An important development in the interpretation of law in Victoria is the adoption by parliament of the Charter of Human Rights and Responsibilities A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 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 Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. 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 A formal, written agreement that creates a legal obligation, in a deed or on a certificate of title. For example, a property developer might add a covenant to every block of land in a subdivision to stop anyone building a house there unless it is made of brick. on Civil and Political Rights (1966). The rights included in the Charter Act are:
The Charter Act does not allow courts to declare a law that is inconsistent with the Charter Act Not valid; with no legal effect and not enforceable at law. For example a legal provision or document may be invalid because it is not in proper legal form., 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 An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. can issue a ‘declaration of inconsistent interpretation’. The government must then respond to this declaration within six months.
- the right to life; freedom of movement;
- freedom of expression and assembly;
- the right to liberty; and
- the right to a fair The time and place at which a court or tribunal hears the parties argue their case and makes a decision. and protection from retrospective laws.
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 The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. 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.