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Client Update: Victorian Charter of Human Rights – first 'declaration of inconsistent interpretation'

17 March 2010

In brief: The Victorian Court of Appeal today announced its intention to make the first declaration of inconsistent interpretation under section 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In R v Momcilivic, the court also accepted a new approach to interpreting legislation according to the human rights framework contained in the Charter. Partners Belinda Thompson (view CV) and Alex Cuthbertson (view CV) and Lawyer Katherine Cooke report.

Background to the appeal

The applicant, Vera Momcilovic, was convicted of the offence of trafficking drugs under s71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the Drugs Act). Section 5 of the Drugs Act reverses the onus of proof so that the occupier of premises in which drugs are found is deemed to be in possession of those drugs unless he or she 'satisfies the court to the contrary'. Ms Momcilovic was the owner of an apartment where a quantity of methylamphetamine was found. Her conviction gave rise to the question of whether s5 of the Drugs Act could be interpreted consistently with her right under s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) to be 'presumed innocent until proved guilty according to law'.

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The appeal

Allens Arthur Robinson played an instrumental role in the appeal, acting pro bono for the Human Rights and Law Resource Centre (the HRLRC). Allens assisted the HRLRC in its application for leave to appear as amicus curiae, and its submissions on the correct approach to the application of the Charter. In particular, the HRLRC argued that the legislative provision in question must first be examined under s32(1) of the Charter, to determine whether it may be interpreted consistently with the Charter rights, before the question of whether any infringement of those rights can be justified pursuant to s7(2) should arise. The Victorian Attorney-General and the Victorian Equal Opportunity and Human Rights Commission also intervened in the appeal.

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The Court of Appeal's decision

The Court of Appeal accepted the following methodology for the interpretation of ss32(1) and 7(2) of the Charter:

  • Section 32(1) of the Charter is not a 'special' rule of statutory interpretation, but rather a statutory directive that requires all persons engaged in the task of statutory interpretation to 'explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights'. The court noted that the Centre's submission to this effect was correct.
  • The issue of 'justification' under s7(2) arises only if it is not 'possible' to interpret legislation compatibly with human rights. The court rejected arguments advanced by the Attorney-General that the infringement of the presumption of innocence by s5 of the Drugs Act was a 'reasonable limit'.
  • Any infringement of human rights should be 'demonstrably justified' by clear, cogent and persuasive evidence. The court could not reach this conclusion in this case in the absence of any evidence that a reversal of the burden of proof was necessary for the effective prosecution of drug trafficking offences.
  • Where an infringement cannot be demonstrably justified, the court should grant a Declaration of Inconsistent Interpretation under s36, such declarations being 'central' to and 'exemplifying the dialogue model of human rights legislation'.

In reaching its conclusion, the court overruled the decision of Kracke v Mental Health Review Board [2009] VCAT 646. Allens Arthur Robinson was also involved in that case, again acting for the HRLRC which appeared as amicus curiae to make similar arguments concerning the correct approach to interpretation of the Charter.

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What next?

The Court of Appeal's decision in R v Momcilovic [2010] VSCA 50 (17 March 2010) has broad implications for all Victorian Government departments, statutory authorities and other entities who perform public functions on behalf of the State.

Allens Arthur Robinson regularly presents on Charter issues. A more detailed paper and presentation addressing the implications of the Court of Appeal's decision will be made available shortly. Please contact any of the following people if you wish to discuss these issues in more detail, or would like to participate in our presentations on Charter issues.

For further information, please contact:

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