High Court affirms constitutionality of Charter and considers key interpretative provisions

Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

Summary

The High Court's decision in Momcilovic v The Queen upholds the constitutional validity of the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, the six separate judgments provide varied guidance as to how the Charter should be applied in practice.

The ratio of the High Court's decision in Momcilovic turns on the interaction between sections 5, 71AC and 73(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). With the exception of Heydon J, all members of the Court held that the phrase “possession for sale” (which forms part of the definition of “trafficking” in section 71AC of the Drugs Act) is a compound expression which does not attract the operation of the deeming provision in section 5 of the Drugs Act which has the effect of reversing the onus of proof. Because section 5 does not apply, the Court held that the trial judge had misdirected the jury as to the matters that the prosecution was required to prove and ordered a retrial.

French CJ was the only member of the Court who expressly relied on the Charter in reaching this conclusion, and even he noted that the common law principle of legality would give the same result in the absence of the Charter. As such, the Court's more substantive discussion of the Charter in Momcilovic is strictly obiter, and could be altered or clarified in future High Court decisions involving the Charter.

Practical consequences for Charter interpretation

Because of the varied positions adopted by the different members of the Court in Momcilovic in relation to the operation of the Charter, the judgments do not provide a clear approach for Victorian courts to apply when interpreting legislation in accordance with the Charter. However, it appears from the various judgments that the following principles relevant to the interpretation of legislation in accordance with the Charter have the support of a majority of the Court:

Decisions from comparative jurisdictions (the United Kingdom, Canada, South Africa, Hong Kong and, to a lesser extent, New Zealand) are of limited relevance when interpreting the mechanical provisions of the Charter and the relationships between those provisions (supported by French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

  • Section 7(2) of the Charter forms part of the definition of the rights set out in Part 2 of the Charter. That is, all Charter rights are subject to section 7(2) (supported by Gummow, Hayne, Heydon and Bell JJ).
  • The word ‘compatibly’ has a consistent meaning across sections 28, 32 and 38 of the Charter (supported by Heydon and Bell JJ and, by implication from their reasoning more generally, Gummow and Hayne JJ).
  • Section 32(1) of the Charter requires that statutory provisions be interpreted in a way which is compatible with human rights as identified and described in Part 2 of the Charter, including, where it has been engaged, section 7(2) (supported by Gummow, Hayne, Heydon and Bell JJ).
  • Section 32(1) of the Charter does not require courts to depart from established understandings of the limits of statutory interpretation (supported by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

With the exception of Heydon J, all members of the Court held that sections 7(1) and 32(1) of the Charter are constitutionally valid. In doing so, the Court rejected any Ghaidan-based interpretation of the scope of section 32(1) and upheld the Court of Appeal's decision that interpretation under section 32(1) reflects “what courts have traditionally done”.

Relying on the text and structure of the Charter, a majority of the Court held that interpretation of legislation in accordance with section 32(1) must operate with reference to rights as limited in accordance with section 7(2). Some members of the Court noted that this mirrors the approach adopted under sections 5 and 6 of the Bill of Rights Act 1990 (NZ).

Bell J was the only member of the Court to expressly consider the steps that should be followed when interpreting legislation in accordance with the Charter. Under Bell J's approach, the first step is to identify the “literal or grammatical meaning” of the relevant provision without the aid of section 32(1). However, it is not clear whether the other members of the Court consider this step to be necessary. Gummow, Hayne and Heydon JJ's judgments arguably envisage that statutory provisions will be interpreted with the aid of section 32(1) — albeit applied by reference to rights as limited in accordance with section 7(2) — without first identifying a separate “literal or grammatical meaning”.

Bell J was also the only member of the Court expressly to consider the role of evidence in relation to section 7(2). According to her Honour, “[c]onsideration of the purpose of the limitation, its nature and extent, and the question of less restrictive means reasonably available to achieve the purpose are matters that commonly will be evident from the legislation.” Given that a majority of the High Court disagreed with the Court of Appeal's understanding of section 7(2), it is not clear if the Court of Appeal's reasoning on the role of evidence in relation to section 7(2) remains authoritative.

Practical consequences for declarations of inconsistent interpretation

There was also substantial disagreement between the members of the Court in Momcilovic about the circumstances in which declarations of inconsistent interpretation under section 36 of the Charter could be made or reviewed. Gummow, Hayne and Heydon JJ each held that sections 33, 36 and 37 of the Charter were constitutionally invalid, on the basis that section 36 impermissibly impairs the institutional integrity of the Supreme Court of Victoria, and that the three sections are not severable from each other.

The majority of French CJ, Crennan, Kiefel and Bell JJ upheld the validity of section 36. It appears from the judgments that the following principles relevant to declarations of inconsistent interpretation have the support of a majority of the Court:

  • The making of a declaration under section 36 involves the exercise of non-judicial power (supported by French CJ, Gummow, Hayne, Heydon and Bell JJ).
  • The making of a declaration under section 36 does not impermissibly impair the institutional integrity of the Supreme Court of Victoria (supported by French CJ, Crennan, Kiefel and Bell JJ).
  • The “consistency” analysis conducted by the Supreme Court of Victoria under section 36 is separate from the “compatibility” analysis conducted under section 7(2) (and, by extension, section 32(1)). Section 7(2) is not relevant when determining whether a statutory provision can be interpreted “consistently” with a human right (although it may inform the circumstances in which the Supreme Court exercises its discretion to make a declaration) (supported by French CJ, Crennan, Kiefel and Bell JJ).
  • The Supreme Court of Victoria should exercise its discretion to make a declaration under section 36 with caution. It should not make a declaration where:
    • the inconsistency is reasonably justifiable under section 7(2) (supported by French CJ and Bell J); or
    • making the declaration would risk impairing the institutional integrity of the Court (for example, in a criminal matter where the Court would effectively be required to declare that a person's Charter rights had been violated, but at the same time uphold a conviction) (supported by Crennan and Kiefel JJ).

It is not clear whether the French/Crennan/Kiefel/Bell majority's approach to the interaction between 7(2) and section 36 is entirely consistent with the Gummow/Hayne/Heydon/Bell majority's approach to the interaction between section 7(2) and section 32(1). If, as Gummow, Hayne and Heydon JJ held, section 7(2) informs the definition of the various Charter rights, then it is difficult to see how it can be separated from the Charter rights when applying the “consistency” analysis required by section 36. It is not clear whether this apparent inconsistency will have any practical effect on the application of the Charter.

Another inconsistency arises in relation to the question of the reviewability of declarations of inconsistent interpretation made under section 36. As a majority of the Court held either that the declaration made by the Court of Appeal was invalid, or was valid but should not have been made, the declaration was set aside. However, if we accept the conclusion of the French/Crennan/Kiefel/Bell majority that section 36 is valid, and we accept the conclusion of the French/Gummow/Hayne/Heydon/Bell majority that section 36 involves the exercise of non-judicial power, then it follows that declarations made under section 36 should not be reviewable by the High Court, as they are not judgments, decrees, orders or sentences of the Supreme Court of Victoria falling within the High Court's appellate jurisdiction under section 73 of the Constitution.

Section 109 inconsistency

With the exception of Hayne J, all members of the Court rejected the argument that sections 5 and 71AC of the Drugs Act are inconsistent with sections 13.1, 13.2 and 302.4 of the Commonwealth Criminal Code and therefore inoperative under section 109 of the Constitution.

The decision is at http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html.

Mark Hosking is a lawyer with Allens Arthur Robinson. Allens acted for the Human Rights Law Centre which appeared as amicus curiae in both the Court of Appeal and the High Court.

MichelleBennettHuman Rights Law & Institutions