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

Abstract

After a brief overview of the Victorian Charter of Human Rights and Responsibilities Act 2006, 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.