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

Article excerpt

[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.]


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


   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. …