Dear Colleagues;
I suspect the lengthy judgment delivered yesterday by the High Court of Australia in Momcilovic v The Queen [2011] HCA 34 (8 September 2011) http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html will be picked over by lawyers and academics for many years. The case itself was a criminal law matter, but because it involves many general comments on the operation of one of the two attempts by Australian States to introduce a "Charter of Rights" it will no doubt have long-term consequences for private law as well.
I found the attached 2-page summary issued by the court registry very helpful as providing something of a handle on a complex and confusing case. The bottom line seems to be that a majority upholds as valid the provisions of the Victorian Act requiring legislation to be interpreted consistently with human rights standards (although in effect giving that provision a fairly narrow scope.) There is only a 4-3 majority holding that s 36 of the Act is valid in allowing a "declaration" by the Victorian Supreme Court that legislation is compatible with human rights (the minority holding that this is fundamentally incompatible with judicial power and hence invalid under Kable.)
Heydon J, as always, goes his own way but I must confess to a sneaking sympathy for many of the comments he makes about the drafting of human rights obligations and the foolishness of asking judges to make these sort of decisions.
Each of the judgments, of course, has to consider how the UK courts are dealing with their Human Rights Act and whether the cases there should be followed in Australia. In general the feeling seems to be that the situations are different and the UK decisions do not provide great help in interpreting the Australian legislation.
Regards
Neil


Neil Foster
Senior Lecturer
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/