Recent cases involving Victoria’s Charter have set important precedents. Christian submissions to the National Consultation on Human Rights which opposed a federal Charter of Rights (or, Human Rights Act) claimed that a Charter would transfer power away from Parliament to courts. However, a recent case in Victoria’s Court of Appeal undermines this claim. In R v Momcilovic [2010] VSCA 50 (17 March 2010) the court’s ruling reflects on s 32 (1) of the Charter, which concerns how courts may use Charters when interpreting the law. In essence, the court strictly limited its interpretive scope in relation to the Charter:
“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.”
This ruling distinguishes the Australian Charter situation from the UK’s Human Rights Act, which the House of Lords took as allowing greater latitude of interpretation (in Ghaidan v Godin-Mendoza). It sets a high bar for the application of Charters by requiring “clear, cogent and persuasive evidence” before ruling that a law infringes the Charter.
The court of appeal found that there was clear and persuasive evidence that an aspect of the law before it was in conflict with the Charter, specifically the presumption of innocence. The court found that the Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 5, presumed guilt on the part of the accused. Presumption of guilt is contrary to s 25 of the Charter. Accordingly, the court issued a declaration of incompatibility (s 36(2)). The Attorney-General must table this declaration, with a written response in Parliament within 6 months. In the meantime, and unless Parliament acts to amend the law in question, it remains in full force.
The case indicates at least the following conclusions:
- This case, like others in Victoria, show that the Australian courts are using Charters in a conservative and ‘traditional’ way.
- The Charter is prompting important questions about statutory laws, such as whether the principle of presumption of innocence is preserved.
- The Charter provides a clearer framework for the courts to communicate with Parliament, while preserving the tradition of Parliamentary sovereignty by leaving any decision to amend the law in the hands of Parliament.