Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights

Bateman, Will, Stellios, James, Melbourne University Law Review

[The High Court's decision in Momcilovic v The Queen is the first to consider the compatibility of the Charter of Human Rights and Responsibilities 2006 (Vic) with ch III of the Constitution. The decision will have significant implications for the continuing effectiveness of key provisions of the Charter, the Human Rights Act 2004 (ACT) and any future federal charter of human rights. This article analyses the decision and evaluates its implications for the dialogue model of statutory human rights protection in Australia. It also considers several controversial statements concerning the principles of federal jurisdiction that arise from the decision.]

CONTENTS

I    Introduction
II   Momcilovic v The Queen
III  The Charter
IV   Chapter III Implications
A    The Federal Separation of Judicial Power
B    Chapter III and the Kable Principle
C    Conferring Federal Jurisdiction on State Courts: Sections 39, 68
     and 79 of the Judiciary Act
D    Federal Jurisdiction in State Courts: Applicable Law and
     Constitutional Limitations
V    Chapter III and the Interpretive Principle
     A Validity and Operation of Section 32(1)
     B The Dissenting View of Justice Heydon
     C The Remaining Judges
     D Section 32: Conclusion and Prospects
VI   Chapter III and the Declaration Provision
     A Core Majority Conclusions: Is a Declaration Judicial in
       Nature or Incidental Thereto?
     B The Kable Challenge
     C The Application of Kable: Further Complications
     D Section 36 Declarations in Federal Jurisdiction
     E Additional Implications for the Human Rights Act 2004 (ACT)
VII  Three Issues Raised in the Judgment of Chief Justice French
     A The View of Chief Justice French on Declarations in
       Federal Jurisdiction
     B Appealing Declarations to the High Court under Section 73
       of the Constitution
     C State Provisions Directly Applying in Federal Jurisdiction
VIII Concluding Observations

I INTRODUCTION

   There remains a great deal of ignorance in the legal profession
   concerning federal jurisdiction, both in its constitutional
   outlines and its detailed application. This is so even among those
   whose legal practices oblige them to know better. ... [O]ne gets
   the impression from time to time that federal jurisdiction is
   exercised without those doing so appreciating it. (1)

When Vera Momcilovic first applied to the High Court for special leave to appeal following her conviction in the County Court of Victoria for trafficking in a drug of dependence, little did she realise that her appeal would raise a range of important constitutional questions. In fact, when the appeal was first presented to the High Court, no constitutional law claim was made at all. Ms Momcilovic's initial claim was that the trial court and the Victorian Court of Appeal had not interpreted certain Victorian criminal provisions consistently with the Charter of Human Rights and Responsibilities 2006 (Vic) ('Charter'). However, in the special leave hearing, French CJ, Crennan and Bell JJ pressed a range of constitutional points, with Crennan J observing that '[t]he case bristles with some constitutional issues which do not really surface in the submissions before us today.' (2) What then started as a case about the application of the Charter to Victorian criminal provisions spiralled into a major constitutional case, with four days of High Court hearings and interventions by the Attorneys-General for the Commonwealth, four states and the Australian Capital Territory.

The constitutional points raised by the bench during the special leave hearing all concerned the impact of ch III of the Constitution on key aspects of the 'dialogue' model of human rights protection underlying the Charter (and the Human Rights Act 2004 (ACT) ('HRA (ACT)')). By the time the appeal was heard, these ch III points had multiplied. This article will focus on these ch III issues and will consider the continuing effectiveness of key Charter provisions following the High Court's decision. While broad propositions and conclusions can be drawn, as will be explained, there are multiple layers of complexity arising from the six separate judgments which complicate the assessment of almost every issue. Thus, close and detailed analysis is often required to expose and explain the decision's implications. The Court covered a range of other issues concerning the interpretation of the Charter and the relevant criminal provisions. The Court also considered the constitutional question of whether the state provisions were inconsistent with federal criminal provisions relating to drug trafficking. (3) This article, however, is limited to considering the ch III implications for the Charter (and the HRA (ACT)).

II MOMCILOVIC V THE QUEEN

Ms Momcilovic was charged with an offence against s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ('Drugs Act'): 'trafficking in a drug of dependence'. Section 73(2) of the Drugs Act provides that the unauthorised possession of a certain quantity of a controlled drug 'is prima facie evidence of trafficking by that person in that drug of dependence.' A quantity of methylamphetamine in excess of the traffickable quantity was discovered by police at Ms Momcilovic's apartment, and this discovery formed the basis of the charge against her. (4)

Section 5 of the Drugs Act provides:

   any substance shall be deemed for the purposes of this Act to be in
   the possession of a person so long as it is upon any land or
   premises occupied by him or is used, enjoyed or controlled by him
   in any place whatsoever, unless the person satisfies the court to
   the contrary.

Ms Momcilovic was tried in the County Court of Victoria. The trial judge accepted the prosecution's argument that the effect of s 5 of the Drugs Act was to reverse the legal onus of proof, requiring Ms Momcilovic to positively prove that she did not know of the presence of the methylamphetamine in her apartment. (5) The jury was instructed accordingly, and a verdict of guilty was returned. (6) Ms Momcilovic was sentenced to two years and three months imprisonment. (7)

In applying for leave to appeal to the Victorian Court of Appeal, Ms Momcilovic argued that the interpretation of s 5 of the Drugs Act adopted by the trial judge in his direction to the jury was contrary to her human right to the 'presumption of innocence' provided for in s 25(1) of the Charter. (8) Ms Momcilovic argued that, under s 32 of the Charter, the trial judge was required to interpret s 5 compatibly with her human right, and that this required interpreting s 5 as imposing only an evidentiary burden, rather than a legal burden. (9) The Court of Appeal rejected this argument, holding that s 5 could only be interpreted as a reversal of the onus of proof, (10) and refused leave to appeal against conviction. (11) The Court of Appeal did, however, make a declaration of inconsistent interpretation under s 36(2) of the Charter--declaring that s 5 of the Drugs Act was incompatible with the human right to the presumption of innocence. (12)

Ms Momcilovic appealed to the High Court, arguing that the Court of Appeal had incorrectly applied the interpretive principle in s 32 of the Charter. As indicated, the High Court was also interested in a range of constitutional issues, most of which concerned the impact of ch III on the operation of the Charter. Stated shortly, a majority of the Court held that the deeming provision in s 5 was not applicable to s 71AC of the Drugs Act. (13) Consequently, Ms Momcilovic should not have been deemed to be in possession and, accordingly, her appeal was successful. The Court did, however, take the opportunity to consider, in detail, the constitutional issues that arose in the appeal. While the declaration of incompatibility was set aside, the Charter survived invalidation. However, the Court significantly undermined its future operation on the basis of constitutional principles located in ch III.

Three core ch III issues were agitated in Ms Momcilovic's appeal. First, whether ss 7, 32 or 36 of the Charter were invalid because of the Kable (14) principle. Secondly, if valid according to Kable, whether any of these provisions, particularly s 36, could be validly applied in federal jurisdiction. Thirdly, whether a declaration of inconsistency could be taken on appeal to the High Court.

On the first issue, a majority of the Court held that none of the provisions infringed the Kable principle. On the second, a majority held that s 36 cannot be applied when the Supreme Court of Victoria exercises federal jurisdiction. While the outcome of the Court's reasoning on these issues can be shortly stated, the reasoning of each of the six judgments produced by the Court is complex and requires close analysis. The result on the third issue was less clear and will be explained in Part VI of this paper.

Before considering the reasoning of the Court regarding the impact of ch III on the Charter provisions, it is worth reviewing the operation of the Charter and the system of federal jurisdiction established by ch III and the Judiciary Act 1903 (Cth) ('Judiciary Act').

III THE CHARTER

Based on the Human Rights Act 1998 (UK) c 42 ('HRA (UK)') and the HRA (ACT), the Charter is often said to give effect to a 'dialogue' model of human rights protection. (15) In pt 1 of the Charter, s 6(1) provides that '[a]ll persons have the rights set out in Part 2.' Part 2, entitled 'Human Rights', sets out the human rights to be accorded protection in Victoria. It also establishes, in s 7(2), a justification provision that provides that the human rights set out in pt 2 can only be subject to 'such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.'

Part 3, entitled 'Application of Human Rights in Victoria', provides the mechanisms for the protection of the human rights enumerated in pt 2. These mechanisms operate differently in respect of the three arms of the Victorian government. Sections 28-31 and 37 impose procedural requirements on the Victorian Parliament designed to safeguard human rights in the law-making process. Sections 38 and 39 impose obligations on Victorian 'public authorities' (including the executive) in respect of human rights, making it unlawful, subject to exceptions, for such bodies to act in a way that is contrary to the human rights in pt 2.

Sections 32 and 36 provide the Victorian judiciary with two mechanisms to safeguard human rights. The first is the rule contained in s 32(1): '[s]o 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 second, contained in s 36(2), empowers the Supreme Court of Victoria to make a declaration of incompatibility: 'if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.'

Importantly, s 36(5) provides that:

A declaration of inconsistent interpretation does not--

(a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or

(b) create in any person any legal right or give rise to any civil cause of action.

In short, a declaration has no impact on the pre-existing rights of the parties in dispute before the Court.

Prior to Momcilovic, commentary on the constitutionality of the Charter (and the similarly drafted HRA (ACT), and proposals for a similar scheme to be enacted by the federal Parliament) had focused on ss 32 and 36. (16) Opinion was deeply divided on whether the Charter fell foul of, either, federal separation of judicial power principles or the Kable principle, both derived from ch III of the Constitution. Before moving to consider the Court's judgment in Momcilovic, it is useful to outline the aspects of ch III and the mechanics of the federal judicial system that are relevant to an assessment of the validity of the Charter.

IV CHAPTER III IMPLICATIONS

A The Federal Separation of Judicial Power

The High Court has held that the vesting of Commonwealth judicial power in federal courts and courts exercising federal jurisdiction by s 71 of the Constitution entrenches separation of judicial power principles which consist of two limbs:

1 Only a court referred to in s 71 ('ch III court') can exercise Commonwealth judicial power;

2 A court exercising Commonwealth judicial power cannot exercise non-judicial power, or a power that is not incidental to a judicial power.

As will be explained further, it is the second limb that is relevant to the impugned provisions in Momcilovic. Although it was effectively established prior to the joint judgment of Dixon CJ, McTiernan, Fullagar and Kitto JJ in the famous Boilermakers' case, (17) this side of the separation of judicial power equation has become popularised as the Boilermakers' doctrine.

The crucial question for the application of Boilermakers" is whether a power is judicial in nature. If it is not, and it is not incidental to judicial power, then Parliament cannot confer such a power on a ch III court. However, Momcilovic concerned state legislation. In that context, ch III has two implications for state legislative power to enact human rights schemes. First, because of the inclusion of state courts in the ch III scheme as repositories of Commonwealth judicial power and federal jurisdiction, the High Court has held that there are limits to what powers and functions state Parliaments can give to state courts. Secondly, the Boilermakers' principle also has implications for what powers can be given by state Parliaments to state courts exercising federal jurisdiction. Because the complex details of the vesting of federal jurisdiction in state courts occupied a significant amount of the Court's attention in Momcilovic, a further explanation of these ch III features now follows.

B Chapter III and the Kable Principle

Starting with the decision in Kable, (18) the High Court has held that ch III limits the powers and functions that state Parliaments can confer on state courts. As will be explained further below, the Commonwealth Parliament can confer federal jurisdiction on state courts under s 77(iii) of the Constitution and, subject to exceptions and regulations, appeals to the High Court are guaranteed under s 73 from state supreme courts and state courts exercising federal jurisdiction. Thus, the High Court has held, state courts transcend their status as 'state courts' by their inclusion in the federal judicial system created by ch III and, accordingly, ch III affects the way that state Parliaments can deal with their courts.

While the scope of the Kable limitation has developed with much uncertainty, the overarching principle has always been that state Parliaments cannot confer powers or functions on state courts which are incompatible with the exercise of judicial power. The applicable tests have been refined to protect the essential characteristics of institutional integrity, (19) independence and impartiality, (20) and these ch III standards have been tied to the meaning of the words 'State courts' as they appear in ch III. (21) While the strength of the Kable principle appeared to experience a period of decline, it has rebounded with renewed vigour in recent years …

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Publication information: Article title: Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights. Contributors: Bateman, Will - Author, Stellios, James - Author. Journal title: Melbourne University Law Review. Volume: 36. Issue: 1 Publication date: April 2012. Page number: 1+. © 2008 Melbourne University Law Review. COPYRIGHT 2012 Gale Group.

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