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A bad trip for health-related human rights: Implications of Momcilovic v the Queen (2011) 85 ALJR 957

Vines, Tim; Faunce, Thomas

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Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the...[Show more]

dc.contributor.authorVines, Tim
dc.contributor.authorFaunce, Thomas
dc.date.accessioned2015-12-10T23:01:51Z
dc.identifier.issn1320-159X
dc.identifier.urihttp://hdl.handle.net/1885/61771
dc.description.abstractMomcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.
dc.publisherThe Law Book Company
dc.rightsCopyright Lawbook Co. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited.
dc.sourceJournal of Law and Medicine
dc.subjectKeywords: article; Australia; drug control; human; human rights; legal aspect; Australia; Drug and Narcotic Control; Human Rights; Humans
dc.titleA bad trip for health-related human rights: Implications of Momcilovic v the Queen (2011) 85 ALJR 957
dc.typeJournal article
local.description.notesImported from ARIES
local.identifier.citationvolume19
dc.date.issued2012
local.identifier.absfor180123 - Litigation, Adjudication and Dispute Resolution
local.identifier.ariespublicationu4046278xPUB638
local.type.statusPublished Version
local.contributor.affiliationFaunce, Thomas, ANU College of Law, ANU
local.contributor.affiliationVines, Tim, Civil Liberties Australia
local.bibliographicCitation.issue4
local.bibliographicCitation.startpage685
local.bibliographicCitation.lastpage698
dc.date.updated2020-07-06T08:31:41Z
local.identifier.scopusID2-s2.0-84866457420
local.identifier.thomsonID000216462500006
dcterms.accessRightsOpen Access
dc.provenanceThe permission to archive the version was archived in ERMS2988179. This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as "Vines, Timothy, and Thomas Alured Faunce. "A bad trip for health-related human rights: Implications of Momcilovic v the Queen (2011) 85 ALJR 957." , Journal of Law and Medicine, Vol. 19, p. 685-698, (2012).". For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase
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