The applicant, Vera Momcilovic, was convicted for trafficking of drugs found in her apartment. Section 5 of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’) imposes on the applicant the legal burden of proving to the Court that she was not in possession of the drugs. The Court held that it was not ‘possible’ to interpret s 5 consistently with the right to the presumption of innocence. On its ordinary meaning, s 5 imposed a legal burden on the accused. Since this was the clear intent of parliament, the Court found that it was not possible to ‘read down’ the legal burden in section 5 of the DPCS Act to an evidential one. Once again the decision confirms that s 32 of the Charter does not operate as a ‘special’ rule of statutory interpretation that permits courts to depart from the ordinary meaning of legislation.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VSCA/2010/50.html.

Editors Note:
A special leave application has been made to the High Court of Australia. It is expected that the case will be listed in June/ July 2010.

However, it is precisely this whole-hearted, bipartisan acceptance of human rights that we must be wary of. There is the tendency to take human rights’ claim to universality at face value. Ostensibly, human rights are the province of the oppressed, however, no matter how popular a charter may be, it will and must be implemented by those in power.

Postcolonial questions must be raised about the extent to which a national human rights charter can be pluralistic. Our concern here must be to ensure that any national charter would not further entrench current patterns of cultural dominance in Australia – namely, any national charter should strive to not privilege the values of Judeo-Christian Anglo-celtic white Australia.

Generally speaking, the likely primacy that would be given to civil and political rights over economic and social rights in any proposed charter reflects a Western liberal tradition. In the NHRC’s recommendations, it was recommended that while civil and political rights should be justiciable, economic and social rights should not lead to a cause of action. Civil and political rights can serve to mask systemic inequalities (arising from Australia’s colonial ‘past’) – formal equality with regards to the right to silence, for example, is not sufficient where particular social groups don’t have the required education to understand that right, or who live in economic and social conditions that foster violence and crime.

Despite these criticisms and concerns, I do not believe that a national charter of human rights would be a negative step. A charter would still achieve a number of very important goals. Obviously, a charter leading to causes of action provides avenues for redress, but on a wider level a charter would also help us to develop a language of shaming. While not always credible amongst practitioners of power politics, moral persuasion has a very important role to play in shaping public discussion. Many of the issues facing Australians today, in particular the rights and well-being of Indigenous Australians, can only be resolved through a shared, national discourse. A national charter of human rights could be seen as setting the agenda for that national discourse.

In addition, there is the danger that the international human rights regime normalises the idea of the West as free from human rights abuses. Australian media coverage focuses almost exclusively on countries such as China as human rights abusers. In fact, there was definitely the sense that students in my international human rights law class found it easier to identify human rights issues abroad than at home. We only need to look at Australian reactions to accusations of racism (in the wake of the attacks on Indian students and the Hey Hey It’s Saturday blackface skit) to see that we are desperately in need of a shared language with which to publicly discuss Australia’s human rights failings without being having our national loyalties questioned.

Nowhere has this need for a shared language of shaming been more apparent than in the debate over the NT Intervention. Commenting on the Intervention, Marcia Langton’s language leaves no room for discussion. She says that it is an “indulgent fantasy to require ‘consultation’ before intervening to prevent crimes being committed.” This attitude gets to the very heart of why a national charter of human rights, properly debated and supported by the Australian people, is so important. Without it, politicians and commentators are able to use rights-based rhetoric (the ‘sacred’ rights of the children) to implement programs at the expense of other rights (the rights of Indigenous people to self-determination, and an active role in the political process).

That said, we have some way to go before a charter can be truly pluralistic. Perhaps the best way forward is to take human rights’ claim to universality with a grain of salt – and rather than seeing the charter as a final, definitive expression of our morality we should see it as a platform for discussion and dialogue.

–André Dao

Sir Gerard Brennan
Jeremy Gans
Melissa Conley Tyler
Robin Inglis
Mary Quinn and Grace Wilson
Gardner
Pat Hoffie
Brian Walters
Foyster
Professor Steven Greer
Lex Lasry
Eugene Koh