A Bad Trip for Health-Related Human Rights: Implications of Momcilovic v the Queen (2011) 85 ALJR 957

(2012) 19 Journal of Law and Medicine 685

14 Pages Posted: 2 May 2013 Last revised: 19 Nov 2013

See all articles by Timothy Vines

Timothy Vines

Civil Liberties Australia; RegNet

Thomas Alured Faunce

Australian National University

Date Written: 2012


Momcilovic v The Queen (2011) 85 ALJR 957; [2011] 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.

Keywords: human rights, australia, high court, drug trafficking, bill of rights, mental health, Chapter III

Suggested Citation

Vines, Timothy and Faunce, Thomas Alured, A Bad Trip for Health-Related Human Rights: Implications of Momcilovic v the Queen (2011) 85 ALJR 957 (2012). (2012) 19 Journal of Law and Medicine 685, Available at SSRN: https://ssrn.com/abstract=2257114

Timothy Vines

Civil Liberties Australia ( email )

PO Box 7438
FISHER ACT 2611, 04043

HOME PAGE: http://www.cla.asn.au

RegNet ( email )

Australian National University
Building #8
Canberra, Australian Capital Territory 0200

Thomas Alured Faunce (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 0200
61 2 61253563 (Phone)

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