove more fruitful in the future, than debates about Ghaidan-radicalism versus Wilkinson-reasonableness. to rely on VCA Momcilovic. 271The reaction of the Victorian superior courts will be analysed, with judgments falling into three categories: fi rst, judgments that follow VCA Momcilovic based on French CJ; secondly, a judgment that expands upon the principle of legality characterisation from VCA Momcilovic; and thirdly, judgments that suggests s 32(1) reaches beyond a codifi cation of the principle of legality.

A VCA Momcilovic
In Slaveski,272 Warren CJ, Nettle Redlich JJA summarised the different approaches in HCA Momcilovic, searching for a ratio on s 32(1).Their Honours note that all judges except Heydon J held: that s 32(1) does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision … in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky … 273 Their Honours opine that HCA Momcilovic indicated that 'the effect of s 32(1) is limited', and cited from French CJ's opinion that s 32(1) is a codifi cation of the principle of legality. 274Their Honours summarised French CJ's judgment into four rules.First, 'if the words of a statue are clear, the court must give them that meaning'; second, '[i]f the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question'; third, '[e]xceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision d if the grammatical construction would contradict the apparent purpose of the enactment'; and fourth, '[e]ven if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment'. 275nally, their Honours noted the lack of a clear ratio for s 7(2), 276 but held that '[i] t is unnecessary to decide whether … the Court of Appeal is bound to follow its own decision in Momcilovic unless satisfi ed that it is clearly wrong'. 277xamining Slaveski, the analysis of HCA Momcilovic highlights the diffi culty of identifying any ratio, let alone statutory construction under Project Blue Sky as the s 32(1) ratio.Moreover, Project Blue Sky allows strained interpretation, similar to Ghaidan, which is not adequately explored.Further, it is misleading to discuss s 32(1) in isolation from methodology, which is intimately linked.French CJ implicitly sanctioned the VCA Method, giving s 32(1) no remedial reach.However, the VCA Method was rejected by all other judges.Crennan and Kiefel JJ rejected it without suggesting a replacement method, whilst Gummow (Hayne J concurring), Bell and Heydon JJ all essentially approved of the UK/NZ Method, which gives s 32(1) remedial reach.Finally, and relatedly, the disparate views on the interconnecting provisions must be accounted for.To promote French CJ's characterisation as representative of the HCA ignores the signifi cant differences in opinion amongst the judges on ss 7(2) and as does seeking to identify a ratio given such disparity.
In Noone, 278 Warren CJ and Cavanough AJA presented a fuller picture of the divisions in HCA Momcilovic on s 7(2), identifying 'a 4:3 majority in the High Court that s 7(2) informs the s 32(1) interpretative task'. 279However, their Honours opined that because Hayne and Heydon JJ dissented on the fi nal orders, their judgments 'could not form part of the ratio of Momcilovic and hence there is no ratio on this point in the High Court'. 280 contrast to Slaveski, Warren CJ and Cavanough AJA explore whether the VCA is bound to follow its decision in VCA Momcilovic.Their Honours refer to Green v The Queen, where Heydon J 'discussed the principle that an intermediate appellate court should follow its earlier judgments, unless satisfi ed that the earlier judgment is clearly wrong'. 281However, Green gave no guidance where there was a non-binding HCA majority opinion against the earlier appellate court, where the HCA overturns the earlier appellate court, and whether it is enough that a majority of the HCA disagrees with the earlier judgment. 282Their Honours were not required to answer these issues, so took the discussion no further.Similarly, Nettle JA could not discern a majority view on s 7(2) from HCA Momcilovic; 283 but in contrast, his Honour preferred to follow the VCA Momcilovic 'approach until and unless the High Court determines that it is incorrect'. 284ven that the s 7(2) issue is an essential aspect of the correct methodology, and that the methodology dictates whether s 32(1) is part of ordinary or remedial interpretation, determining the proper operation of s 7(2) is vital.This issue must be resolved as a matter of urgency.

B Section 32 as the Principle of Legality
In PJB v Melbourne Health,285 assuming that the VCA Momcilovic decision was correct, Bell J explored the meaning of the principle of legality.This analysis has implications where interpretative choices are available, and for the interactions of rights and limitations.Having traced the history of the principle across British and Australian jurisprudence, his Honour summarises its content: the principle of legality is a strong presumption that legislative provisions are not intended to override or interfere with fundamental common law rights and freedoms and basic human rights.The presumption is displaced only by express language or necessary implication indicating unambiguously and unmistakeably that the legislation was intended to have this effect.The application of the presumption is not triggered by ambiguity in the meaning of the statutory language … Applying this principle to legislation which unmistakably intends some interference to be authorised but the scope of the permitted interference is in issue, it is fi rst necessary to identify the right or freedom which is said to be infringed and consider the importance of the interests which it protects in the particular circumstances.Then it is necessary to identify the nature and extent of the interference by, and the purposes of, the statutory provisions in question.If the interference complained of goes beyond what is shown to be reasonably necessary to meet a substantial and pressing need or legitimate aim, the proper interpretation will be that the interference is beyond the scope of the provision.In that regard, the more substantial is the infringement with the right or freedom, the more is required to show that the interference is necessary to meet the aims postulated and the interference should be the least necessary for that purpose. 286ll J highlights that proportionality-type analysis is central to interpretation under the principle of legality. 287Moreover, the factors for assessing the scope of permitted interferences are similar to the s 7(2) factors.If this is correct, it is unclear how s 7(2) factors play no role in ordinary interpretation -based on s 32(1), the ILA and common law principles -as per French CJ, Crennan and Kiefel JJ, and VCA Momcilovic.Moreover, it requires a rethink of the VCA Method.

C Section 32 beyond the Principle of Legality
In WK, K K288 Nettle JA acknowledges that HCA Momcilovic did 'not yield a single or majority view' 289 on s 32(1).His Honour considers French CJ, and Crennan and Kiefel JJ to have adopted a view similar to VCA Momcilovic, but that Gummow, Hayne and Bell JJ 'took a broader view of s 32, which attributes greater signifi cance and utility to s 7'. 290His Honour did not have to choose between the two approaches, 291 and did not express a preference.Yet Nettle JA's judgment is signifi cant for recognising the impact s 7(2) characterisation has on s 32(1) t characterisation -that is, the HCA Momcilovic judgments cannot be reduced to one ratio based on one provision.
In Taha,292 Tate JA refers to and cites from French CJ's judgment, and then states that 'the proposition that s 32 applies to the interpretation of statutes in the same manner as the principle of legality but with a broader range of rights in its fi eld of application should not be read as implying that s 32 is no more than a "codifi cation" t of the principle of legality '. 293 Her Honour notes that 'this would be to misread the reasoning of the High Court', and 'to overlook the … observation[s] made by Gummow J (with whom Hayne J relevantly agreed)', 294 citing the above-quoted passage in which Gummow J discusses legislative intention, Project Blue Sky, and departures from the literal or grammatical meaning. 295Tate JA concluded that, although six members of the HCA decided that s 32(1) was not analogous to s 3(1) of the UKHRA, and that the statutory construction techniques of Project Blue Sky are favoured: [n]evertheless, there was recognition that compliance with a rule of interpretation, mandated by the Legislature, that directs that a construction be favoured that is compatible with human rights, might more stringently require that words be read in a manner 'that does not correspond with literal or grammatical meaning' than would be demanded, or countenanced, by the common law principle of legality. 296ate JA did not need to take the matter further because it was 'suffi cient to treat s 32 … as at least refl ecting the common law principle of legality'.t 297 Such nuanced observations concerning the Charter are welcome.Deeper analysis r of the decisions of Bell and Heydon JJ may take Victorian courts even further from the principle of legality.

D Assessment
The reliance by Victorian judges on the 'tentative views' in VCA Momcilovic as confi rmed by French CJ is understandable given the confl icting multiplicity of views of the HCA, but it is lamentable.The Victorian superior court's response to HCA Momcilovic fails to acknowledge the signifi cant differences in reasoning between the different judgments, and the differing implications for key provisions and their interaction with other key provisions that fl ows from the different reasoning.Fortunately, Nettle and Tate JJA have recognised the distinctions of opinion on s 32(1), and numerous judges recognise the diffi culties in resolving the operation of s 7(2).

V CONCLUSION
The issues before the VCA and its reasoning differed from the HCA -the former focused on the meaning of key provisions based on the intention of the Charterenacting Parliament, with the latter additionally focussing on the constitutionality of the provisions in possible violation of traditional constitutional relationships and the implied separation of judicial powers under the Constitution.However, both decisions highlight broader tensions between fundamental underpinnings within our constitutional settlements.
In order to avoid perceived judicial acts of legislation, VCA Momcilovic emasculated the reach of s 32(1) such that it merely codifi es the principle of legality.This not only denies Parliament's capacity to design rights legislation beyond rubber-stamping judge-made common law, it arguably was an act of judicial activism by handing back power that Parliament intended the judiciary to have -a blow to parliamentary sovereignty that the Charter was designed to r protect. 298e decision in HCA Momcilovic also challenges democratic ideals.A democratically-sanctioned attempt to protect rights has been at best undermined, and at worst invalidated, by a mixture of judicially-developed constitutional relationships and judicially-sanctioned implications in our Constitution.Regarding the latter, the judicial development of the implied separation of judicial powers is a welcome bulwark against executive and parliamentary incursions on rights within the largely rights-unfriendly Constitution. 299However, its legitimacy must be questioned when a back-door, judicially-sanctioned rights principle invalidates or emasculates a front-door, democratically-sanctioned rights instrument.This article has promoted the UK/NZ Method and critiqued the VCA Method, both in terms of historical, contextual, textual, structural, and policy arguments, as well as in relation to parliamentary intention, preserving parliamentary sovereignty, and human rights doctrine.Without any further test cases, there is scope for accepting Heydon J as a fourth judgment in favour of the UK/NZ Method, providing a majority in favour of this model.Unlike the VCA, the HCA had the benefi t of full argument these matters, and is thereby a more legitimate judgment to reference.
[2007] 3 NZLR 1, 9 [6], quoted in VCA Momcilovic (2010) 25 VR 436, 466 [108].Elias CJ did 'not think that approach conforms to the purpose, structure and meaning of the … [NZBORA] as a whole': Hansen [2007] 3 NZLR 1, 9 [6], quoted in VCA Momcilovic (2010) 25 VR 436, 466 [108].Elias CJ's view was dependant on the structural fact that the limitation and l interpretation provisions are contained in pt 1 of the NZBORA, whereas the rights are contained in pt 2: Evans and Evans, Australian Bills of Rights, above n 157, 100 [3.43].By contrast, Evans and Evans highlight that the rights and limitations provision under the Charter are r structurally contained in pt 2, with the interpret ation provision being in pt 3: at 100 [3.43].

299
There are a handful of express rights in the Constitution: the acquisition of property on just terms 51(xxxi)); the right to trial on indictment by jury (s 80); the freedom of religion (s 116); and the right to be free from discrimination on the basis of interstate residence (s 117).There are also two implied limits on the power of the Parliament and executive: the implied separation of judicial power from the executive and Parliament (Boilermakers' Case( (  94 CLR 254) and the freedom of political communication (Lange v Australian Broadcasting Corporation ( ( (1997) 189 CLR 520).
and Ghaidan based on the Second Reading Speech, Explanatory Memorandum and parliamentary debate, see Julie Debeljak, 'Who Is Sovereign Now?The Momcilovic Court Hands Back Power over Human Rights that Parliament Intended It to Have' (2011) 22 Public Law Review 15, 25-39, especially 32-39.16 Whether or not s 6 of the NZBORA and s 3(1) of the UKHRA achieve the same outcome is highly contested: see Claudia Geiringer, 'The Principle of Legality and the Bill of Rights Act: A Critical Geiringer, 'On a Road to Nowhere: Implied Declarations and the New Zealand Bill of Rights Act' (2009) 40 Victoria University of Wellington Law Review 613; Rishworth, above n 3, 326, 328, 348.Although, the fact of incompatibility 'is discerned from the Court's reasoning process rather than one that is positively proclaimed as some sort of formal declaration': at 328. 19 Ghaidan [2004] 2 AC 557, 570 [27] (Lord Nicholls).
This was recognised by Geiringer: '[a]t the heart' of the legal methodology of the majority in Hansen is 'a concern that the interpretative direction in section 6 should not be invoked to limit or subvert Parliament's deliberate and demonstrably justifi ed policy choices': Geiringer, 'The Principle of Legality', above n 16, 68.36 HRCC Report, above n 13, 15, 20-2; Department of Justice, Victoria, 'Human Rights Statement of Intent' (May 2005), reproduced in HRCC Report, above n 13, appendix B, 162; Offi ce of the Attorney-General, 'Victoria Leads the Way on Human Rights' (Media Release, 20 December 2005).
34 See ibid 31.See also Julie Debeljak, 'Balancing Rights in a Democracy: The Problems with Limitations and Overrides of Rights under the Victorian Charter of Human Rights and Responsibilities Act 2006' (2008) 32 Melbourne University Law Review 422.35 The best way to primarily preserve parliamentary sovereignty, whilst secondarily promoting rights, is to seek judicial involvement after a problem is identifi ed.The UK/NZ r Method, which allows judicial remedial intervention only after an r unjustifi ed limitation on rights is demonstrated, better preserves d parliamentary sovereignty than the VCA Method.purpose" do not occur in s 3 of the United Kingdom Act but they have been read in as a matter of interpretation': Lord Walker, 'A United Kingdom Perspective on Human Rights Judging' (2007) 8 Judicial Review 295, 297.39 VCA Momcilovic (2010) 25 VR 436, 464 [103].Section 32(1) is merely 'part of the body of rules governing the interpretive task': at 464 [102].
arose.HCA Momcilovic thus has implications for the Charter when a Victorian Court is exercising federal r All ER 948, 951 (Viscount Dilhorne).78 Chapter III courts are the High Court of Australia, other federal courts, and state courts that are vested with federal jurisdiction.79 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ('Boilermakers' Case').
106 HCA Momcilovic (2011) 245 CLR 1, 50 [50].Nor did Geiringer's central thesis support the fundamental underpinnings of the conclusion in VCA Momcilovic: Debeljak, 'Who Is Sovereign Now?', above n 15, 50.107 Debeljak, 'Who Is Sovereign Now?', above n 15, 50.108 Indeed, his Honour fails to give any meaning or effect to the phrase, which itself eschews the traditional interpretative obligation to give all words l some meaning and effect: see D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7 th ed, 2011) 49-50 [2.26].109 For example, Lord Woolf CJ in Donoghue [2002] QB 48 emphasised that when the court decides whether a re-interpretation of a legislative provision is 'possible', the courts 'task is still one of interpretation': at 72-3 [75].If the court must 'radically alter the effect of the legislation' to secure compatibility, 'this will be an indication that more than interpretation is involved': at 73 [76].
developed these ideas in the earlier case of Re S [2002] 2 AC 291, 313 [40].S 127 It should also be noted that these techniques are part of the ordinary statutory interpretation toolbox: see, eg, Pearce and Geddes, above n 108, 54-63 [2.32]-[2.40].
and the Second Reading Speech 133 indicate that Parliament attached no signifi cance to the difference, and the words 'interpreted' and 'read and give effect to' were used interchangeably.The phrases are also128In my opinion, R vA [2002]1 AC 45 is not even an instance of this.See Kavanagh, 'Unlocking the Human Rights Act', above n 22. 129 Lord Nicholls identifi es the 'essential feature' of the defi nition of 'spouse' as 'the cohabitation of a heterosexual couple', when considering whether a legitimate aim exists for justifying discrimination (art 14) in the legislative provision for social housing (art 8), and holds that 'the reason underlying this social policy … is equally applicable to the survivor of a homosexual couple', whom 'as much as a heterosexual couple, share each other's life and make their home together': Ghaidan [2004] 2 AC 557, 568[17].Lord Nicholls also acknowledges the primary object of introducing assured tenancies -to increase the number of properties available for renting in the private sector -when considering whether there is a justifi cation for extending protection to cohabiting heterosexual partners but not cohabiting homosexual partners.His Lordship holds that 'this policy objective of the Housing Act 1988 can afford no justifi cation for amending paragraph 2 [of sch 1 of the Rent Act 1977 (UK) c 42] 7 so as to include cohabiting heterosexual partners but not cohabiting homosexual partners': at 569 [20].Finally, his Lordship explicitly considers whether the rights-compatible interpretation of Rent Act 1977 (UK) 7 c 42, sch 1 para 2, so as to include cohabiting homosexual couples, was '[consistent] with the social policy underlying paragraph 2': at 572 [35].130 HCA Momcilovic (2011) 245 CLR 1, 210 [545], citing Zheng (2009) 239 CLR 446, 455-6 [28].131 HRCC Report, above n 13.The Report recommended the words 'a Victorian law must be read and given effect', and noted that this wording would provide the courts 'with clear guidance to interpret legislation t to give effect to a right': at 82 (emphasis added).t 132 Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic).The Explanatory Memorandum notes that the object of s 32(1) 'is to ensure that courts and tribunals interpret legislation to give effect to human rights', and that s 32(2) permits consideration of international t and comparative jurisprudence 'relevant to a human right in reading and giving effect to a statutory t provision': at 23 (emphasis added).133 Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1289-95 (Rob Hulls, Attorney- General).The Second Reading Speech refers to rights-compatible interpretation 'so far as it is possible to do so consistently with their purpose and meaning': at 1293 (emphasis added).
144 For example, the Parliament could have codifi ed the principle of legality as stated in any number of cases, used s 6 of the NZBORA, or used s 30 of the Human Rights Act 2004 (ACT) as it was worded at Hansen [2007]3 NZLR 1, 62[179](emphasis added).Their Honours' reliance on the interaction of ss 4, 5 and 6 in the NZBORA will only go so far, given that McGrath J supports the UK/NZ methodology and the joint judges explicitly reject this methodology: HCA Momcilovic (2011) 245 CLR 1,220[576] n 953.151 HCA Momcilovic (2011) 245 CLR 1, 217 [566].
A similar argument applies to s 30 reports by the Scrutiny of Acts and Regulations Committee, s 31 overrides, and s 38 obligations on public authorities. 161Moreover, the Explanatory Memorandum links s 7(2) with 'compatibility with rights'.It notes that '[t]he operation of … [s 7(2)] envisages a balancing exercise between Parliament's desire to protect and promote human rights and the need 156 Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1290 (Rob Hulls, Attorney-General).159 Victorian Government, Submission No 324 to Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Charter of Human Rights and Responsibilities Act 2006, 2011, 13-16 [39]-[51], appendix A, especially 14 [42], 15 [46].Moreover, s 28(4) provides that a statement of incompatibility is not binding on any court.The Explanatory Memorandum notes that s 28(4) 'makes clear that the Supreme Court has an independent role in determining questions … with respect to the t interpretation of statutory provisions, including provisions for which a statement of compatibility has been made': Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 21 (emphasis added).Linking statutory interpretation with statements of compatibility bolsters the argument that 'compatibility for human rights' means the same thing under ss 28 and 32(1).160 After all, one rule of statutory interpretation is 'that where a word is used consistently in legislation it should be given the same meaning consistently': Pearce and Geddes, above n 108, 119 [4.6].Pearce and Geddes quote from Hodges J in Craig, Williamson Pty Ltd vBarrowcliff [1915]VLR 450, 452: 'I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament'.161 See below nn 208-9, 213-16 and accompanying text.
HRCC Report, above n 13, 83, 88.See also Simon Evans and Carolyn Evans, 'Legal Redress under the Victorian Charter of Human Rights and Responsibilities' (2006) 17 Public Law Review 264, 271; George Williams, 'The Victorian Charter of Human Rights and Responsibilities: Origins and Scope' (2006) 30 Melbourne University Law Review 880, 902-3.If this is a drafting oversight, it is causing serious implications to be drawn for s 7(2).
245 CLR 1, 92[168].204Ibid247[678]n1095.205Ibid247-8[678].Indeed, her Honour states that her conclusions are 'consistent with the statement in the Preamble that human rights come with responsibilities and must be exercised in a way that respects the human rights of others' and that '[i]t accords with the extrinsic material to which the Court was Her Honour quotes the following from Blanchard J: It would surely be diffi cult to argue that many, if any, statutes can be read completely consistently with the full breadth of each and every right and freedom in the [NZBORA].Accordingly, it is only those meanings that unjustifi ably limit guaranteed rights or freedoms that s 6 requires the Court to discard, if the statutory language so permits.Ibid 250 [683] (emphasis in original), quoting Hansen [2007] 3 NZLR 1, 27 [59].
See also at 172[431], 174[436].For Heydon J, only a constitutional amendment via s 128 of the Constitution would allow an interpretative role to be conferred on the judiciary that violated separation of powers: at 173[433].
His Honour severs the invalid provisions, with the remainder of the Charter being valid.r 267 258 Perhaps it is because statutory and constitutional instruments are not that far apart -as discussed above, each will allow for remedial interpretation up to a point, and then require declarations of incompatibility or invalidity.259 That is, 'severance, reading in, reading down and striking out': Lam Kwong Wai (2006) 9 HKCFAR 574, 609 [71].260 That is, 'an interpretation which the statute was [not] capable of bearing as a matter of ordinary common law interpretation', subject to limits including possibility: ibid 607 [65].261 HCA Momcilovic (2011) 245 CLR 1, 250 [685].It must be noted that Bell J did not discuss Hansen or Relevantly, for state courts exercising non-Chapter III judicial power, Gummow J highlights that Wainohu (2011) 243 CLR 181 establishes that Wilson applies equivalently to state courts: at 96 [183].
Confronted with no clear majority in HCA Momcilovic, Victorian superior courts consider VCA Momcilovic to not be overruled and, to varying degrees, continue