Momcilovic v The Queen & Ors [2011] HCA 34

In Momcilovic v The Queen & Ors [2011] HCA 34 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). Whilst the High Court’s ruling was based around the operation of the Drugs, Poison and Controlled Substances Act (1981), the case has significant ramifications for the role of the Victorian Human Rights Charter.

The High Court reaffirmed the importance and validity of the Victorian Human Rights Charter and held that it “protects fundamental human rights and maintains parliamentary sovereignty.”  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 or subvert parliament’s intent.  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 decision was 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.”

Click to access momcilovic-v-the-queen-2011-hca-34.pdf

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