A Bad Trip for Health-Related Human Rights: Implications of Momcilovic v the Queen (2011) 85 ALJR 957
Civil Liberties Australia
Thomas Alured Faunce
Australian National University; Australian Research Council
(2012) 19 Journal of Law and Medicine 685
Momcilovic v The Queen (2011) 85 ALJR 957;  HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a deﬁned list of human rights. By a slim majority it also held that the Charter validly created a judicial power to “declare” a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a speciﬁc state's human rights law, the High Court judgments allude to signiﬁcant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.
Number of Pages in PDF File: 14
Keywords: human rights, australia, high court, drug trafficking, bill of rights, mental health, Chapter IIIAccepted Paper Series
Date posted: May 2, 2013 ; Last revised: November 19, 2013
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