Momcilovic v The Queen (2011) — Human Rights and the Victorian Charter
Introduction
Momcilovic v The Queen (2011) 245 CLR 1 is the leading High Court authority on the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) — Australia’s most comprehensive state human rights instrument. The case addressed the constitutional validity of the Victorian Charter, the interaction between the Charter and state criminal law, and the limits of the interpretive obligation imposed by s 32(1) of the Charter.
Facts
Vera Momcilovic was convicted of trafficking in a drug of dependence (methylamphetamine) under s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The trial judge directed the jury that, under s 5 of the Act, possession of a drug raised a reverse onus — the accused bore the legal burden of proving that they did not know that the substance was a drug of dependence.
On appeal to the Victorian Court of Appeal, Momcilovic argued that the reverse onus provision was inconsistent with the presumption of innocence protected by s 25(1) of the Charter. The Court of Appeal (Maxwell P, Weinberg JA and Bongiorno JA) issued a declaration of inconsistent interpretation under s 36 of the Charter, declaring that s 5 of the Drugs, Poisons and Controlled Substances Act was incompatible with the Charter.
Both Momcilovic and the Crown appealed to the High Court. The matters considered included:
- The constitutional validity of the Victorian Charter
- The proper interpretation of s 5 of the Drugs, Poisons and Controlled Substances Act
- The operation of the Charter’s interpretive obligation (s 32(1))
- The validity of the declaration of inconsistent interpretation (s 36)
The High Court’s Decision
The High Court delivered seven separate judgments, reflecting deep divisions on the Charter’s operation. The Court unanimously upheld the constitutional validity of the Charter, but the reasoning on the interpretive obligation and the declaration of inconsistent interpretation revealed significant differences.
Constitutional Validity of the Charter
The Court unanimously held that the Victorian Charter was constitutionally valid. The Charter does not confer judicial power on state courts beyond that permitted by Chapter III of the Constitution. Key findings included:
The interpretive obligation (s 32(1)) is a valid exercise of the “interpretation” of legislation — it does not confer legislative power on the courts.
The declaration of inconsistent interpretation (s 36) does not confer judicial power because it does not affect the validity of the impugned legislation or the rights of the parties. It is a mechanism for “dialogue” between the judiciary and the Parliament.
The Charter’s provisions are compatible with the Kable doctrine because they do not impair the “institutional integrity” of the Victorian courts.
The Interpretive Obligation (s 32(1))
Section 32(1) of the Charter provides:
“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.”
The High Court divided on the scope of this obligation. The majority (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, and Bell JJ) held that s 32(1) is a “legitimate” interpretive tool that requires courts to prefer, among available constructions, the one that is compatible with human rights. However, it does not permit a court to “rewrite” legislation or to give effect to a meaning that is “strained” or “artificial.”
French CJ drew a distinction between s 32(1) of the Victorian Charter and the interpretive obligation under the Human Rights Act 1998 (UK), which had been interpreted in Ghaidan v Godin-Mendoza [2004] 2 AC 557 to permit substantial departures from the text. His Honour held that the Victorian provision is more limited, requiring only that courts adopt a “rights-compatible” interpretation where the text is fairly open to such a construction.
The Reverse Onus Provision
A majority of the Court (Gummow, Hayne, Heydon, Crennan, Kiefel, and Bell JJ) held that s 5 of the Drugs, Poisons and Controlled Substances Act did not impose a legal burden on the accused. Rather, the provision imposed only an evidential burden — the accused must adduce or point to some evidence that they did not know the substance was a drug of dependence, after which the prosecution must prove knowledge beyond reasonable doubt.
This interpretation avoided the need to consider whether the reverse onus was compatible with the Charter. French CJ, however, held that s 5 did impose a legal burden but that this burden was a reasonable limit on the right to the presumption of innocence under s 7(2) of the Charter.
The Declaration of Inconsistent Interpretation
Section 36 of the Charter permits a court to make a declaration of inconsistent interpretation where a statutory provision cannot be interpreted consistently with a human right. The declaration does not affect the validity of the legislation — it is a “dialogic” mechanism that triggers a ministerial response.
A majority of the Court held that the Victorian Court of Appeal’s declaration was made without jurisdiction because s 36 does not apply to pre-commencement provisions. The Court also held that, even if the declaration had been within jurisdiction, it would not have been appropriate in the circumstances.
Significance
Momcilovic v The Queen is significant for several reasons:
Confirmation of Charter validity: The decision confirmed that state human rights charters are constitutionally valid and compatible with the Kable doctrine.
Limits of interpretive obligation: The Court clarified that the interpretive obligation in s 32(1) is a limited one — it does not permit courts to depart from the clear meaning of legislation.
Dialogue model: The Court endorsed the “dialogic” model of human rights protection, in which the judiciary identifies rights issues through interpretation and declarations, leaving the ultimate policy response to the Parliament.
Reverse onus: The decision clarified the distinction between legal and evidential burdens in the context of drugs legislation.
Subsequent Impact
Momcilovic has been influential in the interpretation of the Human Rights Act 2004 (ACT) and in debates about the adoption of a federal human rights charter. The case established that Australian courts will apply interpretive obligations conservatively, declining to adopt the expansive interpretive approach taken in the United Kingdom under the Human Rights Act 1998.
The decision also shaped the development of the Human Rights Act 2019 (Qld), which adopted similar interpretive and declaratory mechanisms to the Victorian Charter.
Conclusion
Momcilovic v The Queen (2011) is the leading Australian authority on state human rights charters. The High Court confirmed the constitutional validity of the Victorian Charter while limiting the scope of the interpretive obligation and emphasising the “dialogic” nature of the human rights framework. The decision has shaped the development of human rights protection in Australia and continues to influence the interpretation of state and territory human rights legislation.