The HRLRC recently made submissions on the correct approach to the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in the High Court of Australia. The appeal from the decision of the Court of Appeal of the Supreme Court of Victoria in R v Momcilovic (2010) 265 ALR 751, was heard in Canberra on 8–10 February 2011. The HRLRC was granted leave to appear as amicus curiae early on the first day of the hearing, to make written and oral submissions. The hearing of the special leave application in the matter raised complex questions concerning the interaction between the Charter, the Australian Constitution and the Drugs, Poisons and Controlled Substances Act 1981 (Vic), under which Ms Momcilovic had been convicted of trafficking in methamphetamine. These included potential inconsistency between the Victorian offence provisions and their Commonwealth equivalents under s 109 of the Constitution, as well as the issue of whether the Charter required the court to exercise non-judicial power. The parties to the High Court appeal were the Appellant, the Director of Public Prosecutions, the Victorian Attorney-General and the Victorian Equal Opportunity and Human Rights Commission. Pursuant to s 78A of the Judiciary Act 1903 (Cth), the Commonwealth Attorney-General and the Attorneys-General of South Australia, the Australian Capital Territory, New South Wales and Western Australia also intervened in the proceedings.
With respect to the Charter arguments, the Appellant generally adopted the submissions put on behalf of the Commission. Those submissions focused on the construction of s 32 of the Charter in the context of the Charter as a whole, and the impact of that provision on s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which operates to reverse the burden of proof in certain circumstances. In particular, the Commission submitted that the phrase 'compatible with human rights' in s 32 should be understood so that a measure will be considered to be compatible with rights, if that measure does not limit any of the rights in Part 2 of the Charter 'in a way that is not a reasonable limit that is demonstrably justifiable having regard to the factors identified in s 7(2)'. Contrary to the decision of the Court of Appeal, the Commission submitted that s 7(2), the 'limitations' provision, informs the interpretive obligation provided by s 32 of the Charter. With regard to the effect of the Charter on Victorian legislation which could not be interpreted consistently with the rights protected by the Charter, the Commission suggested that the infringing legislation is 'impliedly repealed'.
Significantly, the Attorney-General of Victoria amended its position taken in the Court of Appeal by submitting that s 32 of the Charter should be applied like any other principle of statutory interpretation, and that an 'ordinary' interpretation of legislation need not be established before its application. The Attorney-General also emphasised that s 32 preserves the primacy of the purpose of the enacting legislature consistently with s 35(a) of the Interpretation of Legislation Act 1984 (Vic). That provision requires legislation to be interpreted such that a construction which would promote the purpose or object underlying an Act is preferred to one that does not. However, the Attorney-General for Victoria concurred with the submissions of the Commission on the relationship between ss 32 and 7(2), stating that the 'limitations' provision is an integral part of and so informs the operation of s 32 of the Charter.
The submissions of the Commonwealth Attorney-General were addressed to the constitutional law implications of the matter, including s 109 inconsistency and the constitutional limits of interpretation. On the issue of whether the Charter may require courts to exercise non-judicial power, the Commonwealth Attorney-General submitted that it is too narrow a notion to think that the line between judging and legislating is somehow crossed simply because the court 'strays from a literal meaning of the statutory text.' The Commonwealth Attorney-General submitted that on any of the potential constructions of ss 32 and 7 of the Charter put to the Court, there was nothing antithetical to the exercise of judicial power. Similarly, a declaration of inconsistent interpretation made under s 36 of the Charter should be regarded as the exercise of judicial power, or alternatively, the exercise of a power ancillary or incidental to the exercise of judicial power.
The Attorney-General for the ACT emphasised the objects of the Charter: 'The object “being to protect” immediately emphasises that the Act is not merely aspirational. It is not simply about promoting human rights, it is about affording protection to them.'
The submissions of the HRLRC, which differed from those put forward by all other parties and interveners, reinforced the submissions which had been accepted by the Court of Appeal. The HRLRC submitted that s 7(2) of the Charter does not form part of the process of interpretation of statutory provisions under s 32. The first step in the application of the Charter must be interpretation of the relevant statutory provision by reference to the rights contained in Part 2 of the Charter, and not by reference to those rights subject to limitations. This process determines the scope of the right in question and whether the right is limited by the statutory provision. It is only at the next stage that s 7(2) is applied in order to assess whether any limitation on a right is reasonable and can be demonstrably justified in a free and democratic society. In the HRLRC's submission, evidence or other material will ordinarily be required from the party seeking to justify any limitation on a right protected by the Charter. Further, the approach which inserts s 7(2) into the process of interpretation is insufficiently protective of human rights and therefore does not give best effect to the Charter.
The Court's decision was reserved.
The HRLRC was assisted in this matter on a pro bono basis by Mark Moshinsky SC and Chris Young of Counsel, together with Allens Arthur Robinson.
Katherine Cooke is a lawyer at Allens Arthur Robinson