Who is Sovereign Now? The Momcilovic Court Hands Back Power Over Human Rights that Parliament Intended it to have

(2011) 22(1) Public Law Review 15-51

38 Pages Posted: 26 Mar 2013 Last revised: 21 Feb 2015

See all articles by Julie Debeljak

Julie Debeljak

Monash University - Faculty of Law

Date Written: September 1, 2010

Abstract

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.

Keywords: Human Rights, Bills of Rights, Parliamentary Sovereignty, Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic)

Suggested Citation

Debeljak, Julie, Who is Sovereign Now? The Momcilovic Court Hands Back Power Over Human Rights that Parliament Intended it to have (September 1, 2010). (2011) 22(1) Public Law Review 15-51, Available at SSRN: https://ssrn.com/abstract=2239445

Julie Debeljak (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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