Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors

(2012) 38 VR 569; [2012] VSCA 91

Victorian Court of Appeal

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Interrogate

Catchwords

1. Trade and Commerce
2. › Consumer protection
3. › Misleading or deceptive conduct
4. › Fair Trading Act 1999 (Vic) s 9(1)
5. › Statements on website advertising alternative cancer treatments
6. › Whether misleading and deceptive
7. › Whether merely permissible expression of opinion
8. › Whether diagnostic methods and treatments had conventional scientific support
1. Human Rights
2. › Charter of Human Rights and Responsibilities (Vic)
3. › Freedom of expression
4. › Section 15
5. › Interpretation of Fair Trading Act 1999 (Vic) s 9(1)
6. › Whether Charter required s 9(1) to include mens rea requirement
7. › Whether proscription of misleading conduct a lawful restriction on freedom of expression
8. › Section 15(3)
9. › Section 32(1)
10. › Section 7(2)
1. Statutory Interpretation
2. › Interpretive obligation under human rights charter
3. › Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(1)
4. › Interpretation compatible with human rights
5. › Consistently with purpose of statutory provision
6. › Whether interpretation defeating purpose of provision is 'possible'
7. › Relationship between s 32(1) and s 7(2)
8. › Momcilovic v The Queen (2011) 280 ALR 221
9. › Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Quick Take

The Charter of Human Rights and Responsibilities (Vic) does not require s 9(1) of the Fair Trading Act 1999 (Vic) to be construed as incorporating a mens rea element; such a construction would defeat the purpose of the provision. The proscription of misleading and deceptive conduct in trade and commerce is a lawful restriction on freedom of expression under s 15(3) of the Charter, being reasonably necessary to respect the rights of consumers. Website statements about alternative cancer treatments that implicitly convey scientific support or efficacy, where no such support exists, are misleading or deceptive notwithstanding that they may be characterised as expressions of opinion.