Momcilovic v The Queen & Ors [2011] HCATrans 16

The High Court of Australia heard an appeal in *Momcilovic v The Queen & Ors*. The case concerned the constitutional validity of a Victorian law, the *Drugs, Poisons and Controlled Substances Act 1981* (Vic), which created a reverse onus of proof provision in relation to certain drug offences. The appellant, Mr Momcilovic, had been convicted of trafficking in a commercial quantity of methylamphetamine.

The central legal issue before the High Court was whether section 8 of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic), which presumed that a person found in possession of a certain quantity of a drug intended to traffic it, was inconsistent with the implied freedom of political communication protected by the Australian Constitution. Specifically, the Court had to determine if the presumption imposed an impermissible burden on the implied freedom by requiring an accused to disprove an element of the offence, thereby potentially inhibiting political discussion about drug laws and law enforcement.

The High Court, by majority, held that section 8 of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic) was constitutionally valid. The majority reasoned that the implied freedom of political communication does not confer an absolute right to engage in communication without legal consequence, and that laws imposing a reverse onus of proof are not automatically invalid. The Court applied the proportionality test, considering whether the law was reasonably appropriate and adapted to serve a legitimate purpose in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The majority found that the presumption served the legitimate purpose of combating drug trafficking and that its impact on political communication was not so significant as to render it invalid.

The appeal was dismissed.