Revisiting Section 32(1) of the Victorian Charter: strained constructions and legislative intention

Abstract

This article revisits s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In particular, the article examines the potential ability of the courts to deploy s 32(1) to reach ‘strained’ constructions and ‘depart’ from legislative intention. This article disputes the following three propositions from the post-Momcilovic v The Queen jurisprudence in the Victorian Court of Appeal. Firstly, s 32(1) does not allow for a departure from the ‘ordinary meaning’ of a statutory provision (an ordinary meaning usually denotes a literal and grammatical, ie not strained, meaning). Secondly, s 32(1) does not allow for a departure from, or overriding of, legislative intention upon enactment. Thirdly, the qualifications placed on s 32(1) are such that it will not usually permit the ‘reading in’ or ‘reading down’ of words as techniques used to reach strained constructions. The article also argues that issues as to s 32(1)’s strength and methodology appear to have been conflated in the recent jurisprudence. It concludes that as the jurisprudence currently stands, s 32(1)’s ability to reach strained constructions is weaker than the principle of legality. This is inconsistent with s 32(1) being at least equal to the principle of legality.