Proportionality, Rights-Consistent Interpretation and Declarations Under the Victorian Charter of Human Rights and Responsibilities: The Momcilovic Litigation and Beyond

Abstract

The meaning, scope and interaction of the key provisions relating to the rights-compatibility of legislation under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were analysed by the Victorian Court of Appeal (‘VCA’) in R v Momcilovic. On appeal, the High Court of Australia (‘HCA’) reviewed this analysis and considered the constitutionality of the key provisions in Momcilovic v R. Although overall the HCA upheld the provisions as constitutional, no majority opinion emerged on the scope and operation of the provisions in Victoria, with similar differences of opinion reflected in the Victorian superior courts. Opinions differed on: the role, if any, of limitations under s 7(2); whether s 32(1) is an ordinary rule of statutory construction or a “remedial” rule of interpretation; and the constitutionality and role of s 36(2) declarations of inconsistent interpretation. Even where a degree of agreement was apparent on one provision, the reasoning underlying the agreement differed, and/or there was no agreement on the inter-linking provisions. An overarching theme concerned the methodology by which to approach the key provisions, which again produced disagreement.This article will critically analyse the multiplicity of views in the HCA, both because of the importance of the decision and because its application in Victoria is unclear. Regarding the latter, the Victorian superior courts have considered VCA Momcilovic to not be overruled by HCA Momcilovic, and continue to rely on it in varying degrees, whilst also seeking to identify a ratio from the HCA. By way of background, the article will explore the choices facing the VCA and its decision. It will then analyse the five HCA judgments, focussing on the thematic issues of limitations, ordinary/remedial interpretation, declarations, and methodology. It concludes with a review of the Victorian superior courts’ reaction to HCA Momcilovic. Analysis will be limited to consideration of the Charter as it operates in Victoria. In addition to the specific disagreements on the key provisions, broader issues of parliamentary sovereignty, the proper role of the judiciary and democratic governance will be examined.