For those interested in the evolution of Gardbaum’s ‘new Commonwealth model of constitutionalism’ and the potential for the design of a rights instrument to promote inter-institutional dialogue a recent decision of the Court of Appeal of the Supreme Court of the Australian State of Victoria deserves attention: The Queen v Momcilovic  VSCA 50
Victoria has had a Charter of Human Rights and Responsibilities since 2006. The Charter is broadly modelled on legislative bills of rights in the United Kingdom and New Zealand. Victoria is only one of two Australian sub-national jurisdictions to adopt such an instrument (the Australian Capital Territory is the other). Whether or not a national bill of rights is enacted depends in the first instance on the pending response of the national government to the conclusions of the National Human Rights Consultation. The response has been expected since December 2009; the Australian Senate recently called for it to be delivered by May 2010.
As this background suggests, Australia continues to be wary of introducing general, positive rights protection, preferring to rely instead on elected institutions, supplemented by the common law. This wariness is reflected also in the terms of the Victorian Charter. Notably, the interpretation provision, section 32, departs from the UK’s Human Rights Act by requiring statutory provisions to be interpreted in a way that is compatible with human rights ‘so far as it is possible to do so consistently with their purpose’ (emphasis supplied). The explanatory memorandum that accompanied the bill for the Charter before it was enacted by the Victorian Parliament described the purpose of this clause as to ensure that ‘courts do not strain the interpretation of the legislation so as to displace Parliament’s intended purpose…’
Momcilovic makes it clear that this difference in wording is significant. The legislation in issue appeared to reverse the onus of proof in prosecutions for drug trafficking. The Attorney-General argued that, if this provision was otherwise incompatible with the presumption of innocence that was protected by the Charter, it should be interpreted to impose only an ‘evidentiary burden’ on the accused, through application of section 32. The Court declined to do so, on the ground that such an interpretation would depart from the purpose of the provision.
In a set of wider observations on the meaning and operation of the Charter the unanimous Court held that section 32 was not a ‘special’ rule of interpretation but, in effect, gave statutory force to existing common law interpretive rules including the ‘powerful’ common law presumption against legislative interference with rights. It followed that the question of interpretation should be dealt with at the outset, in order to determine whether a Charter right had been breached. Only if breach was found on this basis should the Court move on to consider whether it was justifiable under s.7(2) as a ‘reasonable limit…that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom…’
In Momcilovic itself, the Court held that the reversal of the onus of proof was not justifiable under s.7. The Court gave notice of its intention to make a Declaration of Inconsistent Interpretation, under s.36 of the Charter. Under s. 37, the government is required to table a response to a Declaration in the Victorian Parliament within six months.
For the moment at least, this decision has settled the methodology to be adopted by Victorian courts in approaching Charter questions. From the broader perspective of mechanisms for rights protection, however, it is interesting for other reasons as well. It preserves the courts from the controversy that may well have attended a broader understanding of their interpretive function. It places responsibility for action on the government and parliament in circumstances that will require some sort of public response. Aficionados of legislatures as rights protectors should watch this space. And it makes it clear that the interpretive presumption against legislative interference with rights is not dependent on the Charter alone but derives from the common law and so would survive were the Charter to be repealed. In most other jurisdictions, these would be small gains indeed. In the Australian context, however, they are significant. CS