Potential Constitutional and Statutory Limitations on the Scope of the Interpretative Obligation Imposed by S 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (VIC) (2009)

The purpose of this article is to analyse and identify potential limitations on the scope of the interpretative obligation imposed by s 32(1) of Victoria's Charter of Human Rights and Responsibilities Act 2006 ('the Charter Act'). As part of the analysis, the scope of the s 32(1) interpretative obligation will be compared with that of the corresponding obligation imposed by s 3(1) of the UK's Human Rights Act 1998 ('the UK Act'), on which the Charter Act was largely modelled. Despite an acknowledgement that the Australian Constitution does not require a separation of powers at State level, this article will expound a fundamental proposition concerning Ch III of the Constitution and the power of State courts to interpret State laws. That proposition, on which the analysis will be premised, is that it would be incompatible with Ch III for a State Supreme Court to interpret State laws in a way that involves an exercise of legislative power. It will be argued that if a State Supreme Court gained a power to interpret State laws in that way, the High Court (which cannot exercise legislative power) would lose its constitutionally mandated power to make final and conclusive determinations as to the meaning and validity of State laws. The analysis will identify a number of significant potential limitations on the scope of the s 32(1) interpretative obligation. If the Ch III incompatibility proposition mentioned above is accepted, those potential limitations arise not just from provisions of the Charter Act, but also from implied Ch III requirements. It will be suggested that the High Court could possibly develop a principle of 'operational necessity' for use in drawing the line between permissible interpretation and impermissible lawmaking by courts applying interpretative obligation provisions. Such a principle would reflect the recognition that it is sometimes necessary and thus legitimate for courts to create or choose between alternative meanings when interpreting legislation. The analysis will indicate the type of criteria that could potentially be used for determining whether the relevant necessity exists in any particular situation. Because the proportionality test prescribed by s 7(2) of the Charter Act limits the scope of the s 32(1) interpretative obligation, s 7(2) will be briefly analysed to identify potential limitations arising from that section. It will be contended that the assessments made by courts applying s 7(2) are part of the interpretative process, and that the courts are therefore not permitted to conduct those assessments in a way that involves an exercise of legislative power. Based on that contention, it will be argued that the High Court could take the view that any court applying s 7(2) must go no further than to decide whether a political assessment could reasonably be made that the involved legislatively prescribed limit satisfies the s 7(2) proportionality test. This article will conclude by contending that the interpretative obligation imposed by s 32(1) of the Charter Act is likely to be narrower in scope than the corresponding obligation imposed by s 3(1) of the UK Act.