High Court validates Victorian Human Rights Charter

By Rebecca Devitt

9 September 2011

Yesterday, the High Court of Australia handed down an historic decision in the case of Momcilovic v The Queen (2011) reaffirming the importance of the Victorian Human Rights Charter and held that it “protects fundamental human rights and maintains parliamentary sovereignty.”

In the case, Vera Momcilovic appealed against her conviction for drug trafficking in 2008. Ms Momcilovic was charged after living with a convicted trafficker who had stored drugs in her home. Under the Victorian Drug Act (1981) a person is deemed as possessing or trafficking drugs if they are found on the premises in which the person lives. Vera Momcilovic appealed to the High Court claiming that the law violated her right to the presumption of innocence under Victoria’s Human Rights and Responsibilities Act (2006).

The High Court considered the validity of Victoria’s Human Rights and Responsibilities Act, however its decision to quash Ms Momcilovic’s conviction was based on the court’s finding that Victoria’s courts had misconstrued how the Drugs, Poison and Controlled Substances Act (1981) operates.

Whilst the High Court’s ruling was based around the operation of the Drugs Act, the case has significant ramifications for the role of the Victorian Human Rights Charter. In a 6-1 majority, the court ruled that section 32 (1), which requires that “all statutory provisions must be interpreted in a way that is compatible with human rights”, does not empower the courts to radically re-interpret legislation.  Chief Justice Robert French stated that the provision “requires statutes to be construed against the background of human rights and freedoms set out in the Charter.”

The court also considered the question of whether Victorian Courts have the right to declare legislation inconsistent with the Charter and to bring this to Parliament’s attention. This provision has been widely cited by critics of the Human Rights Charter as an example of how the Charter subverts parliament. The High Court held that the Charter does no such thing, ruling by a 4-3 majority that the power  “conferred by parliament on the courts to make a declaration notifying parliament where legislation may be incompatible with human rights is valid.”

The High Court’s ruling on the validity of the operation of the Human Rights Charter is significant as the Victorian Parliament is due to release its findings on a review of the Charter within weeks. The decision has been welcomed by supporters of the Charter such as Greg Barnes who stated that the High Court’s remarks “put to bed much of the hysteria that is peddled by opponents of Australian human rights law. Victoria’s human rights charter, does not, contrary to silly claims by some media outlets, create outrageous rights.”

Phil Lynch, from the Human Rights Law Centre, said the High Court’s decision was particularly timely in light of the Victorian Government’s review of the Charter. “Any suggestion that the Charter shifts power to judges and usurps parliamentary sovereignty can be laid to rest. There is also no longer any doubt, if ever there was, that the Charter is valid and constitutional.”

The High Court’s ruling can be accessed here.

 

Latest

Review – Renewal: Five Paths to a Fairer Australia

By Georgia Cerni

Sophie Cousins’ book Renewal: Five Paths to a Fairer Australia is, in many respects, a proposal. For Cousins, the COVID-19 pandemic has provided Australians with an opportunity to reconsider the ways our society currently functions. Cousins aptly makes her case – while in some ways the pandemic reinforced burgeoning inequalities, it also presented us the chance to apply collectivist values to solve systemic problems.