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High Court jugdments

Every Issue

Cite as: November 2011 85(11) LIJ, p.58

Constitutional law

Judicial power – Charter of Human Rights and Responsibilities Act 2006 (Vic) – jurisdiction given to Supreme Court by human rights Act to make non-binding declaration that legislation inconsistent with Charter – whether judicial function Constitutional law – commonwealth legislative powers – inconsistency with state laws – drug trafficking offences – whether offences in commonwealth crimes Act cover the field and exclude state offences based on the same conduct Criminal law – drug offences – possession of drugs – whether provision deeming a person to possess drugs found on property they occupy is inconsistent with human right to presumption of innocence – whether deeming provision limited to possession of drugs for sale

In Momcilovic v Q [2011] HCA 34 (8 September 2011) M occupied an apartment in Melbourne with a male partner. In July 2008, after a trial in the County Court of Victoria, she was convicted under s71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (the state drugs Act) of trafficking in drugs found in the apartment in January 2006. She denied knowledge of the drugs. Her partner claimed they were his and he was convicted of possessing them. Section 5 of the state drugs Act deemed a person who occupied premises to be in possession of drugs found on the premises unless the person satisfied the court to the contrary.

By s25(1) the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) provides a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law; by s32(1) it provides that all statutes are to be interpreted to be compatible with human rights; and by s36(2) it provides the Supreme Court can make a declaration when it finds an Act cannot be interpreted consistently with a human right; however by s36(5) such a declaration does not affect the validity or operation of the statute in question.

M’s appeal to the Court of Appeal of Victoria against conviction was dismissed, but her appeal against sentence succeeded. That court made a declaration under s36(2) of the Charter that s5 of the state drugs Act could not be interpreted consistently with s25(1) of the Charter. M’s further appeal to the High Court against conviction was allowed. The High Court held that s5 of the state drugs Act did not apply to the offence in s71AC: French CJ [74], Gummow J [200], Hayne J agreeing with Gummow J on this point [280], Crennan and Kiefel JJ [606]; contra Heydon J [371] and Bell J [659]. The Court ordered M’s appeal be allowed and ordered a re-trial. The Court also considered other issues. A majority concluded the making of a “non-binding” declaration under s36(2) did not offend the Kable principle by giving a non-judicial function to a court: French CJ [97] with whom Bell J agreed [661]. Gummow J (with whom Hayne J agreed on this point) found s32 of the Charter valid [171] but s36 invalid [188]; Heydon J found the Charter was invalid [371]; Crennan J with Kiefel J accepted s36 as valid [600] but doubted it applied to criminal proceedings [605].

The High Court concluded that the Victorian provisions were not inconsistent with the provisions relating to drug trafficking in the Criminal Code (Cth) that attracted a lesser sentence: French CJ [111], Gummow J [266], Crennan J with Kiefel J [656], contra Hayne J [280]. Appeal allowed. Re-trial ordered.

Constitutional law

Whether state legislation inconsistent – long service leave provisions in state Act and federal awards

In Jemena Asset Management (3) Pty Ltd v Coinvest Limited [2011] HCA 33 (7 September 2011) the High Court in a joint judgment concluded the Federal Court did not err in deciding that Victorian legislation relating to long service leave was not inconsistent within s109 of the Constitution with federal awards made under the Workplace Relations Act 1996 (Cth). The Court concluded the state provisions providing for portable benefits were not inconsistent with the award provisions. Appeal dismissed.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of these judgments can be found at


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