Momcilovic v The Queen
High Court of Australia · 2011
Momcilovic v The Queen (2011) 245 CLR 1
A reverse-onus provision cannot be read compatibly with the presumption of innocence. What can a court actually do about it?
THE ORTHODOX READING RESTATED, AND A WIDER ONE RAISED WITHOUT BEING DECIDED. Director of Public Prosecutions (Vic) v Smith [2024] HCA 32.
THE MAJORITY -- Gageler CJ, Gleeson, Jagot and Beech-Jones JJ -- apply s 32(1), noting at [57] that the provision has been taken to mean "[w]here more than one interpretation of a provision is available on a plain reading of the statute, then that which is compatible with rights protected under the Charter is to be preferred". AT [58]
THEY RESERVE THE REST: "The general operation of the interpretative principle in s 32(1) of the Charter need not be resolved in this appeal. What is beyond question is that s 32(1) requires 'close attention to the particular rights said to be engaged by the statutory provision that falls for interpretation'." So the majority applied the principle to the provision before them and reserved its general operation: this is not a ruling on the outer limits, and it does not confirm the boundary Momcilovic draws. What it does settle for any s 32 argument is the starting point: identify the particular rights engaged. EDELMAN J RAISES SOMETHING MORE. At [137] he suggests "another role for severance or partial disapplication, beyond limiting the effect of constitutional invalidity, by the operation of s 32": the section "acts as a statutory mandate to apply a relevant provision, unless its purpose and context require otherwise, only to those circumstances which are compatible with" the Charter rights, and "might provide a mandate, or 'added sense of legitimacy', in the process of interpretation to sever, or ignore, words of a provision that are not integral to its purpose". It "might mandate a process of partial disapplication" resulting in a court "failing to apply [the provision] ... according to its own terms" as "a matter of statutory construction". At [139] the exercise is "not one of preserving validity to the greatest extent possible but one of '[r]econciling conflicting provisions'", and he notes the argument that applying such techniques beyond reading down and reading in was "certainly what was expected by the legislators" of the Charter.
WHY THAT BEARS ON THIS PROPOSITION: partial disapplication is not choosing between constructions that the text will bear. If s 32 can mandate it, the boundary Momcilovic draws -- an interpretive direction limited by purpose and by the available constructional choices -- is wider than stated.
HOW MUCH WEIGHT: one Justice of a bench of five, raised in reasons that AGREE IN THE RESULT. At [166] Edelman J would allow the appeal, as the majority did, and at [167] he identifies his difference as being about whether s 389E(1) of the Criminal Procedure Act empowered a private meeting excluding the accused. The s 32 discussion is offered as a possibility -- "might", three times -- not as a holding.
AND THE MAJORITY DID NOT ANSWER IT: the reservation at [58] leaves the wider view open rather than rejecting it, which is the honest state of the question. So a student should state what Momcilovic decided, and cite [137]-[139] for the argument that s 32 reaches beyond choosing between available constructions.
What happened?
Vera Momcilovic was convicted of trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Crown relied on s 5, which deems any substance to be in a person's possession "so long as it is upon any land or premises occupied by him ... unless the person satisfies the court to the contrary" — a reverse onus. Section 25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) guarantees the right to be presumed innocent.
The Court of Appeal refused leave to appeal against conviction but did two other things: it resentenced her, and it made a declaration under s 36(2) of the Charter that s 5 of the Drugs Act cannot be interpreted consistently with s 25(1).
What did the Court decide?
The appeal was allowed and the conviction set aside; the Court of Appeal's orders, including the declaration, were set aside. The Court divided on almost everything else, and its reasons run to more than seven hundred paragraphs across six judgments.
The part that matters for the framework is what s 32(1) does. French CJ held that "[t]here is ... nothing in its text or context to suggest that the interpretation which it requires departs from established understandings of that process. The subsection limits the interpretation which it directs to that which is consistent with the purpose of the statutory provision under consideration. It operates upon constructional choices which the language of the statutory provision permits" ([50]). It "applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application" ([51]) — not as the United Kingdom's s 3 remedial power has been applied.
On the declaration, his Honour described it as "a distinct non-judicial power", a "mechanism by which the Court can direct the attention of the legislature, through the Executive Government of Victoria, to disconformity between a law of the State and a human right" ([95]). Making one "does no more than manifest, in a practical way, the constitutional limitations upon the Court's role and the fact that it is Parliament's responsibility ultimately to determine whether the laws it enacts will be consistent or inconsistent with human rights" ([96]).
Proposition
What is the principle?
Under the Victorian Charter, s 32(1) directs that "[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights" — an interpretive direction bounded both by the purpose of the provision and by the constructional choices its language permits, not a remedial power. Where a provision cannot be so interpreted, the Supreme Court may (s 36(2)) declare that, but the declaration "does not ... affect in any way the validity, operation or enforcement" of the provision (s 36(5)(a)); the responsible Minister must respond to it and table the response within six months (s 37). The Charter confers no power to strike down the legislation, and a declaration does not make it inoperative.
Why does this case matter?
Because of where the contest actually is. As between the two mechanisms this record is about, the argument that decides a case is the one under s 32(1): that is why Charter litigation turns on how far the interpretive direction reaches, and why the Court's answer to that question mattered far more than anything it said about declarations. (A separate route exists under s 39, which allows relief against a public authority's act or decision where its gateway is met; that is not what ss 32 and 36 are doing.)
It is also a case to cite carefully. Six judgments, a Court divided on the operation of s 7(2), on the validity of s 36, and on s 109 inconsistency — "Momcilovic held" is a sentence that usually needs a judge's name attached. The arrangement is often described as a "dialogue model", but that description was itself criticised in the Court, so treat it as a label for the design rather than as something the Court adopted.
Exam and application relevance
Set the order out explicitly, and state s 32(1) in full — including the purpose limb, which is the most common omission in answers on this section.
Only then consider a declaration, and say what it is: discretionary ("may"), and available to the Supreme Court only in the circumstances s 36(1) specifies. Do not write that the Charter gives a court power to strike a statute down, or that a declaration makes a provision inoperative — both are wrong and both are common.
Be more careful with a third idea, because it is not settled. Whether s 32(1) can require a court to apply only part of a provision — severance or partial disapplication as an exercise in construction rather than a consequence of invalidity — is a live question: see the note on later authority below. If a problem raises it, keep it apart from the other two: what is unresolved is the reach of the interpretive direction, not the absence of an invalidating power or the limits of a declaration.
And attribute. Where the reasoning you rely on is French CJ's, or Gummow J's, say so.
Check your understanding
Your client wins a declaration of inconsistent interpretation. What has she obtained, and what has she not?