Mission Impossible: ‘Possible’ Interpretations Under the Victorian Charter and Their Impact on Parliamentary Sovereignty and Dialogue
Marius Smith (ed), Human Rights 2006: The Year in Review (Castan Centre for Human Rights Law, Melbourne, 2007) 169-89,
13 Pages Posted: 18 Aug 2010 Last revised: 27 Mar 2013
Date Written: 2006
After a brief overview of the Victorian Charter of Human Rights and Responsibilities Act 2006, this paper will assess the Charter against the two motivating forces of the Victorian Government – those of retaining parliamentary sovereignty and promoting dialogue and education. In particular, it will critique the interpretative and declaration powers conferred on the judiciary, and explore how these mechanisms may in fact undermine parliamentary sovereignty (and thereby expose the judiciary to claims of activism), distort the educative dialogue, and undermine the justificatory and accountability requirements of rights instruments – in other words, how the Charter promotes parliamentary sovereignty at the expense of rights protection. It concludes by way of brief reference to a stronger model of rights instrument – the Canadian model – which more successfully protects rights whilst retaining parliamentary sovereignty and establishing a dialogue.
Keywords: human rights, Human Rights Charter, Charter of Human Rights and Responsibilities Act 2006, Victorian Government, judicial power, judicial activism, parliamentary sovereignty, Debeljak
JEL Classification: K00, K10, K30, K40
Suggested Citation: Suggested Citation