An important development in the interpretation of law in Victoria is the adoption by parliament of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”). This parliament-made law seeks to ensure that certain human rights are taken into account when developing, interpreting and applying Victorian law and policy. The Charter Act came into force on 1 January 2007, although the obligation of public authorities to consider and act consistently with human rights and the courts to interpret and apply legislation in accordance with the Charter Act became effective on 1 January 2008.
The rights in the Charter Act come mainly from an international human rights document, the United Nations International Covenant on Civil and Political Rights (1966). The rights included in the Charter Act are:
• the right to life; freedom of movement;
• freedom of expression and assembly;
• the right to liberty; and
• the right to a fair hearing and protection from retrospective laws.
The Charter Act does not allow courts to declare a law that is inconsistent with the Charter Act invalid, but requires courts and tribunals, as far as possible, to interpret and apply legislation consistently with these human rights. If this is not possible, the Supreme Court can issue a “declaration of inconsistent interpretation”. The government must then respond to this declaration within six months.
However, there is legal uncertainty about how to correctly make a declaration of inconsistent interpretation, given the varied views of High Court justices on this subject. In Momcilovic v The Queen (2011) 245 CLR 1, three justices considered the power to make a declaration to be invalid.
The Charter Act can, however, provide a basis for challenging government decisions. This was demonstrated by a series of Supreme Court and Court of Appeal decisions in 2016 and 2017 that decided that Orders in Council to establish certain youth justice and remand centres – under the Children, Youth and Families Act 2005 (Vic) – were unlawful under section 38(1) of the Charter Act. See Certain Children v Minister for Families & Children (No 2) (2017) 52 VR 441.