September 12

High Court upholds Victorian Charter of Rights

By a narrow 4:3 majority, the High Court has upheld  the validity of a key section of the Victorian Charter of Rights which was enacted in 2006 under the previous Labor government. The judgement in the case in question, Momcilovic v The Queen, were handed down on 8 September.

The Charter sets out certain rights and directs the courts to interpret statutory provisions as far as possible in a way that is compatible with human rights. The court may also make a declaration a provision is incompatible with a human right. This does not make the statute provision invalid; it is intended to trigger a review or discussion of that provision.  


( Continued below)

Vera Momcilovic had appealed against her conviction for trafficking in a drug of dependence contrary to s 71AC of the Victorian Drugs, Poisons and Controlled Substances Act 1981.

Police raided her flat and found quantities of methylamphetamine  there. Under the law the onus was on Ms. Momcilovic to show the drugs were not hers. She and her partner claimed she did not know the substance was there.

(Section 5 of the Drugs Act provides that a substance on premises occupied by a person is deemed, for the purposes of the Act, to be in the possession of for the purposes of the Act, to be in the possession of that person unless the person satisfies the Court to the contrary.) 

On 23 July 2008, the appellant was convicted in the County Court of Victoria, after a trial before judge and jury, of the offence of trafficking in a drug of dependence, methylamphetamine, contrary to s 71AC of the Drugs Act.

…the Charter…

Victoria had adopted a Charter of Rights in 2006 which provides in section 25(1) that : "A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law."

Section 32(1) instructs courts that:"So 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."

Section  7(2) provides that a human right may be subject under law to such reasonable limits as can be justified in a free and democratic society based on human dignity, equality and freedom.

Section 36(2) of the Charter authorises the Supreme Court, when it is of the opinion that a statutory provision cannot be interpreted consistently with a human right, to make a declaration to that effect.

The declaration does not have any legal effect on the outcome of any proceedings before the Court nor on the validity of the law.

Mr. Chris Merritt reports in The Australian (9/9) that the  decision comes just weeks before a committee of the Victorian parliament is due to release its findings on a review of the Charter.

…bench divided…

The majority of four was divided three ways. Chief Justice Robert French and Justice Virginia Bell believed the declarations power under the Charter was valid, but that there could be no appeal to the High Court against such declarations.

Justices Susan Crennan and Susan Keifel also believed the declarations power was valid, but should not have been used in the case they were considering.

Justices William Gummow, Kenneth Hayne and Dyson Heydon found the provision invalid as it institutionally impaired the integrity of the Supreme Court.

Mr. Merritt reports  a government spokesman saying it would examine whether the ruling required changes to how government and public bodies operated under the Charter.


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