Who is sovereign now? The Momcilovic Court hands back power over human rights that Parliament intended it to have

By Julie Debeljak*

The decision of R v Momcilovic concerned the rights-compatibility of a reverse legal burden of proof under drug control legislation. The Victorian Court of Appeal held that the reverse onus provision was an unjustified limit on the right to the presumption of innocence under s 25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) and issued a declaration of inconsistent interpretation under s 36(2) of the Charter. This test case sought to resolve many fundamental issues concerning the Charter mechanisms relating to the human rights-compatibility of legislation, including strength of the s 32(1) interpretation obligation, and the appropriate methodology for the statute-related mechanisms under the Charter. This article will critique the court’s resolution of these broader issues, arguing that the court has sanctioned a rights-reductionist method to the statute-related Charter mechanisms, undermined the remedial reach of the s 32(1) interpretation obligation, and considerably muted the institutional dialogue. Most significantly, however, is the fact that this is all done despite clear parliamentary intention to the contrary.

The full article can be accessed here: “Who is sovereign now? The Momcilovic Court hands back power over human rights that Parliament intended it to have” (2011) 22 PLR 15

* Julie Debeljak is a Senior Lecturer in Law and Foundational Deputy Director of the Castan Centre for Human Rights Law, Faculty of Law at Monash University.