Momcilovic V the Queen (2011) 245 CLR I

By Tully, Stephen | Australian International Law Journal, Annual 2012 | Go to article overview

Momcilovic V the Queen (2011) 245 CLR I


Tully, Stephen, Australian International Law Journal


I Introduction

In Momcilovic v The Queen, (1) the High Court considered several issues of major public importance. (2) These included the effect of 'reverse onus' provisions and whether Victorian legislation was inconsistent with Commonwealth law and therefore invalid under s 109 of the Australian Constitution. This case note instead focuses on how key provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter') were construed and whether the operation of that Act altered the orthodox approach to statutory construction.

II Background

The appellant, an intellectual property lawyer, occupied an apartment with her partner. The prosecution alleged that their apartment was a minor amphetamine factory: methylamphetamine was stored in a bar fridge, in the crisper section of another refrigerator, and in a Moccona coffee jar in a kitchen cupboard. Drug paraphernalia was located, together with A$165 900 cash in a shoe box in the walk-in wardrobe.

The appellant was charged with having trafficked a drug of dependence. Section 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ('Drugs Ad) provides that a person who 'trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence'. (3) Under s 70 (1) (c), 'traffick' includes to 'have in possession for sale'. Section 5 provided that '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 ... unless the person satisfies the court to the contrary'. The appellant was unable to so satisfy the Court and was convicted.

The appellant argued before the Court of Appeal of the Supreme Court of Victoria that s 5 of the Drugs Act required only the discharge of an evidential burden, rather than a legal onus of proof. This proposition was said to be consistent with s 25 (1) of the Charter, which provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law. Section 32 (1) of the Charter provides that, so far as is possibly consistent with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. Under s 32 (2), international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered when interpreting a statutory provision. However, under s 7 (2), 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, taking into account all factors, including certain specified ones, such as the nature of the right. Under s 36 (2), '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'.

The Court of Appeal upheld the conviction and reduced the sentence, but declared that the 'reverse onus' provision of s 5 of the Drugs Act could not be interpreted consistently with the presumption of innocence under the Charter, and issued a s 36 (2) declaration. (4)

III The High Court of Australia Judgment

First, the High Court held by a six-to-one majority that s 32 of the Charier was valid. (5) The s 32 requirement that 'statutory provisions must be interpreted in a way which is compatible with human rights' referred to no more than the ordinary judicial task of statutory interpretation; that is, consideration of a provision's terms, context and purpose. (6) For courts, the 'task imposed by s 32 (1) is one of interpretation and not of legislation' to give effect to Charter rights. (7) Interpretation under s 32 (1) merely reflects 'what courts have traditionally done'. (8)

When applying s 32, human rights must be determined having regard to the reasonable limits to which human rights are subject under s 7 (2). …

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