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Focus: High Court upholds validity of Victorian human rights legislation

22 September 2011

In brief: The High Court has upheld the constitutional validity of Victoria's human rights legislation but the six separate judgments provide varied guidance as to how the Victorian legislation should be applied in practice. Partner Annette Hughes , Senior Associate Rachel Nicolson and Lawyer Mark Hosking report.

• Background and decision
• Practical consequences for Charter interpretation
• Practical consequences for declarations of inconsistent interpretation
• Conclusion

Background and decision

The issues canvassed by the High Court in Momcilovic v The Queen¹ arose from a charge of drug trafficking originally heard in the County Court of Victoria.

In 2008, Ms Vera Momcilovic was convicted of trafficking in methamphetamines under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the Drugs Act). On appeal to the Court of Appeal,² Ms Momcilovic argued that s5 of the Drugs Act, which had been integral to her conviction, was incompatible with her right to be presumed innocent under the Charter. Ms Momcilovic argued that the Court of Appeal should apply s32 of the Charter, which requires that statutory provisions be interpreted in a way that is compatible with human rights, to interpret s5 in such a way that her conviction would not stand.

The Court of Appeal held that it could not use s32 of the Charter to depart from the words or underlying purpose of s5 of the Drugs Act, as s32 does not allow courts to depart from established understandings of the limits of statutory interpretation. On this basis, the Court of Appeal held that it could not interpret s5 of the Drugs Act in a way that was compatible with Ms Momcilovic's right to be presumed innocent, and upheld her conviction. The Court of Appeal went on to make a declaration under s36 of the Charter that s5 of the Charter could not be interpreted consistently with human rights.

On appeal to the High Court, Ms Momcilovic raised further questions concerning the interaction between the Charter, the Constitution and the Drugs Act. These included the potential inconsistency between the Victorian offence provisions and their Commonwealth equivalents under s109 of the Constitution, as well as the issue of whether the Charter invalidly requires Victorian courts to exercise non-judicial power.

A majority of the High Court upheld Ms Momcilovic's appeal, quashed her conviction and ordered a retrial on the basis that the County Court and the Court of Appeal had applied the Drugs Act incorrectly. Chief Justice French was the only member of the court who expressly relied on the Charter in reaching this conclusion.³ However, all of the members of the court considered the interpretation and constitutional validity of the Charter.

Practical consequences for Charter interpretation

Because of the varied positions adopted by the different members of the High Court, the judgments in Momcilovic do not provide a clear approach for Victorian courts and public authorities to apply when interpreting legislation in accordance with the Charter. However, it appears from the various judgments that the following principles have the support of a majority of the court:

• Section 32 of the Charter does not require courts or public authorities to depart from established understandings of the limits of statutory interpretation – that is, s32 does not allow courts or public authorities to read words in to a law, or to depart from the underlying purpose of a law in order to make it compatible with human rights.⁴
• Where the Charter requires:
  • Parliament to state that new laws are compatible with human rights (s28);
  • public authorities to act in a way that is compatible with human rights (s38); and
  • courts to interpret laws in a way that is compatible with human rights (s32),

the human rights referred to are not absolute, but are subject to the reasonable limits described in s7(2) of the Charter. Section 7(2) of the Charter forms part of the definition of the rights set out in Part 2 of the Charter – all Charter rights are subject to s7(2).⁵ Some members of the court noted that this mirrors the approach adopted under ss 5 and 6 of the New Zealand Bill of Rights Act 1990.⁶

Perhaps most importantly, with the exception of Justice Heydon, all members of the court held that ss 7(2) and 32 of the Charter were constitutionally valid. In doing so, the court rejected a broad interpretation of the scope of s32 and upheld the Court of Appeal's decision that interpretation under s32 reflects 'what courts have traditionally done'.⁷

Practical consequences for declarations of inconsistent interpretation

There was substantial disagreement between the members of the High Court about the circumstances in which the Supreme Court of Victoria could make a declaration of inconsistent interpretation under s36 of the Charter. In the minority, Justices Gummow, Hayne and Heydon held that ss 33, 36 and 37 of the Charter were constitutionally invalid, on the basis that s36 impermissibly impairs the institutional integrity of the Supreme Court, and that the three sections are not severable from each other.⁸

The majority of Chief Justice French and Justices Crennan, Kiefel and Bell upheld the validity of s36. It appears from the judgments that the following principles relevant to declarations of inconsistent interpretation have the support of a majority of the court:

• The making of a declaration under s36 involves the exercise of non-judicial power,⁹ but is constitutionally valid because it does not impermissibly impair the institutional integrity of the Supreme Court.¹⁰
• The Supreme Court should exercise its discretion to make a declaration under s36 with caution. It should not make a declaration where:
  • the inconsistency is reasonably justifiable under s7(2);¹¹ or
  • making the declaration would risk impairing the institutional integrity of the court (for example, in a criminal matter where the court would effectively be required to declare that a person's Charter rights had been violated, but at the same time uphold a conviction).¹²

The declaration of inconsistent interpretation made by the Court of Appeal was the first declaration ever made under the Charter. However, because a majority of the High Court held either that the declaration made by the Court of Appeal was invalid,¹³ or was valid but should not have been made,¹⁴ the declaration was set aside. It remains to be seen how the Supreme Court will approach s36 of the Charter in future.

Conclusion

The Victorian Government's Scrutiny of Acts and Regulations Committee tabled its four-year review of the Charter in the Victorian Parliament on 14 September 2011, less than a week after the High Court handed down its decision in Momcilovic. While the High Court's decision has settled some areas of Charter jurisprudence – particularly in relation to the constitutional validity of the Charter and the scope of the power to interpret legislation under s32 – many areas remain uncertain, and may even be amended before the High Court can consider them again.

Footnotes

1. [2011] HCA 34.
2. R v Momcilovic (2009) 265 ALR 751.
3. See Momcilovic [2011] HCA 34 at [73] (Chief Justice French). Further, even Chief Justice French noted that common law principles of statutory interpretation would give the same result in the absence of the Charter
4. See Momcilovic [2011] HCA 34 at [50]-[51] (Chief Justice French), [169]-[171] (Justice Gummow), [545], [581] (Justices Crennan and Kiefel), [684] (Justice Bell). Justice Hayne adopted Justice Gummow's reasoning on this point.
5. See Momcilovic [2011] HCA 34 at [168] (Justice Gummow), [415]-[427] (Justice Heydon) and [677]-[681] (Justice Bell). Justice Hayne adopted Justice Gummow's reasoning on this point.
6. See Momcilovic [2011] HCA 34 at [168] (Justice Gummow). Justice Hayne adopted Justice Gummow's reasoning on this point.
7. See R v Momcilovic (2009) 265 ALR 751 at 772.
8. See Momcilovic [2011] HCA 34 at [188] (Justice Gummow), [457] (Justice Heydon). Justice Hayne adopted Justice Gummow's reasoning on this point.
9. See Momcilovic [2011] HCA 34 at [89]-[91] (Chief Justice French), [178]-[184] (Justice Gummow), [457] (Justice Heydon). Justice Bell adopted Chief Justice French's reasoning on this point. Justice Hayne adopted Justice Gummow's reasoning on this point. Justices Crennan and Kiefel held that the making of a declaration is incidental to the exercise of judicial power. See Momcilovic [2011] HCA 34 at [584]-[586], [589] (Justices Crennan and Kiefel).
10. See Momcilovic [2011] HCA 34 at [95]-[97] (Chief Justice French), [597]-[605] (Justices Crennan and Kiefel). Justice Bell adopted Chief Justice French's reasoning on this point.
11. See Momcilovic [2011] HCA 34 at [36] (Chief Justice French). Justice Bell adopted Chief Justice French's reasoning on this point.
12. See Momcilovic [2011] HCA 34 at [604]-[605] (Justices Crennan and Kiefel).
13. See Momcilovic [2011] HCA 34 at [188] (Justice Gummow), [457] (Justice Heydon). Justice Hayne adopted Justice Gummow's reasoning on this point.
14. See Momcilovic [2011] HCA 34 at [604]-[605] (Justices Crennan and Kiefel).

For further information, please contact:

• Belinda ThompsonPartner, Melbourne
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