Parliamentary Sovereignty and Dialogue Under the Victorian Charter of Human Rights and Responsibilities: Drawing the Line between Judicial Interpretation and Judicial Law-Making

Monash University Law Review, Vol. 33, No. 1, 2007

Monash University Faculty of Law Legal Studies Research Paper No. 2007/01

64 Pages Posted: 3 Mar 2009 Last revised: 15 Apr 2009

See all articles by Julie Debeljak

Julie Debeljak

Monash University - Faculty of Law

Date Written: February 16, 2009

Abstract

In 2005, the Victorian Government established the Human Rights Consultation Committee to undertake a community consultation about the state of rights in Victoria. The main recommendation of the Committee was the enactment of a domestic rights instrument for Victoria. The Victorian Government accepted the recommendation and, by mid-2006, the Victorian Parliament had enacted the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter is based largely on the British Human Rights Act 1998 (UK) ('HRA'). This article explores some of the substantive difficulties with the adoption of the British model given the twin stated aims of the Victorian Government to preserve parliamentary sovereignty and to establish an educative inter-institutional dialogue. In particular, it explores how the mechanisms adopted to preserve parliamentary sovereignty - the s 32 judicial power of rights-compatible interpretation and the s 36 judicial power of declaration - may, in fact, undermine parliamentary sovereignty, threaten the educative dialogue amongst the differently placed, skilled and motivated arms of government, erode the justificatory and accountability aspects of rights instruments, and undermine the protection of rights.

Keywords: Charter of Human Rights and Responsibilities Act 2006 (Vic), Human Rights Act 1998 (UK), human rights, parliamentary sovereignty, bill of rights

JEL Classification: K0, K00, K19, K39

Suggested Citation

Debeljak, Julie, Parliamentary Sovereignty and Dialogue Under the Victorian Charter of Human Rights and Responsibilities: Drawing the Line between Judicial Interpretation and Judicial Law-Making (February 16, 2009). Monash University Law Review, Vol. 33, No. 1, 2007, Monash University Faculty of Law Legal Studies Research Paper No. 2007/01, Available at SSRN: https://ssrn.com/abstract=1344839

Julie Debeljak (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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