Human rights vs the High Court: how far can a Charter go?

23 Nov 2011

The recent case of Momcilovic v The Queen involved an appeal by Vera Momcilovic against her drug trafficking conviction. Despite giving evidence that she had no knowledge of the drugs found in her apartment, and although her partner admitted that they were his, Momcilovic was convicted in 2008 as a result of a convergence of deeming provisions in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘Drugs Act’). In particular, section 5 of that Act provides that a substance found on the premises of a person is deemed to be in the possession of the person, unless he/she satisfies the court to the contrary. This provision, which is understood to place a legal onus on the defendant to disprove possession, runs counter to a defendant’s right to be presumed innocent. This right is protected by the Victorian Charter of Human Rights and Responsibilities 2006 (Vic) and formed the centrepiece of Momcilovic’s appeals in the Victorian Court of Appeal and subsequently, the High Court.

The appeal was ultimately successful in the High Court on the basis that the provision in the Drugs Act had been incorrectly applied to the drug trafficking offence in Momcilovic’s case. However, the judgment is significant for reasons that transcend that particular finding – most notably for the High Court’s examination of the validity and scope of provisions in the Victorian Charter. This was the first occasion on which Australia’s most senior court squarely engaged with the Victorian Charter and the case was widely anticipated as having significance not just for that enactment and the prospect of equivalent laws in other states but also for the constitutional viability of any future national charter or bill of rights. With those issues at stake, what did the Court actually find?

Rights-Compatible Statutory Interpretation

By a 6:1 majority, the High Court upheld the validity of section 32 of the Victorian Charter – a provision that requires courts to construe legislation in a way that is ‘compatible’ with human rights, so far as it is possible to do so consistently with Parliament’s purpose.

Notable, however, is the divergence of approaches taken by the six majority judges on the proper function of section 32, and in particular, its relationship with section 7 of the Victorian Charter. Section 7 provides that the human rights protected by later sections of the Charter are not absolute; rather, they may be subject to such reasonable limits as can be demonstrably justified in a free and democratic society. This raises the following question – is the operation of section 32 to be informed by section 7?

This question was answered in the negative by three of the six majority judges (Chief Justice French and Justices Crennan and Kiefel). On this view, the court should seek to apply section 32 of the Victorian Charter to achieve an interpretation of the impugned legislation that is ‘compatible’ with human rights in their absolute and unlimited form. If this is not possible (that is, the court cannot arrive at an interpretation that does not limit a human right, consistent with the purpose of the legislation), the court is then to ascertain whether the limit is ‘reasonable’ pursuant to section 7. Hence, section 7 has no role to play in the process of interpretation, and is only engaged after the meaning of the statute has been established, and for the purpose of determining whether the court is to issue a declaration of incompatibility.  

By way of contrast, the other three majority judges (Justices Gummow, Hayne and Bell) held that section 32 is to be informed by section 7. On this view, the court is to determine whether the impugned legislation limits a human right, and if so, whether that limit is ‘reasonable’ under section 7. If the limit is found to be unreasonable, the court is to apply section 32 in order to achieve an interpretation of the statute that does place reasonable limits on the right in question and is moreover consistent with the purpose of the legislation. Heydon J also took this approach; however, he did so only to find that section 32 was invalid for conferring an impermissible, non-judicial power on the courts.

So, although the High Court has confirmed the validity of section 32, its operation remains unclear. Allowing section 7 to inform the application of section 32 seems the preferable view as it provides section 32 with greater remedial scope. That is, in cases where it is not possible to interpret a statute so that it does not infringe a human right, section 32 would allow the court to construe legislation so that only ‘reasonable’ limits are placed on the right, rather than requiring the court to issue a declaration of inconsistent interpretation. In contrast the Victorian Court of Appeal’s adoption of the narrower approach to section 32 led it to conclude that section 5 of the Victorian Drugs Act was incompatible with Momcilovic’s right to be presumed innocent.


Declaration of Inconsistent Interpretation

The validity of such declarations of incompatibility was the second significant issue considered by the High Court in Momcilovic.  Specifically, the Court considered the validity of section 36 of the Victorian Charter, which empowers a court to issue a declaration of inconsistent interpretation if the impugned legislation cannot be interpreted so as to achieve a rights-compatible result. This mechanism is an important component of the ‘dialogue model’ of human rights protection: in this model, the court does not strike down legislation that is incompatible with human rights, but rather, alerts parliament to any such incompatibility. Parliament retains the ultimate power to determine whether the impugned provision is to be retained, amended or repealed.
By 4:3, the High Court upheld the validity of section 36. However, again, the majority judges took different approaches in arriving at this result. Justices Crennan and Kiefel held that section 36 was valid as an exercise of power incidental to judicial power. However, they held that a declaration should not have been made by the Victorian Court of Appeal in this proceeding. By way of contrast, Chief Justice French and Justice Bell held that section 36 was valid as an exercise of non-judicial function that could permissibly be conferred upon state courts.

The dissenting judges (Justices Gummow, Hayne and Heydon) held that section 36 was invalid, regardless of the level of the court, because it impermissibly impaired the constitutional integrity of the court by requiring it to perform a function incompatible with its exercise of judicial power derived from the Commonwealth Constitution. The finding of these three judges, combined with that of Justices Crennan and Kiefel, resulted in the setting aside of the declaration of inconsistent interpretation made by the Victorian Court of Appeal in this case.

It is notable that although the decision in Momcilovic confirms the power of state courts to issue a declaration of incompatibility, the same result would not apply at the federal level. When the decision of the three dissenting judges (that the power under section 36 cannot be validly conferred on any court) is combined with that of Chief Justice French and Justice Bell (who hold that section 36 involves a non-judicial power), it is evident that federal courts would not be able to make a declaration of incompatibility because this would breach the separation of powers entrenched in the Australian Constitution – a principle that applies at the federal, but not state, level.

Whilst this does not invalidate the entire concept of a national human rights charter – given that the power to issue a declaration of incompatibility can always be conferred on an independent, non-judicial body – the High Court decision appears to suggest that the dialogue model currently operating in Victoria and the Australian Capital Territory cannot be perfectly replicated at the federal level. 
All in all, the High Court judgment in Momcilovic provides a degree of clarity on the constitutional issues affecting the adoption and design of charters of human rights in Australia. However, as the range of competing views adopted by the High Court itself demonstrates, significant issues remain contested. We can expect the national, state and territory debates on the introduction of formal human rights protections to continue for so long as that is the case.


Fiona Chong is the Social Justice Intern, Gilbert + Tobin Centre of Public Law, UNSW.

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