Law report 23 March 2010
This was a really interesting story on Radio National's Law Report about the dynamics between the Victorian government and judiciary over Victoria's Charter of Rights and Responsibilities. It talks about an important test case surrounding strict liability for drug possession.
Other links:
Case on Austlii
Article in the Australian
Thursday, March 25, 2010
The intriguing case of Vera Momcilovic
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4 comments:
The Human Rights Law Resource Centre has a useful page for understanding this case it is available at:
http://www.hrlrc.org.au/court-tribunal/victorian-court-of-appeal/r-v-momcilovic-2010-vsca-50-17-march-2010/
I think it is interesting that the Court was willing to resort to s 36(2) under the Charter of Human Rights and Responsibilities Act 2006 (Vic). This appears to be a significant departure from UK law. The UK law requires that a declaration (under the Human Rights Act 1998) be used as a last resort, this was indicated in the parliamentary debates relating to the HRA and in the case R v A (No 2)[2001] 2 WLR 1546
This article is especially interesting in light of an article I found stating that the Labor government has abandoned the proposed Bill of Rights.
The link to the article is: http://www.liberal.org.au/Latest-News/2010/04/21/Barnett-welcomes-Labor-humiliating-backdown-on-Bill-of-Rights.aspx
I haven't read this case, but I do know both the ACT and Victorian Human Rights legislation do not invalidate any Acts of Parliament which are inconsistent with their respective Human Rights Acts. If an Act is found to be inconsistent, the Court would merely declare that the Act in question is inconsistent but still legal.
It is interesting to note that such a regime would not work at the Commonwealth level, as the High Court cannot constitutionally make declarations. If a national Human Rights framework were implemented, it would have to be entrenched.
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