Momcilovic v The Queen (High Court) – Sep 2011

In this case, the High Court considered in detail the operative provisions of the Charter for the first time.

The Commission intervened in the case when it was before the Victorian Court of Appeal and continued as a party to the proceedings in the High Court appeal. The Commission’s submissions focused on the application of the Charter, specifically how the interpretive obligation in section 32 operates and its constitutional validity, and the operation and validity of the power to make declarations of inconsistent interpretation in s 36 of the Charter.

The High Court allowed the appeal on grounds other than the Charter however it did make significant findings about how the Charter operates. However, six separate judgments from the court mean that some uncertainty remains about the application of the Charter in practice.

By a majority of 6-1, the Court held that section 32 of the Charter is a valid law and is an ordinary principle of statutory interpretation, which is to be applied by all Victorian Courts and tribunals. Section 32 requires laws to be interpreted against the background of human rights and freedoms set out in the Charter and human rights should not be infringed unless the law clearly says so.

By a majority of 4-3, the High Court ruled that the power for the Supreme Court to make a declaration of inconsistent interpretation is a valid power. This power does not put courts in the position of making laws rather than interpreting them, so therefore does not violate the separation of powers between the courts and the parliament that is protected in the Australian constitution.