Judicial Review and the Charter

(2018) 25 Australian Journal of Administrative Law 52

17 Pages Posted: 18 Apr 2019

See all articles by Mark Aronson

Mark Aronson

University of New South Wales (UNSW)

Date Written: July 28, 2017

Abstract

It is difficult to characterise court action seeking relief or remedies for government breaches of Victoria's Charter of Human Rights and Responsibilities. The Act's remedies section is a model of obscurity. It provides no new remedies, and probably bans damages for breach. It may even require joinder of Charter and non-Charter causes of action. It does not ban judicial review's remedies, whose key concepts in non-Charter contexts are jurisdictional error, nullity, and invalidity. In Charter contexts, however, those terms are almost always a distraction. Judicial determinations of Charter breaches are more direct than supervisory. Further, nullity or invalidity are the usual outcomes of judicial review's remedies, and their premise is the governing law's meaning. It is improbable in the extreme to impose such a meaning upon the Charter. The real limitation on remedies lies not in the remedies section itself, but in the Act's failure to empower ongoing court oversight of government responses to judicial declarations of systemic rights violations.

Keywords: judicial review, administrative law, human rights, remedies, public law

JEL Classification: K00, K10, K19, K20, K23, K40

Suggested Citation

Aronson, Mark I., Judicial Review and the Charter (July 28, 2017). (2018) 25 Australian Journal of Administrative Law 52, Available at SSRN: https://ssrn.com/abstract=3363461 or http://dx.doi.org/10.2139/ssrn.3363461

Mark I. Aronson (Contact Author)

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

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