Interpretation,
reasonable limits and
remedies
Associate Professor Simon Evans
Law Institute of Victoria:
Victorian Charter of Human Rights and
Responsibilities
18 May 2007
Outline
1.
Interpretation

2.
Reasonable limits

3.
Section 32
Section 7
Remedies

Section 36, 39
Interpretation
The interpretive provision

‘[s]o 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’ (s 32(1))
Interpretation: the problems

[A] member of the police force, without warrant, may
search a person … for a volatile substance … if the
member has reasonable grounds for suspecting that
the person—



(a) is under 18 years of age; and
(b) has in his or her possession or under his or her control
a volatile substance or an item used to inhale a volatile
substance; and
(c) is inhaling or will inhale a volatile substance.
Interpretation: the problems

The parents of a child are jointly responsible
for having the child’s birth registered under
this Act and must both sign the birth
registration statement but the Registrar may
accept a birth registration statement from one
of the parents if satisfied that it is not
practicable to obtain the signatures of both
parents on the birth registration statement.
Interpretation: the problems

a court shall refuse bail … in the case of a
person charged with … [certain offences] …
unless the court is satisfied that exceptional
circumstances exist which justify the grant
of bail
Interpretation: the problems

In determining whether a surveillance device
warrant should be issued, the judge or
magistrate must have regard to:


(a) the nature and gravity of the alleged offence in
respect of which the warrant is sought; and
(b) the extent to which the privacy of any
person is likely to be affected …
The interpretive obligation


All interpreters are subject to the interpretive
obligation
All local legislation is subject to the
interpretive obligation



The Charter itself
Old Victorian legislation
Ambiguity is not needed
Potential impact


No impact –
 Because legislation is consistent with human rights
 Because legislation is inconsistent with human rights but is
incapable of a consistent interpretation
Just about any impact –
 Legislation applies to new situations
 Decision-makers may / must have regard to a wider / narrower
set of considerations
 Government powers may be restricted and conduct may be
unauthorised
 Onus shifts; new requirement of mens rea …
Approaches to applying the
interpretive provisions
Approaches

Unlikely to be a single approach that suits all
cases
First approach to s 32
1.
2.
3.
4.
5.
Determine the natural meaning of the legislative provision
according to the standard interpretive (textual, contextual)
principles.
Does the provision (in its natural meaning) limit any protected
rights?
If the provision does not limit any protected right, adopt the
natural meaning (the meaning determined by standard
interpretive principles).
If the provision does limit protected rights, are the limits on the
rights demonstrably justified?
If the limits are demonstrably justified, adopt the natural meaning
(the meaning determined by standard interpretive principles).
If the limits are not demonstrably justified, is the provision
capable of being interpreted consistently with the protected
rights?
If the provision is not capable of being interpreted consistently
with the protected rights (eg because there is a clear legislative
purpose to limit protected rights), adopt the natural meaning
and consider making a declaration of inconsistent interpretation
/ declaration of incompatibility.
If the provision is capable of being interpreted consistently with
the protected rights, adopt the interpretation that best
accommodates statutory text and purpose and the protected
rights.
6.
7.
8.

(Adapted from majority judgments in Hansen v The Queen [2007] NZSC 7 (20
February 2007))
First approach: rationale




Section 32 directs interpreters to prefer a meaning consistent
with the rights and freedoms contained in Part 2 of the Charter.
But the scope of those individual rights and freedoms is
constrained by other sections, in particular by the provision for
justified limits in section 7 (which is in Part 2).
Most statutes cannot be read completely consistently with the full
breadth of each and every right and freedom in the Charter.
Accordingly, it is only those meanings that unjustifiably limit
guaranteed rights or freedoms that section 32 requires
interpreters to discard, if the statutory language so permits.

(Adapted from Hansen v The Queen [2007] NZSC 7 (20 February
2007) [59])
Second approach to s 32: terms with a
range of meanings on a continuum
1.
2.
3.
4.
5.
6.
Determine the scope of the relevant right or freedom.
Identify the different interpretations of the words of the other Act which
are properly open.
If only one meaning is properly open that meaning must be adopted.
If more than one meaning is available, identify the meaning which
constitutes the least possible limitation on the right or freedom in
question.
Consider whether the meaning adopted limits the relevant right or
freedom.
Consider whether the extent of any such limitation can be demonstrably
justified.
Limits of the interpretive
requirement

Maintaining consistency with legislative purpose




An interpretive obligation, not permission to legislate



Levels of abstraction
Extrinsic materials relevant to identifying purpose
“a multitude of obscure, uncertain and even apparently conflicting
purposes” (Avel Pty Ltd)
Fits into a much larger debate about the limits of statutory
interpretation in Australia (contrast eg judgments of McHugh [esp
JA] and Spigelman CJ)
Interpretation may produce a meaning not ‘intended’ by the
enacting Parliament
Legislation with a settled interpretation
UK approach

Ghaidan v Godin-Mendoza [2004] 2 AC 557
summarised in Beaulane Properties Ltd v
Palmer [2005] 3 WLR 554, 611–612:

The section 3 duty is not dependent upon ambiguity in the
legislation being interpreted: Lord Nicholls at [29], Lord Steyn at
[44], Lord Millett at [67]. 

The section 3 interpretation must be compatible with the
‘underlying thrust’ of the legislation being construed: Lord
Nicholls at [33]. It is not concerned with obligations which,
properly interpreted, impose an ‘unavoidable obligation to act in a
particular way’: Lord Rodger at [108]. 

Any implication of words must ‘go with the grain of the
legislation’; the insertion of words which contradict the essential
principles and scope of the legislation being interpreted is
impermissible: Lord Rodger at [121]–[122]. 

The court should not embark on considering matters calling for
legislative deliberation: Lord Nicholls at [33]. It could not create a
‘wholly different scheme’: Lord Rodger at [148]. 

The mere fact that the language under
consideration is inconsistent with a
convention-compliant meaning does not
make a Convention-compliant meaning under
section 3 impossible: Lord Nicholls at [32].
Probably 

The section 3 duty is the ‘principal remedial
measure’ and a making of a declaration of
incompatibility is a ‘measure of last resort’: Lord
Steyn, at [39]. Unclear

There is a ‘strong rebuttable presumption’ in favour
of an interpretation consistent with convention
rights: Lord Steyn at [50]. Probably 

The application of section 3 should not depend critically upon ‘the
particular words adopted by the parliamentary draftsman in the
statutory provision under consideration’: Lord Nicholls at [31].
There should not be ‘an excessive concentration on linguistic
features of the particular statute’: Lord Steyn at [41]. Debatable

The statute must be given a meaning ‘which, however unnatural
or unreasonable, is intellectually defensible … it can do
considerable violence to the language and stretch it almost (but
not quite) to breaking point’: Lord Millett at [67]. Probably 

'Judicial vandalism' is to be gauged by
reference to the change in the substance of
the obligation imposed by the provision, not
by reference to any ‘mere matter of linguistic
form’: Lord Rodger at [110]–[111]. Probably 
Issues





Application of old legislation to pre-commencement
events
Federal legislation and other non-local legislation
Legislation governing private relationships and
corporations
Rights may have to be engaged on the facts
Delegated legislation
Reasonable limits
The limitation provision


Section 7
(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—
 (a) the nature of the right; and
 (b) the importance of the purpose of the limitation; and
 (c) the nature and extent of the limitation; and
 (d) the relationship between the limitation and its purpose; and
 (e) any less restrictive means reasonably available to achieve the
purpose that the limitation seeks to achieve.
Relevance of limitation

Interpretation:



Section 32 requires interpreters to prefer an interpretation
that imposes only justified limits on rights
Section 36 allows a declaration of inconsistent
interpretation when a law can only be interpreted to impose
an unjustified limit on rights
Conduct

Section 38 requires public authorities to act in a way that is
compatible with justified limits on human rights
Comparative material

Section 7 is based on


section 1 of the Canadian Charter
section 36 of the South African Bill of Rights
Comparative material

“The Oakes test may be formulated as two main tests with subtests
under the second branch, but it may be easier to think of it in terms of
four independent tests. If the legislation fails under any one test, it
cannot be justified. The four tests ask the following questions:




Is the objective of the legislation pressing and substantial?
Is there a rational connection between the government’s legislation and its
objective?
Does the government’s legislation minimally impair the Charter right or
freedom at stake?
Is the deleterious effect of the Charter breach outweighed by the salutary
effect of the legislation?” (Canada (Attorney General) v Hislop [2007] SCC
10 (1 March 2007))
Comparative material

Different from the Canadian Oakes test


Relevant factors, not cumulative elements
But Oakes helps understand the logic of section 7
Limitations ‘under law’



Statute and common law
Unenumerated powers of executive
government or positive authorisation?
Vagueness, imprecision, arbitrariness
Limitations that are demonstrably
justified

“The power to balance and override [protected] rights, then, is essentially
one that belongs to the political institutions. The role of the courts is to
subject the balancing done by the political institutions to the appropriate
type of judicial review when it results in the overriding of a [protected] right.
… Moreover, although courts review the exercise of the [power to limit
rights], … judicial review of governmental balancing does not necessarily
require the courts themselves to engage in balancing.”


Stephen A Gardbaum, “Limiting Constitutional Rights” (2007) 54 UCLA Law
Review, http://ssrn.com/abstract=971024 at 27
The limits of evidence: policymaking under conditions of uncertainty
Relevant factors

‘A free and democratic society’

The nature of the right
The importance and purpose of the limitation
The nature and extent of the limitation
The relationship between the limitation and its purpose
Any less restrictive means reasonably available to achieve the
purpose that the limitation seeks to achieve




Limits on rights: using international
and comparative materials

OK if done carefully:



identify approach
identify relevant factors
More problematic:

identifying less restrictive alternatives


especially beware Canadian cases insisting on the least
restrictive alternative – cf reasonably open alternatives
Deeply problematic:

making the ultimate judgment whether a limitation is reasonably
justified
Remedies
Remedies




Declarations of inconsistent interpretation
Remedies for breach of human rights
simpliciter
Remedies for unauthorised conduct
Remedies for conduct that is unlawful under
section 38

A need for double actionability?
Declarations of inconsistent
interpretation

Section 36(2)
 “If in a proceeding the Supreme Court is of the opinion that a
statutory provision cannot be interpreted consistently with a
human right, the Court may make a declaration to that effect in
accordance with this section.”


No free standing applications for these statutory declarations
Section 36(5):
 A declaration of inconsistent interpretation does not—


(a) affect in any way the validity, operation or enforcement of the
statutory provision in respect of which the declaration was made; or
(b) create in any person any legal right or give rise to any civil cause
of action.
Section 39 remedies



39. Legal proceedings
(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in
respect of an act or decision of a public authority on the ground that the act or decision was
unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising
because of this Charter.
(2) This section does not affect any right that a person has, otherwise than because of this
Charter, to seek any relief or remedy in respect of an act or decision of a public authority,
including a right—




(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of
the Rules of the Supreme Court; and
(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of
proceedings or exclusion of evidence.
(3) A person is not entitled to be awarded any damages because of a breach of this
Charter.
(4) Nothing in this section affects any right a person may have to damages apart from the
operation of this section.
Remedies for breach of human
rights simpliciter

New Zealand: Baigent
USA: Bivens
UK: HRA section 8

Victoria: No remedy



eg breach of privacy
Remedies for unauthorised
conduct


Interpretation (section 32) may reduce the scope of conduct that is
authorised.
Conduct may then be unlawful:




Leading to remedies:





Ultra vires
Breach of a statutory provision (outside the Charter)
Tortious
Judicial review
Appeal
Statutory remedies
Tortious remedies (including damages)
These remedies are not affected by the Charter:

Section 39(2), 39(4); not affected by section 39(3)


39. Legal proceedings
(2) This section does not affect any right that a person has, otherwise
than because of this Charter, to seek any relief or remedy in respect of
an act or decision of a public authority, including a right—



(a) to seek judicial review under the Administrative Law Act 1978 or under
Order 56 of Chapter I of the Rules of the Supreme Court; and
(b) to seek a declaration of unlawfulness and associated relief including an
injunction, a stay of proceedings or exclusion of evidence.
(4) Nothing in this section affects any right a person may have to
damages apart from the operation of this section.
Remedies for conduct that is
unlawful under section 38

Supplying the element of unlawfulness for nonCharter remedies / causes of action




Declaration of unlawfulness
Judicial review remedies
Exclusion of evidence, stays
No damages (including no aggravated, exemplary or
punitive damages)
 But non-damages remedies for torts: injunction, declaration
Issues


Relying on unlawfulness as an element of a
cause of action
A need for double actionability? (No.)
Remedies

Further reference:


Simon Evans and Carolyn Evans, ‘Legal Redress
under the Victorian Charter of Rights And
Responsibilities’ (2006) 17 Public Law Review
264-281
More:

http://cccs.law.unimelb.edu.au; conference
25 September 2007