The Law Handbook 2024

4 Section 1: Understanding our laws and courts but not identical facts can be decided differently. If this happens, reasons will usually be given as to why this case should be treated differently. Each case is decided on its own facts. The highest court in Australia is the High Court, which consists of seven judges and is based in Canberra. The chief justice of the High Court is Australia’s most senior judge. The High Court need not follow its own earlier decisions, or precedents, and can make new law by deciding (with a majority of judges agreeing) to change the law. The High Court did this with the landmark Mabo decision of 1992, when the judges decided to abandon what was then the established law on Aboriginal title to land (see ‘Aboriginal and Torres Strait Islander law’, below). Parliament-made law overrules judge-made law Parliament-made law overrules judge-made law if both apply to the same problem. However judge- made law still applies in many areas and the practice of following previous court decisions continues today. Not only do judges continue to develop the law in areas not covered by legislation, they also have an important role in interpreting legislation when there is a dispute about the meaning or application of a section of an Act. The decisions that judges make in interpreting Acts become part of the common law, which other courts will refer to and follow. Charter of Human Rights and Responsibilities 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) (‘ Human Rights Charter ’). 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 Human Rights Charter 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 Human Rights Charter became effective on 1 January 2008. The rights in the Human Rights Charter come mainly from an international human rights document, the United Nations International Covenant on Civil and Political Rights (1966) . The rights included in the Human Rights Charter 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 Human Rights Charter does not allow courts to declare a law that is inconsistent with the Human Rights Charter 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 Human Rights Charter 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 Human Rights Charter. See Certain Children v Minister for Families & Children (No 2) [2017] 52 VR 441. The constitutions The Governor-General and the state governors The Commonwealth of Australia and each Australian state and territory have their own constitutions. Under these constitutional arrangements, the head of state is the King of Australia, who is also the King of the United Kingdom and the head of the Commonwealth of Nations (formerly called the British Commonwealth). The Governor-General