Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy

Abstract

In Ghaidan v Mendoza,1 the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights.2 The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant 'as his or her wife or husband', should not be read to exclude same-sex couples. Buxton LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case.3 Section 2(2) was interpreted as applying to a person living with a tenant 'as if they were his or her wife or husband',4 despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex. The position would be different, however, if the Commonwealth Parliament enacted a provision similar to the one under consideration in Ghaidan v Mendoza, despite the enactment of internationally recognised rights in the Sex Discrimination Act 1984 (Cth).5 The traditional doctrine of parliamentary supremacy would require Australian courts to give effect to the later Act, even if it abrogated rights contained in the Sex Discrimination Act. These different approaches to legislation that affects the