DPP v Smith: A Fresh Appetite To Consider Section 32(1) Of The Charter?

Kent Blore

The High Court handed down Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (Momcilovic) well over a decade now. That means it has been more than a decade since the High Court last grappled with the difficult questions of when and how legislation should be interpreted in a way that is compatible with human rights. The High Court recently returned to these vexed questions in the case of DPP v Smith [2024] HCA 32; (2024) 98 ALJR 1163 (Smith).

The issue in the case was whether a broad statutory discretion authorised a trial judge to meet privately with the complainant of child sex offences in the absence of the accused before she gave her evidence. That begged the question of whether the broad statutory discretion needed to be read down to ensure that it was compatible with human rights, including the right to a fair hearing, as required by the interpretive clause in s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).