Drugs law at odds with rights charter: judges

March 26, 2010

A DECLARATION by Victoria’s highest court that drug law is inconsistent with the human rights charter will force the state government to justify the limits placed on people’s rights.

But Attorney-General Rob Hulls says the government is not obliged to change the law.

The Court of Appeal ruled last week the human rights of a woman convicted of drug trafficking were breached because she had to prove an amphetamine stash found in her flat did not belong to her.

The court said this breached the presumption of innocence outlined in the charter.

Yesterday the court declared that a section of the Drugs Act, which deems drugs found at a person’s home to be in their possession, cannot be interpreted consistently with the charter.

Vera Momcilovic, 43, was convicted of amphetamine trafficking and jailed for a minimum of 18 months. She claimed drugs and money found in her flat belonged to her boyfriend and she did not know about it.

Court of Appeal president Justice Chris Maxwell and Justices David Ashley and Marcia Neave ruled Ms Momcilovic was properly convicted but suspended the rest of her sentence.

The judges said presuming a person’s guilt unless they can prove to the contrary ”is not so much an infringement of the presumption of innocence as a wholesale subversion of it”.

Rachel Nicolson, of law firm Allens Arthur Robinson, said in future the government would have to provide evidence why a law was able to limit human rights. ”Departments are going to have to understand they need to think whether there is a proper policy method and proper evidence for limiting rights,” she said.

Mr Hulls said: ”The charter simply requires Parliament to respond to the court’s declaration but places no obligation on the government to change the law.”

He said the provision dealt with in the Momcilovic case would be considered as part of a review of the Crimes Act and the law on illicit drugs.

Phil Lynch, of the Human Rights Law Resource Centre, said the declaration meant ”people need to consider human rights in the first instance and not as an afterthought”.


This article was published in The Age. The original story can be found here: http://www.theage.com.au/victoria/drugs-law-at-odds-with-rights-charter-judges-20100326-r084.html