New year’s resolutions

Last night’s firework display marked the moment when the Charter of Human Rights and Responsibilities Act 2006 (Vic) (a.k.a. the Charter) became fully operational. Most of the Charter commenced with last year’s fireworks, but the commencement of Divisions 3 and 4 was delayed for a year, supposedly to allow courts and public authorities to ready themselves.

These two divisions contain two new year’s resolutions that the Victorian parliament has made on behalf of the other branches of the government:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

38 (1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Divisions 3 and 4 also contain two provisions about what happens if these resolutions can’t be or weren’t followed:

36 (2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

39 (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

A lot of this blog will be about these four provisions, which I refer to as the interpretation mandate, the conduct mandate, the declaration power and the remedies power. (Better shorthand name suggestions appreciated!)