Interpreting Legislation Under the Charter of Human Rights
July 2008 - Seminar
Key Provisions
Victoria
32 Interpretation
(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.
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(3) This section does not affect the validity of —
(a) an Act1 or provision of an Act that is incompatible with a human right; or
(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.
3 Definitions
In this Charter—
statutory provision means an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter)
or of a subordinate instrument.
7 Human rights—what they are and when they may be limited
(1) This Part2 sets out the human rights that Parliament specifically seeks to protect and promote.
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(c) the nature of the right;
(d) the importance of the purpose of the limitation;
(e) the nature and extent of the limitation;
(f) the relationship between the limitation and its purpose; and
(g) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
ACT
30 Interpretation of laws and human rights3
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Territory law means an Act or statutory instrument.
New Zealand
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning
shall be preferred to any other meaning.
United Kingdom
3 Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation wheneverenacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
Preferred approach to interpretation
Adapted from R v Hansen [2007] 3 NZLR 1, 37[92] (Tipping J).
Step 1: Apply ordinary statutory interpretation principles to ascertain Parliament’s intended meaning.
Step 2: Does the ordinary meaning appear prima facie to limit or restrict a relevant right or freedom? If the ordinary meaning does not limit rights, the ordinary meaning prevails.
Step 3: If the law appears inconsistent, is the limit justified using the test in s 7(2)? If justified, the ordinary meaning prevails.
Step 4: If the limit appears unjustifiable, is it possible to interpret the legislation in a way that is consistent with human rights, but still consistent with Parliament’s purpose? If yes, that meaning is to be preferred.
Step 5: If it is not possible to interpret the legislation consistently with human rights, adopt the standard meaning [s 32(3)] and consider a declaration of inconsistent interpretation [s 36].4
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For further information
The Victorian Government Solicitor's Office has extensive experience in preparing effective MOUs. For further advice on any of the issues in this Newsletter contact:
Joanna Davidson on 8684 0899
Special Counsel, Human Rights
Sky Mykyta on 8684 0444
Senior Solicitor
The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions.
This topic was the subject of the monthly VGSO lunchtime seminar held on 31 July 2008.
These notes are published with the permission of the presenters, Sky Mykyta and Dr. Karin Emerton. The notes are not to be regarded as legal advice.
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1 Note “Act” is defined in s 38 of the Interpretation of Legislation Act 1984 (Vic) to mean an Act passed by the Parliament of Victoria.
2 Part 2 of the Charter.
3 As amended by the Human Rights Amendment Act 2007 (ACT).
4 Only the Supreme Court may make a declaration of inconsistent interpretation: s 36(2) Charter.
