Alistair Pound is part of the high calibre Victorian Administrative Law author team (headed by Jason Pizer). Alistair authors the Human Rights content for the service and is a Barrister who practices in the areas of commercial and public law. Before joining the Bar, he was Associate to Justice Hayne in the High Court and a Senior Associate at Mallesons Stephen Jaques in the commercial litigation group. Alistair holds a first class honours degree from Cambridge University.

Having recently acted on behalf of the government in Momcilovic v The Queen, a highly publicised recent High Court case which considered Victoria's Charter of Human Rights, Alistair gives us his take on this important development:

Momcilovic v The Queen was a case of a Queensland resident accused of trafficking drugs in Australia. What were the key points of contention?
There were a number of issues in contention.  The accused was charged with trafficking. Trafficking could be established by proving that a person had a traffickable quantity of drugs in their “possession for sale”.  Section 5 of  the Victorian Drugs, Poisons and Controlled Substances Act 1981  (Drugs Act) reversed the onus of proof on the issue of “possession” because, instead of requiring the prosecution to prove possession beyond reasonable doubt, the section provided that if drugs were found on premises occupied by a person, the person was presumed to have been in possession of them unless they satisfied the court to the contrary.  The accused argued that s 5 should be interpreted so that, instead of imposing on her the burden of proving on the balance of probabilities that she was not in possession of the drugs (a legal burden), all she had to do was lead some evidence that she was not in possession (which she did at her trial) before the burden moved back to the prosecution to prove possession beyond reasonable doubt (an evidential burden).  The accused also argued that that interpretation could be reached by applying the interpretive obligation in s 32(1) of the Victorian Charter of Human Rights and Responsibilities Act 2006.  The Victorian Court of Appeal disagreed.  It held that s 5 could only be interpreted as imposing a legal burden.  It also held that to impose a legal burden on a defendant was incompatible with the presumption of innocence in s 25 of the Charter and therefore made a declaration under s 36 of the Charter that s 5 of the Drugs Act could not be interpreted consistently with the Charter.  

In the High Court, a number of further issues came up.  Did s 5 of the Drugs Act apply to the offence of trafficking?  Was s 5 of the Drugs Act inconsistent with the equivalent trafficking offences in the Commonwealth Criminal Code Act 1995, which did not contain a reverse burden on the issue of possession, and was s 5 therefore inoperative by reason of s 109 of the Constitution?  Did ss 32 and 36 of the Charter impose non-judicial functions on the Court and, if so, did they infringe the Kable principle?   Was the case a matter in federal jurisdiction because of the accused’s residence in Queensland at the time of her trial and, if so, did the Charter operate in federal jurisdiction?
 
What led to the original decision being overturned?
By a majority of 5:2, the High Court held that s 5 of the Drugs Act did not apply to the offence of trafficking.  Section 5 was concerned with the concept of “possession”.  The majority held that it did not apply to the composite concept of “possession for sale” in the definition of trafficking.  That was enough to overturn the accused’s conviction.

What is the most significant impact of this case?
The most significant aspects of the decision are to be found in the Court’s consideration of the operation of s 109 of the Constitution and the operation of the Victorian Charter.    The impact on the Charter is discussed below.  In relation to s 109, the Court held by majority that s 5 of the Drugs Act was not inconsistent with the Commonwealth Criminal Code Act 1995.  

The High Court judgment has been hailed as an affirmation of the Victorian Charter of Human Rights – what do you think is in store for the Charter?                                                                                                                                      The Court, by different majorities, upheld the validity of the Charter, but the judgments are not exactly a glowing affirmation of it.  French CJ, Crennan, Kiefel and Bell JJ upheld the Charter in its entirety.  Gummow and Hayne JJ held that the declaration power in s 36 infringed the Kable principle and was invalid and that ss 33 and 37, which were inseverable from s 36, were also invalid.  Heydon J held that the entire Charter was invalid.  On the question of the strength of the interpretive power in s 32(1) of the Charter, a majority of 6:1 held that it was an ordinary interpretive rule, essentially comparable to the common law principle of legality.  In coming to that conclusion, the majority held that s 32(1) was a less powerful obligation than the comparable interpretive obligation in s 3 of the UK Human Rights Act 1998.  While this was enough to ensure the validity of s 32(1), it does reduce the power of the Charter to protect human rights through statutory interpretation compared to the UK Act.  Only Heydon J would have given s 32(1) a more powerful operation, comparable to that of the UK Act, but this was one reason why his Honour would have held the section invalid.

Shortly after Momcilovic was handed down, the Scrutiny of Acts and Regulations Committee of the Victorian Parliament published its report of the four-year review of the Charter.  A majority of the Committee recommended that, while the role of the Charter in the processes leading to the enactment of legislation should be maintained, the Charter should no longer play any role in the courts.  The majority of the Committee therefore recommended that key parts of the Charter (including s 32(1) and the obligations on public authorities in s 38) should be repealed.  The Government’s response has not yet been announced.   At the time of writing, the future of the Charter is, at best, uncertain.

For more information on this decision, as well as other developments in administrative law in Victoria, see Victorian Administrative Law.