Canberra catches up with Victoria on interpretation

Yesterday, the ACT Legislative Assembly – the first Australian parliament to enact a human rights statute – passed a major set of amendments to its Act. The first half of the bill is a series of changes to mirror Victoria’s Charter.

The ACT’s current interpretation mandate – differently worded to the Victoria’s – was almost meaningless, as it was expressly ‘subject to’ a provision that required ACT courts to prefer an interpretation that would ‘best achieve the purpose’ of the legislation being interpreted. The new mandate, by contrast, is the same as Victoria’s, in requiring only that the rights compatible interpretation be ‘consistent with’ that purpose. So, ACT courts, like Victorian ones, will now be required, when confronted with two interpretations that are both consistent with a provision’s purpose, to choose the one that is compatible with human rights, even if it doesn’t serve that purpose as well as an incompatible interpretation. In addition, the  ACT has changed its reasonable limits provision to be much closer to Victoria’s (and South Africa’s) by including the same set of criteria to judge reasonableness by. The ACT and Victorian interpretation mandates and reasonable limits provisions  are now so similar that decisions in one jurisdiction on a particular provision will surely be precedents in the other jurisdiction for a similar provision. At least, that’ll be true where the rights involved are sufficiently similar in each case (which they mostly are.)

It’s not all just catch-up. The ACT’s interpretation mandate goes further than Victoria’s in two respects. First, it covers ‘Territory laws’, which include Acts and ‘statutory instruments’. The latter term is somewhat broader than the ‘subordinate instruments’ covered in Victoria, as it extends to non-legislative instruments made under a statute, a formulation that includes things like search warrants. Second, the ACT mandate is sensible not subject to the Victorian Charter’s silly transitional provisions. Indeed, there isn’t even a delayed commencement for the changes to the mandate, in contrast to the Charter’s one year delay. So, it may be that Victorian courts will be following ACT precedents, rather than the reverse.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s