Interpretation and Limitations: HRLRC Amicus Intervention in Momcilovic v R

Centre Granted Leave to Appear as Amicus Curiae in Victorian Court of Appeal On 22 July, the Centre was granted leave to appear and was heard as amicus curiae in the Victorian Court of Appeal in the matter of Momcilovic v R.

The matter concerns the application of the Charter and the interpretation of s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), a ‘reverse onus’ provision.

The Centre’s submissions [Outline of Submissions; Affidavit of Philip Lynch] focused on the proper approach to the interpretative task that the Court is required to perform under s 32 of the Charter, including particularly that:

• The proper approach to statutory construction under the Charter is to start with s 32; that is, to see s 32 as a cardinal principle of statutory construction (rather than seeing s 32 as a ‘last resort’ or ‘extraordinary’ provision which only comes into play in the event that a statutory provision is incompatible with human rights as a matter of ‘ordinary’ construction).
• Where a provision is said to limit a human right, it is wrong to consider, first, whether such limits can be justified under s 7(2), before considering whether it is possible to interpret the provision compatibly with human rights under s 32.  Rather, where it is alleged that a statutory provision limits human rights, it is necessary to consider whether it is possible to interpret the provision in a way that is compatible with human rights in accordance with s 32 of the Charter.  Consideration of s 7 only arises in the event that it is not possible to interpret the provision compatibly with human rights under s 32.

The Centre was represented on a pro bono basis in this matter by Allens Arthur Robinson, together with Mark Moshinsky SC and Chris Young of Counsel.  The decision of the Court has been reserved.