Court of Appeal Makes Declaration of Inconsistent Interpretation and Considers Statutory Interpretation and Limitations on Rights under the Charter

R v Momcilovic [2010] VSCA 50 (17 March 2010) In a landmark decision, the Victorian Court of Appeal has unanimously held that:

  • s 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 issue of ‘justification’ pursuant to s 7(2) arises only if it is not ‘possible’ to interpret legislation compatibly with human rights;
  • any infringement of human rights should be ‘demonstrably justified’ by clear, cogent and persuasive evidence;
  • where an infringement can not be demonstrably justified, the Court should grant a Declaration of Inconsistent Interpretation, such declarations being ‘central’ to and ‘exemplifying the dialogue model of human rights legislation’.

In the present case, the Court of Appeal found that a reverse onus provision infringed the right to the presumption of innocence in a purposive manner that could not be cured by s 32 or justified by s 7.  Accordingly, the Court indicated its intention to issue a Declaration of Inconsistent Interpretation, which would effectively remit the provision to parliament for reconsideration but give parliament ‘the final say’.


The applicant, Vera Momcilovic, was convicted of one count of drug trafficking in the County Court.  The drugs were found in the applicant’s apartment.  Pursuant to s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’), the applicant was deemed to be in possession of the drugs unless she ‘satisfie[d] the court to the contrary’.  Thus, s 5 of the DPCS Act imposes on a defendant the legal burden of disproving possession and, when read in conjunction with s 73 of the Act, means that ‘upon proof by the prosecution that a drug of dependence was found “upon any land or premises occupied by” that person, then unless he/she satisfies the Court to the contrary, he/she is deemed to be in possession of that drug.’

The applicant appealed against conviction and sentence.  The appeal against conviction proceeded on the ground, among others, that s 32 of the Charter requires that s 5 of the DPCS Act be interpreted as placing only an evidentiary burden on an accused.

The Human Rights Law Resource Centre was given leave to appear as amicus curiae and make written and oral submissions on the application of the Charter.  The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission also intervened in the proceeding, pursuant to ss 34 and 40 of the Charter, respectively.


The Court refused the appeal against conviction, holding that it was not ‘possible’ to interpret s 5 consistently with the right to the presumption of innocence.  Accordingly, the Court notified the Attorney-General and the Commission of its intention to issue a Declaration of Inconsistent Interpretation.

Statutory Interpretation under the Charter

Section 32(1) of the Charter requires that ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.

The Court held that this provision does not ‘create a “special” rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question’.

Instead, the Court characterised s 32(1) as 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 concluded that:

We reject the possibility that Parliament is to be taken to have intended that s 32(1) was only to operate where necessary to avoid what would otherwise be an unjustified infringement of a right.  The Human Rights Law Resource Centre’s submission to this effect was correct.

In reaching this conclusion, the Court endorsed the decision of Elias CJ in Hansen [2007] 3 NZLR 1.

Accordingly, the Court held that, when it is contended that a statutory provision infringes a Charter right, the correct methodology is as follows [35]:

  • Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).
  • Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.
  • Step 3: If so, apply s 7(2) of the Charter to determine whether the limit on the right is justified.

If the limitation is not demonstrably justified pursuant to s 7(2), a Court may issue a Declaration of Inconsistent Interpretation.

The Court distinguished this approach from that of the House of Lords in Ghaidan, stating that, ‘s 32(1) was not intended to create a “special”’ rule of statutory interpretation’ and concluding that:

our view that s 32(1) does not permit a departure from the intention of the enacting Parliament is reinforced by the fact that s 32(1) requires provisions to be ‘interpreted’ compatibly with human rights.  ‘Interpretation’ is what courts have traditionally done.

In the present case, the Court held that the reverse onus established by s 5 of the DPCS Act was ‘not so much an infringement of the presumption of innocence as a wholesale subversion of it’, contrary to s 25 of the Charter.  The Court iterated, however, that ‘the choice between a legal burden and an evidentiary burden is a legislative choice’ and that it is not ‘possible’ for a Court to substitute an evidentiary onus for the legal onus: ‘If that substitution is to be made, it is a matter for Parliament’.

Reasonable Limitations under the Charter

The Court next considered whether the limitation on the presumption of innocence imposed by s 5 of the DPCS Act was ‘demonstrably justified’ in accordance with s 7(2) of the Charter.

On this issue, the Court endorsed the approach of Dickson CJ in Oakes [1986] 1 SCR 103, regarding the need for clear, cogent and persuasive evidence in order to demonstrably justify a human rights infringement.  After highlighting that there was no evidence before the Court to ‘establish that effective prosecution…depends on the reverse onus’, the Court stated:

this was a case where evidence was required.  The mere assertion that the reverse onus was essential to the effective prosecution of trafficking offences could never have been sufficient by itself to establish that fact.  There may be circumstances where the justification for interfering with a human right – and for doing so by the particular means chosen – is self-evident, but they are likely to be exceptional.  The government party seeking to make good a justification case under s 7(2) will ordinarily be expected to demonstrate, by evidence, how the public interest is served by the rights-infringing provision.  The nature and extent of the infringement of rights sought to be justified will usually determine how much evidence needs to be led, and of what kind(s).

In the absence of evidence, the Court concluded that there was no demonstrable justification (or even a reasonable justification) for reversing the onus.

Declarations of Inconsistent Interpretation under the Charter

Having reached the conclusions above, the Court notified the parties of its intention to make a Declaration of Inconsistent Interpretation under s 36(2) of the Charter.

Significantly, the Court noted that, contrary to the approach under the Human Rights Act 1998 (UK), such Declarations should not be seen as a ‘last resort’ but rather, as reflected in parliamentary debates about the Charter, as ‘epitomising the intended relationship between the courts and the legislature’ in the dialogue model.  On this point, they concluded that

the making of a declaration of inconsistent interpretation accords more closely with this conception of dialogue, and in particular with the avowed purpose of ‘giving Parliament the final say’, than would an expanded view of ‘interpretation’ which allowed courts to depart from the plain meaning of a statutory provision and the intent of Parliament thereby conveyed.  Under the Charter, the concept of the ‘final say’ is given direct expression in the obligation of the responsible Minister to table in Parliament a written response to a declaration of inconsistency.

If a Declaration is made, s 37 of the Charter requires that the Attorney-General table this Declaration, together with his written response, in Parliament within six months.

The decision is available at

Phil Lynch is Director of the Human Rights Law Resource Centre