Judicial Review and the Charter
(2018) 25 Australian Journal of Administrative Law 52
17 Pages Posted: 18 Apr 2019
Date Written: July 28, 2017
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: Suggested Citation