High Court affirms importance and validity of Victorian Charter of Human Rights

In a landmark decision, the High Court of Australia has upheld the validity, operation and importance of Victoria’s Charter of Human Rights. In the case of Momcilovic v The Queen & Ors [2011] HCA 34 (8 September 2011), the High Court held that the Charter protects fundamental human rights and maintains parliamentary sovereignty.

By a majority of 6-1, the Court held that s 32(1) of the Charter, which requires that Victorian legislation be interpreted consistently with human rights, is an ordinary principle of statutory interpretation that does not empower the courts to radically re-interpret legislation or subvert parliament’s intent. According to Phil Lynch of the Human Rights Law Centre, which made submissions to the High Court in the matter, “The Court has affirmed that, consistent with the rule of law, the judiciary has an important role to play in upholding human rights. Far from being undemocratic, an independent judiciary which is empowered to interpret laws to protect rights and freedoms is a fundamental feature of our liberal democracy.”

By a majority of 4-3, the High Court also held that the power conferred by parliament on the courts to make a declaration notifying parliament where legislation may be incompatible with human rights is valid. “Declarations of Inconsistent Interpretation under the Charter play an important role in calling the attention of parliament and the people to laws that may be inconsistent with human rights,” said Mr Lynch. Such declarations do not affect the validity of legislation, but instead act as a trigger for parliament to consider whether a particular law should be amended to better protect the human rights of all Victorians.

The High Court’s extensive consideration of the Charter arose in an appeal by Vera Momcilovic against her conviction for drug trafficking. The Court quashed her conviction and ordered a re-trial. It is important to note, however, that the conviction was not quashed because of the Charter. Instead, the High Court upheld the appeal on the basis that the Victorian courts in which she was convicted had misconstrued the operation of the Drugs Act.

According to Mr Lynch, the High Court’s decision is particularly important and timely in light of the Baillieu Government’s current review of the Charter. “Any suggestion that the Charter shifts power to judges and usurps parliamentary sovereignty can be laid to rest,” said Mr Lynch. “There is also no longer any doubt, if ever there was, that the Charter is valid and constitutional”.

Mr Lynch said that the High Court’s decision has helpfully identified the need to clarify the operation of s 7 of the Charter, which relates to permissible limitations on rights. Earlier in the week, on Tuesday, the Victorian Court of Appeal decision in Sudi also identified the need to clarify s 39, which relates to legal proceedings. “These landmark judgments are very timely,” said Mr Lynch. “Together, they affirm the validity and operation of the Charter but also helpfully chart the course for minor amendments to the Charter to increase certainty in the interpretation of laws and provide Victorians with better access to remedies for human rights breaches.”

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