Dr Julie Debeljak*

Deputy Director, Castan Centre for Human Rights Law, Monash University

Mission Impossible: Possible Interpretations Under the Victorian Charter and Their Impact on Parliamentary Sovereignty and Dialogue

1. INTRODUCTION

The Victorian Parliament enacted the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the ‘Charter’) in 2006 and it becomes fully operational on 1 January 2008. This was the culmination of a very successful community consultation(1) undertaken by the government appointed Human Rights Consultation Committee. The Government accepted the central recommendation of the Committee that civil and political rights must be promoted and protected through ordinary legislation, modelled closely on the British Human Rights Act.(2) This model is explicitly designed to preserve parliamentary sovereignty over rights issues, and promote an educative dialogue intra-governmentally and with the community.

This outcome should not come as a surprise. The Government’s discussion paper which started the community consultation, the Statement of Intent, pre-empted these matters. First, the Statement expressed a preference for rights instruments that preserve parliamentary sovereignty, even naming the British model.(3) Secondly, the Government sought a role for the courts that promoted ‘dialogue, education, discussion and good practice rather than litigation.’(4)

After a brief overview of the Charter, 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.

2. BRIEF OVERVIEW OF THE CHARTER

The Charter confers statutory protection of civil and political rights, based primarily on the rights contained in the International Covenant on Civil and Political Rights (1966) (‘ICCPR’).(5) The rights are found in ss 7 to 27. The essence of each right reflects its ICCPR equivalent, subject to linguistic refinements and the omission of some rights because of the jurisdictional competence of Victoria.(6)

The Charter, however, recognises that rights are not absolute, adopting two mechanisms enabling rights to be limited. First, it contains a general limitations clause. Section 7(1) states that the Parliament seeks to protect and promote the rights listed in ss 8 to 27, whilst s 7(2) provides that the protected rights may be subject ‘to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’ Resolution of such conflicts comes down to a balancing act, with s 7(2) specifying the following factors: (a) the nature of the right; (b) the importance of the purpose of the right; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purposes; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve – a minimum impairment test.(7) Secondly, some individual rights contain limitations powers, either as qualifications to the breadth of the right itself,(8) or as specific articulations of limitations relevant to that right.(9)

There are two major ways in which the protected rights impact on the Victorian system of government, both being modelled on the HRA. The first impact relates to legislation – the focus of this paper. Section 32 imposes an interpretative obligation on the judiciary, which requires all statutory provisions to be interpreted in a way that is compatible with protected rights, so far as it is possible to do so consistently with the statutory purpose.(10) This gives rise to a strong rebuttable presumption in favour of rights-consistent interpretations of legislation,(11) which is avoided only by clear legislative words or intention to the contrary.

Where legislation cannot be read compatibly, the judiciary is not empowered to invalidate it. Rather, the Supreme Court of Victoria or the Victorian Court of Appeal may issue a ‘declaration of inconsistent application’ under s 36.(12) A declaration does not affect the validity, operation or enforcement of the legislation, or create in any person any legal right or give rise to any civil cause of action.(13) A declaration is an alarm bell of sorts, allowing the judiciary to warn the executive and parliament that legislation is inconsistent with the judiciary’s understanding of the protected rights,(14) and prompts them to review their rights assessment of the legislation.

Under s 37, within six months of the declaration, the relevant Minister must prepare a written response to be laid before Parliament and published in the Government Gazette. In terms of substance, the response may take one of three forms. First, the representative arms may decide to do nothing, leaving the judicially-assessed rights-compatible interpretation in place or the judicially-assessed incompatible law in operation – two very different outcomes.(15) Secondly, parliament may decide to pass ordinary legislation in response to either an interpretation or a declaration. Such legislative accommodation of rights usually involves refinement of a limitation on rights.(16) Thirdly, under s 31(1), parliament may choose via ordinary legislation to override the relevant right in response to an interpretation or declaration, thereby avoiding the rights issue for five years.(17) Throughout, parliamentary sovereignty is retained – the judiciary cannot invalidate legislation enacted by the representative arms, and the latter decide whether or not, and how, to amend the impugned legislation.(18)

The second impact of the Charter relates to the behaviour of ‘public authorities’. This is not the focus of the paper, so a brief overview will suffice. Section 38 provides that it is unlawful for a public authority to act incompatibly with, or to fail to give proper consideration to, a human right. Under s 39, no new cause of action is created;(19) rather, a person can only seek redress if they have pre-existing relief or remedy in respect to the act of the public authority, in which case that relief or remedy may also be granted for Charter unlawfulness.

3. THE CHALLENGES OF THE CHARTER

The difficulty with the Charter lies in the way parliamentary sovereignty has been preserved. The cornerstone of parliamentary sovereignty is that the elected arms of government make laws, while the judicial arm interprets and enforces the law. It is not legitimate to empower judges to make law or to invalidate legislation because they are not elected. Thus, in an attempt to preserve parliamentary sovereignty, the Charter limits judicial powers to those of interpretation and non-enforceable declaration only, rather than conferring powers of judicial law-making or invalidation. In addition, the interaction between the arms of government is characterised as a dialogue about rights and their limitations, rather than a judicial monologue under which judges are the final arbiters of rights, with the executive and parliament shaping their policy and laws to fit judicial interpretations of rights.

Unfortunately, the solution may not secure its purpose. First, the line between “proper” judicial interpretation and “improper” judicial law-making is far from clear. Secondly, the power of judicial interpretation is more potent than judicial declaration. Thirdly, these factors combined are likely to result in allegations of improper judicial activism and calls for judicial deference which will, in turn, influence where the judiciary draws the line between interpreting on the one hand, and law-making and declarations on the other. Where, why and how this line is draw will, in turn, impact on parliamentary sovereignty and rights protection as an educative dialogue. Let us consider each issue in turn.

4. JUDICIAL INTERPRETATION VERSUS JUDICIAL LAW-MAKING

First, the line between judicial interpretation and judicial law-making is far from clear. At what point does a judicially-assessed rights-compatible interpretation in truth become a judicial re-writing of legislation? British experience is highly instructive, given that the Charter is modelled on the s 3 interpretation and s 4 declaration powers of the HRA. In Britain, the distinction has proved ‘elusive’,(20) with s 3 being described as ‘dangerously seductive, for there is bound to be a temptation to apply the section beyond its proper scope and trespass upon the prerogative of Parliament in what will almost invariably be a good cause.’(21)

Let us explore the judicial task in more detail. The task can be split between the classic ‘rights questions’ and the unique ‘Charter/HRA questions’. There are two ‘rights questions’. First, the judiciary must decide whether the legislation limits the right in question.(22) Secondly, if so, the judiciary must assess whether the legislation is a justifiable limitation on the right, in the case of the Charter, under the general limits power or a specific limitation. Accordingly to Woolf CJ in the Donoghue case,(23) if the legislation is an unjustifiable limit the right we ask the ‘Charter/HRA questions’: can it be saved by interpretation? First, the court must alter the meaning of the legislative words, but the alteration is limited to ‘that which is necessary to achieve compatibility.’(24) Secondly, the court must decide whether the altered legislative interpretation is ‘possible’.

Answering the ‘Charter/HRA questions’ in actual cases is highly controversial. There is no template of legislative alterations available and deciding whether a re-interpretation is “possible” is not an objective, forensic task. This is demonstrated by the following summary of judicial approaches to the interpretive obligation.(25)

In R v A (No 2) (R v A),(26) Lord Steyn stated that s 3 empowers judges to read down express legislative provisions or read in words so as to achieve compatibility.(27) His Lordship stated that judges could go so far as the ‘subordination of the niceties of the language of the section’(28) and confirmed that ‘it will be sometimes necessary to adopt [a s 3] interpretation which linguistically may appear strained.’(29)

In Lambert,(30) Lord Hope recognised that s 3 may require the legislative words ‘to be expressed in different language’(31) in order to achieve compatibility. His Honour sanctioned “reading in”(32) except where reading in would contradict express provisions of necessary implications within legislation,(33) and reading in ‘must always be distinguished carefully from amendment.’(34)

In the Ghaidan case,(35) Lord Nicholls admitted that ‘s 3 itself is not free from ambiguity’(36) because of the word “possible”. His Lordship opined that s 3 may require ‘a court to depart from the unambiguous meaning the legislation would otherwise bear’ and from ‘the intention of the parliament which enacted the legislation.’(37) The elusive question is ‘how far, and in what circumstances, s 3 requires the court to depart from the intention of the enacting Parliament.’(38) This, in turn, depends on Parliament’s intention in enacting s 3 of the HRA which, acording to Lord Nicholls, allows courts to interpret legislative language ‘restrictively or expansively’, ‘to read in words which change the meaning of the enacted legislation’, to ‘modify the meaning, and hence the effect’ of legislation, and to imply words provided they ‘go with the grain of the legislation’.(39) Section 3 does not allow courts to ‘adopt a meaning inconsistent with a fundamental feature of legislation’, nor ‘to make decisions for which they are not equipped.’(40)

The salient point is that, no matter how many judicial expositions are offered, there is no clear line between interpretation and law-making and this will cause controversy. Now, scrutiny of the judiciary and debate about whether judges merely interpreted or actually legislated in particular cases, per se, is not a problem. However, because the difference between interpretation and law-making is imprecise, there will be no clear answer. At what point does expressing legislative intent in different language become judicial law-making? At what point does reading down, or reading in, parliamentary language by the judiciary become judicial law-making?

It will be impossible to determine such debates in an objective fashion. This makes allegations of improper judicial activism and law-making easy to make, but very difficult to defend or resolve. This has the real potential to undermine the independence and standing of the judiciary, the administration of justice, and the rights project. Recall the public and media reactions in Australia to previous rights-based judicial decisions,(41) such as, Mabo and Wik(42) - the land rights cases which attracted the ‘loudest and most shrill’(43) allegations of judicial activism – or even Dietrich(44) or the implied freedom of communications cases.(45) One very real impact of perceived judicial activism will be calls for increased judicial deference, with the increased judicial deference, with the concomitant risks for the inter-institutional dialogue and under-enforcement(46) of rights, issues to which we now turn.

5. POWER DIFFERENTIALS, JUDICIAL DEFERENCE AND INSTITUTIONAL DIALOGUE

5.1 Power Differentials

Let us now consider interpretation vis-à-vis declarations. The power of judicial interpretation is more potent than judicial declaration, because the judiciary achieves particular legislative outcomes with interpretation which it cannot achieve through declaration.(47) Through judicial interpretation, a law could operate in a manner different to that enacted (and even intended) by the representative arms, whereas a declaration does not impact on the validity, operation and enforcement of the law.(48) This may influence where the judiciary draws the line between interpretation and legislating, potentially encroaching on parliamentary sovereignty. Indeed, if the choice is between producing rights-respecting outcomes for litigants in particular cases through interpretation, or enforcing incompatible law in the case at hand coupled with a declaration, a preference for interpretation is understandable.

Two matters flow from this. First, once the power differential is understood, there may be calls for judicial deference (section 5). Secondly, it may result in the over-use of interpretation and the under-use of declaration (section 6). Let us look at these issues in turn.

5.2 Judicial Deference: The Solution to Power Differential?

5.2.(a) Judicial Deference as a Solution

The solution to the power differential is to find the correct balance between interpretation and declaration. The British judiciary has leaned toward judicial deference as the tool to achieve this balance. However, resort to judicial deference must be challenged on a number of fronts.

The first challenge is posed by the various bases upon which deference is being extended. For example, democratic accountability has justified judicial deference in decisions ranging from the allocation of resources,(49) to the eviction of tenants by registered social landlords,(50) to the quality of public housing,(51) to immigration control,(52) to planning decisions,(53) to the discriminatory provision of social security benefits,(54) to the regulation of mounted foxhunting with dogs,(55) to the denial of the right to vote to prisoners,(56) and to the treatment of suspected terrorists.(57)

There main weakness with deference based on democratic sentiment is that it creates problematic forms of inter-institutional dialogue. In my opinion, dialogue is ideally about exposing decision makers in each arm of government to the diverse perspectives on rights of those with different institutional roles and strengths, different forms of reasoning and different motivations. Each arm of government must respectfully listen to and critically analyse the viewpoints of the others, then review its own pre-conceived ideas against those other views, and be open to the persuasion of others – thereby achieving an educative interaction. In the words of Roach, the institutional dialogue:

allows courts to educate legislatures and society by providing principled and robust articulations of the values of the Charter … while allowing legislatures to educate courts and society about their regulatory and majoritarian objectives and the practical difficulties in implementing those objectives.(58)

Deference based on democratic accountability does not create a dialogue. Rather, judges are meant to reflect the democratic mainstream and be influence by the majority and the majoritarian institutions.(59) The non-majoritarian perspective of the judiciary goes unheard; and its unique reasoning based on fairness, justice and reasonableness goes unheard. Without the judiciary’s unique contribution, and a subsequent respectful, self-reflective and self-critical re-assessment of policy and legislation by the executive and legislature, the envisaged institutional dialogue becomes a self-satisfied monologue.

Secondly, there is ample opportunity for the expression of democratic concerns within the structure of the HRA/Charter without resorting to deference. When creating policy and translating that into legislation, the representative arms can place limits on the protected rights to further non-protected democratic values under s 7. If the judiciary finds a limit to be unjustifiable and alters the limit through judicial interpretation, the parliament can simply re-enact the limit in clear legislative terms. If the judiciary instead issues a declaration, the limit remains in force and the parliament simply relies on democratic sentiment to justify its limitation on rights. The HRA/Charter is not lacking in democratic solutions.

Thirdly, the HRA/Charter requires transparent justifications for representative decisions that limit rights. If the judiciary too readily defers to representative decisions, we do not get an independent review of the justifications offered. Moreover, as the representative arms realise that their reasons for justification are never thoroughly scrutinised and assessed, it may weaken the justificatory aspects of public decision-making.

Finally, there is an advantage in democratic sentiment being expressed by the representative arms through policy-making, law-making and responding to judicial re-interpretations or declarations, rather than relying on judicial deference – and this is accountability. Allowing judges to contribute their perspective about rights and their limits to the debate, unfiltered by deferential niceties, highlights the judicially-assessed cost of democratic action in rights-terms. The judicial perspective may not prevail, but at least the representative arms are forced to acknowledge and take responsibility for the judicially-assessed rights implications of their actions.

5.2(b) Other Solutions to the Power Differential

Some recent British jurisprudence suggests a more nuanced approach to resolving the power involved in judicial decision-making. In Prolife Alliance,(60) Lord Walker agrees with commentators that ‘[t]he need for deference should not be overstated’ and that ‘[i]t remains the role and responsibility of the Court to decide whether, in its judgment’(61) a right has been violated. Lord Hoffman also rejects the idea that deference characterises the new relationship between the judiciary and representative arms.(62) Rather, his Lordship insists that the rule of law and the separation of powers dictate that the judiciary decide which arm of government has the power to act and the limits of that power.(63) Such judicial allocation of decision-making power is based on ‘principles of law’, not ‘courtesy or deference.’(64)

There has also been judicial recognition that the HRA introduces a requirement of justification. Lord Steyn opines that ‘[a] culture of justification now prevails: it requires constitutional arrangements which differ from constitutional principles to be justified in the public interest.’(65) Lord Hoffman recognised that although the retention of parliamentary sovereignty allows parliament to legislate incompatibly with rights, there are political constraints on power: ‘the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.’(66)

5.3 Deference and Under-Enforcement of Rights

The final issue is the under-enforcement of rights. Whenever deference is extended, the standard of justification is reduced and rights are under-enforced. This creates problems. First, judicial under-enforcement of rights will inevitably result in judicial sanctioning of unjustifiable limitations on rights,(67) which amounts to a judicial abdication of responsibility as guardian of rights.(68) Secondly, under-enforcement may reduce the motivation of the representative arms to consider rights issues in planning policy and legislation if there is no real threat of accountability. Thirdly, under-enforcement replaces the educative dialogue with a representative monologue.

Finally, and most importantly, deference and the consequential under-enforcement of rights are not necessary given the structure of the HRA/Charter. Judicial deference is a tool to avoid judicial supremacy or judicial activism, and thereby protect parliamentary supremacy. However, the structure of the HRA/Charter does this already. First, the HRA/Charter protects parliamentary sovereignty and minimises judicial power by giving judges powers of interpretation and declaration only. Given that parliament remains sovereign, one could expect vigorous judicial contributions, with a rigorous, rather than deferential, application of the HRA/Charter.(69) Secondly, under the HRA/Charter judicial activism can be readily balanced by legislative activism, reducing the need for complex theories of judicial deference.

6. THE BALANCE BETWEEN INTERPRETATION AND DECLARATION

The final point to consider is the interaction between judicial interpretations and judicial declarations. There are two issues. First, if the power of interpretation vis-à-vis declaration is superior, there is an incentive for the judiciary to unduly favour the interpretation power and under-use the declarations power. Secondly, excessive and/or inappropriate use of judicial deference will result in the under-use of declarations. Judicial deference means that the judiciary avoids finding incompatibility in the first place (‘rights questions’),(70) such that the interpretation and declaration issues do not arise (‘HRA/Victorian Charter questions’).(71) The common issue is the tendency to over-use interpretation and under-use declaration, which may undermine parliamentary sovereignty and hinder the representative arms ability to contribute to the institutional dialogue.

The British parliamentary debates indicate that judicial interpretation and declaration are to operate in tandem. A preference for rights-compatible interpretations, rather than frequent declarations, was emphasised to preserve parliamentary sovereignty.(72) The British judiciary heeded this sentiment and focussed more heavily on interpretations than declarations in the first couple of years of the HRA. There was almost a reluctance to use declarations, and a presumption that a declaration ‘effectively forc[es] the executive, through Parliament, to change the law.’(73) This is simply not true. Sure, under the HRA the representative arms may choose to respond and the Charter requires a formal response within six months. However, the response may be total inaction, with retention of the offending law and the representative arms essentially rejecting the judicial perspective.

In contrast, statistics from the first four years of jurisprudence indicate a different picture. Lord Steyn, in Ghaidan, highlighted that the interpretative power was used in 10 cases, and the declaration power was used in 15 cases, of which five were reversed on appeal.(74) In His Lordship’s opinion, the statistics reveal ‘a question about the proper implementation’(75) of the HRA, given that interpretation was supposed to be the primary remedial mechanism. This position is flawed. As Klug and Starmer highlight, this parliamentary debate is not ‘a statement of law, nor … an actuarial prediction’, but rather a ‘political assertion’ about the state of British law at the enactment of the HRA. Moreover, if you consider the underlying principles of the HRA/Charter, the frequent use of declarations ought to be expected: declarations preserve parliamentary sovereignty and are one trigger for continuing contributions to the dialogue by the representative arms.(76)

The salient point is that the right balance must be struck between interpretation and declaration. That balance is difficult to predict and, at times, difficult to justify. However, declarations have a vital role to play in inter-institutional dialogue. A declaration is not confrontational or “activist” in itself; nor should judges use the interpretation power improperly to avoid declarations or extend undue deference. The structure of the HRA and Charter, and the consequent institutional dialogue, resolve fears about illegitimate judicial activism and law-making.

7. MISSED OPPORTUNITIES

Unfortunately the Victorian Government muted debate – or can I say ‘dialogue’ – over the appropriate model for rights protection in Victoria. The Statement of Intent clearly preferred the British model(77) and precluded consideration of an alternative model – the Canadian Charter. This is unfortunate because the Canadian Charter manages to preserve parliamentary sovereignty and establish an institutional dialogue, although it is a constitutional document which allows for judicial invalidation, and avoids the difficulties of the British HRA.

Let us focus on the two major problems of the HRA: first, the judicial power of re-interpretation. Under the Canadian Charter, if the judiciary decide a law is an unjustifiable limitation on a protected right, the judiciary is empowered to invalidate the law. The judiciary only need to answer the classic ‘rights questions’. The Canadian judiciary is not required to then answer the very contentious and imprecise ‘HRA/Charter questions’. Canadian judges are not asked to perform the invidious task of re-interpreting without legislating. This is a major advantage of the Canadian Charter given the problems of the ‘HRA/Charter questions’ discussed earlier.

The second problem is the power differential. Just as there is more power in judicial re-interpretation than in judicial declaration, similarly there is more power in judicial re-interpretation than judicial invalidation for the same reasons. However, the Canadian judges are only required to invalidate incompatible laws; they are not required to re-interpret. Judicial invalidation passes the power back to the representative arms to create a new, alternative law or to re-enact the impugned law notwithstanding the protected rights. Judicial re-interpretation will produce judicially-sanctioned legislation that is different to what the representatives enacted.

Thus, the argument that, in order to retain parliamentary sovereignty, judicial powers should be limited to interpretation rather than invalidation does not hold true. In Canada, parliamentary sovereignty is preserved by the use of general limitations powers and the s 33 override power, even though judges can invalidate legislation. In Victoria, instead, we must angst over “proper” judicial interpretation versus “improper” judicial law-making, the meaning of “possibility”, and deciphering when a re-interpretation is possible or when a declaration is required – in addition to the limits and override questions. To be sure, the Canadian Charter is not without controversy, but the HRA/Charter interpretation and declaration mechanisms add an additional layer of controversy which, frankly, the human rights project could do without. Human rights, per se, will be controversial enough.

In terms of process, the Government’s pre-emptive exclusion from the community consultation of the consideration of alternative models does not promote the type of educative dialogue it seeks to establish under the Charter. In terms of outcome, the Charter has the capacity to undermine the revered parliamentary sovereignty and sought after dialogue. Let us hope that dialogue established under the Charter is not modelled on the governments own community consultation process!

*  Dr Julie Debeljak (B.Ec/LLB(Hons), LLM (I) (Cantab), PhD), Lecturer at Law and Associate Director of the Castan Centre for Human Rights Law, Monash University. Dr Debeljak’s doctoral thesis compared and contrasted the domestic human rights protections in Australia, Canada and the United Kingdom: see Julie Debeljak, Human Rights and Institutional Dialogue: Lessons for Australia from Canada and the United Kingdom (PhD Thesis, Monash University, 2004).
1  Human Rights Consultation Committee (‘HRC Committee’), Victorian Government, Rights Responsibilities and Respect: The Report of the Human Rights Consultation Committee, 2005, 5.
2  Ibid 6.
3  Victoria Government, Statement of Intent, May 2005, [8].
4  Ibid [12].
5  The International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). Because the Charter only covers civil and political rights, excluding economic, social and cultural rights, the author considers it inappropriate to refer to the rights within the Charter as “human rights”. Throughout the article, the rights will be referred to as “rights” or “protected rights”.
6  Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 8.
7  The general limitations clause is based on the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 1 (‘Canadian Charter’). Oddly, the Explanatory Memorandum notes that the limitations clause is based on the Bill of Rights 1990 (NZ): Explanatory Memorandum, above n 6, 9. However, it is more honest to acknowledge the influence of the Canadian Charter, which predates the NZ legislation by eight years and upon which the NZ legislation was based. The specific list of factors is borrowed from the Constitution of the Republic of South Africa 1996 (RSA), s 36.
8  See Charter 2006 (Vic), s 11(3) (freedom from forced labour) and s 21 (right to liberty and security of the person).
9  See Charter 2006 (Vic), s 15. The right to freedom of expression may be subject to restrictions necessary to protect the reputation of others, and for the protection of national security, public order, public health or public morality.
10  See Human Rights Act 1998 (UK), c 42, s 3 (‘HRA’). The Charter is based on s 3, but adds the reference to ‘consistently with their purpose’.
11  See eg, Ghaidan v Godin-Mendoza [2004] UKHL 30, [50] (Lord Steyn) (‘Ghaidan’).
12  See HRA 1998 (UK) c 42, s 4. The nomenclature in the British legislation is ‘declaration of incompatibility’. It is unclear why the Victorian Government insisted on altering this to ‘declaration of inconsistent application’, as s 36 of the Charter is intended to operate in an identical fashion to s 4.
13  Charter 2006 (Vic), s36(5). The latter part of this subsection is linked to the legal proceedings available under s 39.
14  Charter 2006 (Vic), ss36(6) and (7).
15  For a discussion of examples of the first response mechanism under the HRA, see Julie Debeljak, Human Rights and Institutional Dialogue: Lessons for Australia from Canada and the United Kingdom (PhD Thesis, Monash University, 2004) ch 5.5.3(a) (‘Human Rights and Institutional Dialogue’).
16  For a discussion of examples of the second response mechanism under the HRA, see Ibid ch 5.5.3(b).
17  Override declarations are to be made only in exceptional circumstances and are subject to a five yearly renewable sunset clause: Charter 2006 (Vic), ss 31(4), (7) and (8). The ‘exceptional circumstances’ include ‘threats to national security or a state of emergency which threatens the safety, security and welfare of the people of Victoria’: Explanatory Memorandum, above n 6, 21.
18  Two additional provisions affect legislation: Charter 2006 (Vic), s 28 and 30.
19  This is in contrast to the British model.
20  Ghaidan [2004] UKHL 30, [27] (Lord Nicholls).
21  Ibid [61] (Lord Millett).
22  This involves determining the nature and scope of the right, the nature and scope of the impugned legislation, and comparing the two.
23  Id.
24  Ibid [75].
25  See generally Keir Starmer, ‘Two Years of the Human Rights Act’ [2003] European Human Rights Law Review 14,, 17; Francesca Klug and Claire O’Brien, ‘The First Two Years of the Human Rights Act’ [2002] Winter Public Law 649, 654.
26  R v A (No 2) [2001] UKHL 25 (‘R v A’). This case dealt with the admissibility of evidence in a rape trial under Youth Justice and Criminal Evidence Act 1999 (UK) c 23, s 41.
27  Ibid [44].
28  Ibid [45].
29  Ibid [44].
30  R v Lambert [2001] UKHL 37 (‘Lambert’).
31  Ibid [81].
32  Id.
33  Ibid [79].
34  Ibid [81].
35  Ghaidan [2004] UKHL 30.
36  Ibid [27].
37  Ibid [30].
38  Ibid.
39  Ibid [32] – [33]. Lord Rodger agreed with these propositions ([121], [124]), as did Lord Millett ([67]).
40  Ibid [33]. Lord Rodger agreed with these propositions ([121]), as did Lord Millett ([67]).
41  See eg, Debeljak, Human Rights and Institutional Dialogue, above n 15, 43-5.
42  Mabo v Queensland (No 2) (1992) 175 CLR 1 and Wik Peoples v Queensland (1996) 187 CLR 1.
43  Leslie Zines, ‘Judicial Activism and the Rule of Law in Australia’ in Campbell, T and Goldsworthy, J (eds), Judicial Power, Democracy, and Legal Positivism (Dartmouth, Aldershot, 1999) 391, 403. The allegations included the improper appeal to the expectations of the international community, the improper judicial (rather than parliamentary) assessment of contemporary Australian values, the uncertainty cast over property law, the fact that the court did not confine itself to the facts before it, and the improper use of history and emotive language: at 406-7. The High Court came under attack by Tim Fischer (then Deputy Prime Minister) before the decision, who complained of an unjustifiable delay in handing down the decision: HP Lee, ‘Subverting Judicial Independence’ (1998) 1 Constitutional Law and Policy Review 55, 56.
44  R v Dietrich (1992) 177 CLR 292.
45  Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times (1994) 182 CLR 104; Stephens v WA Newspapers (1994) 182 CLR 211; Cunliffe v Commonwealth (1994) 184 CLR 272; Levy v Victoria (1997) 187 CLR 579; Lange v Australian Broadcasting Commission (1997) 189 CLR 520.
46  See Ibid 230.
47  Jeremy Croft, Whitehall and the Human Rights Act 1998: The First Year (The Constitution Unit, University College London, London, 2002) 48.
48  See generally Lord Woolf, ‘Human Rights: Have the Public Benefited?’ (Paper presented at the Thank-Offering to Britain Fund Lecture, The British Academy, London, 15 October 2002) 7.
49  R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions and other cases [2001] UKHL 23 [70] (‘Alconbury’). This has been described as a ‘striking illustration of judicial deference’: Danny Nicol, ‘Are Convention Rights a No-Go Zone for Parliament?’ [2002] Autumn Public Law 438, 447. See, eg, R (Hooper & Ors) v Secretary of State for Work and Pensions [2002] EWHC Admin 191 [115] (‘Hooper No 1’).
50  Donoghue [2001] EWCA Civ 595 [69] – [72]; Sheffield City Council v Smart; Central Sutherland Housing Company Limited v Wilson [2002] EWCA Civ 04 [32], [35], [40] – [42] (‘Sheffield City Council’); Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271 [41], [78].
51  Lee v Leeds City Council; Ratcliffe and Ors v Sandwell Metropolitan Borough Council [2002] EWCA Civ 6 [49].
52  R (Isiko) v Secretary of State for the Home Department [2001] 1 FCR 633 [31]; Farrakhan [2002] EWCA Civ 606 [74].
53  Alconbury [2001] UKHL 23 [71] – [72], [129], [159].
54  R (Reynolds) v Secretary of State for Work and Pensions [2002] EWHC Admin 426, [27], [34]; R (Carson) v Secretary of State for Work and Pensions; R (Reynolds) v Secretary of State for Work and Pensions [2003] EWCA Civ 797 [72] – [73], [82] – [83] (‘Carson’); R (Hooper & Ors) v Secretary of State for Work and Pensions [2003] EWCA Civ 813 [63] (‘Hooper No 2’).
55  Adams v Lord Advocate (Unreported, Outer House, Court of Session, P557/02, 31 July 2002) [92] (‘Adams’).
56  Pearson (Unreported, Queen’s Bench Division (Divisional Court), CO/31/01, CO/448/01, 4 April 2001) [20].
57  Secretary of State for the Home Department v Rehman (Consolidated Appeals) [2001] UKHL 47 [62] (Lord Hoffman); A v Secretary of State for the Home Department [2002] EWCA Civ 1502 [40], [44] (Woolf CJ), [81] (Brooke LJ) (‘A’).
58  Kent Roach, Constitutional and Common Law Dialogues Between the Supreme Court and Canadian Legislatures’ [2001] 80 Canadian Bar Review 481, 485 (‘Constitutional and Common Law Dialogues’).
59  Roach, ‘Constitutional and Common Law Dialogues’, above n 58, 494. See also Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, Toronto, 2001), 244.
60  R (Prolife Alliance) v British Broadcasting Corporation [2003] UKHL 23 (‘Prolife Alliance’).
61  Ibid [138] (emphasis added) (citation omitted).
62  Ibid [75].
63  Ibid.
64  Ibid [76].
65  Lord Anthony Lester, ‘Developing Constitutional Principles of Public Law’ [2001] Winter Public Law 684, 684, 688 (citation omitted).
66  R v Secretary of State for the Home Department; Ex parte Simms and Anor [2000] 2 AC 115, 131.
67  Whether it is by approving illegitimate legislative objectives or irrational, unreasonable or disproportionate legislative means. Commentators in Britain claim that ‘judges have gone further than is necessary in dismissing human rights claims by asserting the importance of the intentions of Parliament’: John Wadham, ‘The Human Rights Act: One Year On’ [2001] European Human Rights Law Review 620, 631.
68  Roth [2002] EWCA Civ 158 [81].
69  Richard A Edwards, ‘Judicial Deference under the Human Rights Act’ [2002] 65 Modern Law Review 859, 867-8 (citation omitted).
70  The judiciary has also exercised extreme forms of interpretation, not linked to deference, to avoid legislative incompatibility. A prime example is the case of Hooper, where the Court of Appeal, in effect, required extra-statutory payments to be made in order to avoid incompatibility in preference to issuing a declaration of incompatibility: Hooper No 2 [2003] EWCA Civ 813. R v A [2001] UKHL 25 is another case which highlights the extremes to which the judiciary will go to avoid incompatibility: see Nicol, above n 49, 442.
71  Wadham, above n 67, 631:‘Furthermore despite the Act’s careful … preservation of the supremacy of primary legislation judges have gone further than necessary in dismissing human rights claims by asserting the importance of the intentions of Parliament.’
72  This is evident in United Kingdom, Rights Brought Home: The Human Rights Bill (1997) Cm 3782, [2.13]. It was also confirmed in debate: United Kingdom, Parliamentary Debates, House of Lords, 19 January 1998, col 1294 (Lord Irvine, Lord Chancellor).
73  Francesca Klug, ‘Judicial Deference Under the Human Rights Act 1998’ [2003] European Human Rights Law Review 125, 131 (emphasis added).
74  Ghaidan [2004] UKHL 30, [39]. By 2005, 17 declarations of incompatibility had been issued, with seven being reversed on appeal: Francesca Klug and Keir Starmer, ‘Standing Back From the Human Rights Act: How Effective Is It Five Years On’ [2005] Winter Public Law 716, 721.
75  Ghaidan [2004] UKHL 30, [39].
76  Ibid.
77  For parliamentary sovereignty, see Victoria Government, above n 3, [8], [9], and [11]. For dialogue, see [12] – [13].