On 8 September 2011 the High Court handed down its judgment in Momcilovic v The Queen  HCA 34.
That case involved an appeal against a criminal conviction under the Drugs and Controlled Substances Act 1981 (Vic.). The Victorian Court of Appeal had construed that Act in a way that allowed for the reversal of the onus of proof in relation to a charge against the accused of illegal possession of drugs. The Act so interpreted was seemingly in contravention of the human right to be presumed innocent until proven guilty in criminal proceedings protected by.s.25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic.)(‘the Charter’).
Among the issues considered by the High Court in the proceedings was the constitutional validity of the Charter. The Charter sets out the human rights that are to be protected in Victoria and provides for a number of indirect mechanisms for their protection. Disappointingly, however, the Charter does not create legally enforceable rights for the enforcement of the human rights it proclaims.
In Momcilovic the Charter was examined by the High Court to determine whether these indirect mechanisms were constitutional. Although, many justices of the Court upheld the appeal on other grounds, the overall effect of the decision was that no part of the Charter was held to be unconstitutional. However, the High Court appears not to have come to a clear result in relation to the mechanism in s.32 of the Charter allowing a Court to declare that legislation is incompatible with human rights. Such declarations have no legal effect but the Attorney-General must receive a copy of them.
The seeming constitutional validity of the Charter and the similar Human Rights Act 2004 in the Australian Capital Territory after the decision in Momcilovic may have implications for Indigenous peoples’ rights to land in both jurisdictions.
Section 19(2) of the Charter protects the rights of Indigenous people to cultural and spiritual connections they have with land in Victoria under traditional laws and customs. Similarly, section 27 of the Human Rights Act in the ACT protects the cultural rights of minorities, including Indigenous peoples.
The effect of the High Court’s decision in Momcilovic appears to be that Indigenous people in Victoria and the ACT can validly invoke the mechanisms in those Acts to argue for the maintenance of their ancestral connection with lands. Although it is disappointing that the Charter and Human Rights Act in the ACT don’t create legally enforceable rights to the human rights stated in them, the mechanism that are in those Acts may prove useful additional tools for enforcing Aboriginal rights to land in those jurisdictions.