By a majority of 6–1, the Court held that s 32(1) of the Charter, which requires that Victorian legislation be interpreted consistently with human rights, is an ordinary principle of statutory interpretation that does not empower the courts to radically re-interpret legislation or subvert parliament’s intent. The Court affirmed that, consistent with the rule of law, the judiciary has an important role to play in upholding human rights. Far from being undemocratic, an independent judiciary which is empowered to interpret laws to protect rights and freedoms is a fundamental feature of our liberal democracy.
By a majority of 4–3, the High Court also held that the power conferred by parliament on the courts to make a declaration, notifying parliament where legislation may be incompatible with human rights, is valid. Declarations of Inconsistent Interpretation under the Charter play an important role in calling the attention of parliament and the people to laws that may be inconsistent with human rights. Such declarations do not affect the validity of legislation, but instead act as a trigger for parliament to consider whether a particular law should be amended to better protect the human rights of all Victorians.
The High Court’s extensive consideration of the Charter arose in an appeal by Vera Momcilovic against her conviction for drug trafficking. The Court quashed her conviction and ordered a re-trial. It is important to note, however, that the conviction was not quashed because of the Charter. Instead, the High Court upheld the appeal on the basis that the Victorian courts in which she was convicted had misconstrued the operation of the Drugs Act.
Any suggestion that the Charter shifts power to judges and usurps parliamentary sovereignty can be laid to rest. There is also no longer any doubt, if ever there was, that the Charter is valid and constitutional.
The judgment is available at http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html.
PHIL LYNCH is Executive Director of the Human Rights Law Centre.