Momcilovic v The Queen & Ors [2011] HCATrans 15

The High Court of Australia heard an appeal in *Momcilovic v The Queen & Ors*. The case concerned the constitutional validity of certain provisions of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic) and the *Crimes Act 1958* (Vic), specifically those relating to the possession of a drug of dependence and the admissibility of evidence obtained in contravention of the *Charter of Human Rights and Responsibilities Act 2006* (Vic).

The central legal issues before the High Court were whether the Victorian *Charter* could operate to invalidate or limit the operation of Victorian legislation that was inconsistent with a human right, and whether the impugned provisions of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic) and the *Crimes Act 1958* (Vic) were invalid by reason of their inconsistency with the *Charter*. The Court was also required to consider the relationship between state legislation and a state human rights charter, and the extent to which a state parliament could legislate in a manner that conflicted with its own human rights instrument.

The High Court, by majority, held that the Victorian *Charter* did not empower courts to invalidate or disapply Victorian legislation that was inconsistent with a human right. Instead, the *Charter* imposed a duty on public authorities to act compatibly with human rights and required courts to interpret legislation, so far as is possible, in a way that is compatible with human rights. The majority found that the impugned provisions of the Victorian *Drugs, Poisons and Controlled Substances Act 1981* and *Crimes Act 1958* were not invalid, as the *Charter* did not provide a mechanism for their disapplication or invalidation due to inconsistency with human rights. The Court also considered the principle of legality, which presumes that Parliament does not intend to abrogate fundamental rights unless it does so clearly and unequivocally.