THE QUIET DEMISE OF DECLARATIONS OF INCONSISTENCY UNDER THE VICTORIAN CHARTER.

• Date: 01 April 2021
• Author: Chen, Bruce

CONTENTS I Introduction II Overview of the Victorian Charter and Declaration Power III Momcilovic Proceedings A Court of Appeal B High Court IV Post-Momcilovic Proceedings V Reasons for the Quiet Demise: Momcilovic A Validity of s 36 B Interconnection with s 32(1) C Validity and Role of s 7(2) D Appropriateness in Criminal Proceedings E A 'Matter' under Ch III VI Other Features of the Victorian Charter A Notice Requirements and Intervention Rights B Override Declaration Power in s 31 VII Exceptionalism to Human Rights A Australia and Victoria B United Kingdom C New Zealand D Australia and Victoria Revisited VIII Eight-Year Victorian Charter Review IX Future Directions? I INTRODUCTION

Section 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter') confers a power on the Victorian superior courts to declare that legislation cannot be interpreted consistently with human rights ('declaration power'). This forms an aspect of the Victorian Charter's 'dialogue model' to protect and promote human rights. Such declarations (sometimes referred to as declarations of incompatibility in other jurisdictions) are one of the mechanisms available to the courts as one branch of government in a dialogue with the Victorian Parliament and executive.

Despite this, in the 12 years since the Victorian Charter fully commenced operation, only one declaration has been made which was then set aside on appeal. That was in the leading case on the Victorian Charter--Momcilovic v The Queen ('Momcilovic'). (1) Save for issues as to the constitutional validity of the declaration power, relatively little has been said about the power post-Momcilovic. (2) It has drawn much less scholarship compared to other provisions of the Victorian Charter it is associated with, such as interpretation of legislation in a manner compatible with human rights under s 32(1), or potentially associated with, such as the justification and proportionality test under s 7(2) of the Victorian Charter. (3) This article attempts to fill that gap. It seeks to identify the likely reasons for the 'quiet demise' of the declaration power in the Victorian Charter jurisprudence.

Part II of the article provides an overview of the Victorian Charter dialogue model, the declaration power conferred by s 36, and the requirements for a ministerial response under s 37. Part III briefly outlines the findings of the Victorian Court of Appeal in R v Momcilovic (4) and the High Court in Momcilovic, focusing on ss 32(1) and 36. As is well known, several judgments were produced by the High Court in Momcilovic which created considerable difficulty in identifying the exact precedent set by the Court. Part IV looks at examples of how the declaration power has been approached (or more accurately, avoided) by the Victorian courts during R v Momcilovic and post-Momcilovic.

Having set the scene, the main analysis in this article is undertaken by the next three Parts. Part V examines the factors at play for the paucity of declarations arising from Momcilovic. These relate to contested findings on the validity of the declaration power in s 36 and the validity and role of s 7(2), the modest role given to interpretation pursuant to s 32(1), and other judicial remarks as to when a declaration can appropriately be made. Part VI identifies other features of the Victorian Charter which potentially inhibit the making of declarations, which were not the focus of Momcilovic. Part VII argues that the widelyheld view that Australia is 'exceptionalist' in its attitude to human rights, both in domestic law and international law, has had an impact on the declaration power. Undertaking a succinct comparative analysis of how declarations are approached under the Human Rights Act 1998 (UK) ('UK HRA') and the New Zealand Bill of Rights Act 1990 (NZ) ('NZ BORA'), this Part confirms that, in the context of the Victorian Charter, the courts are exceptionalist. In sum, Parts V to VII provide clarity on the various legal and political-cultural reasons for the current situation in Victoria.

Part VIII considers the pending recommendations made by the eight-year review of the Victorian Charter in 2015, and whether they would likely change the status quo. Part IX concludes that the courts are not upholding their clearly conferred role under the Victorian Charter. While not essential to the Victorian Charter's operation, the use of the declaration power is advantageous. This is, however, unlikely to change until the declaration power is revisited by the High Court.

This article will also be of interest to those working with the Human Rights Act 2004 (ACT), which preceded the Victorian Charter, and the subsequently enacted Human Rights Act 2019 (Qld), both being statutory bills of rights which include a declaration power, (5) as well as other jurisdictions with a statutory bill of rights (or contemplating enacting one).

II OVERVIEW OF THE VICTORIAN CHARTER AND DECLARATION POWER

The Victorian Charter was enacted in 2006 and fully commenced operation on 1 January 2008. (6) The Victorian Charter protects predominantly civil and political rights based on the International Covenant on Civil and Political Rights ('ICCPR'). (7) Australia is a State Party to the ICCPR and is subject to a complaints process at international law for violations of the ICCPR ('individual communications'). (8)

The Victorian Charter is based on what is commonly known as a 'dialogue' (9) model for human rights. (10) Its rationale is to encourage and promote a dialogue about human rights between the three branches of government--the executive, legislature, and the judiciary. As a statutory version of the 'dialogue' model (like the UK HRA and NZ BORA), the Victorian Charter is not constitutionally entrenched. (11) The Victorian Charter is intended to preserve parliamentary supremacy --primary legislation passed by Parliament which is incompatible with human rights is not invalidated. (12)

As one of the branches of government, the courts were recognised as having an integral role under the Victorian Charter's human rights framework. Section 32(1) requires the adoption of a human rights-compatible interpretation of statutory provisions, '[s]o far as it is possible to do so consistently with their purpose'. (13) Section 32(3)(a) provides that s 32 does not affect the validity of an Act, or a provision thereof, that is incompatible with a human right. Where it is not possible to reach a human rights-compatible interpretation, it must still be applied. Section 32 applies to everyone working with legislation--Victorian public servants, statutory bodies and tribunal members--but it is 'the traditional role for the courts in interpreting legislation passed by Parliament'. (14)

The power to make a declaration of inconsistent interpretation is the focus of this article. It is directly linked to s 32(1). Section 36 provides that the Supreme Court of Victoria and its Court of Appeal (collectively, the 'Victorian Courts') can make a declaration of inconsistent interpretation if they are 'of the opinion that a statutory provision cannot be interpreted consistently with a human right' (ss 36(1)-(2)). (15) A declaration cannot be made without notice being given to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission ('VEOHRC'), and the Victorian Court being satisfied that a reasonable opportunity has been given to them to intervene or make submissions regarding a proposed declaration (ss 36(3)-(4)). Making a declaration does not affect the validity, operation or enforcement of a statutory provision, nor create any legal right or give rise to any civil cause of action (s 36(5)).

Once a declaration is made by the Victorian Court, a copy must be given to the Attorney-General (s 36(6)), and the Attorney-General must, as soon as reasonably practicable, give a copy to the Minister administering the relevant statutory provision, unless that Minister is the Attorney-General themselves (s 36(7)). Section 37 requires the relevant Minister to publicly respond to the declaration, with a written response together with a copy of the declaration laid before each House of Parliament and published in the Government Gazette. (16) Parliament can debate and pass legislative amendments to rectify the incompatibility, but this action is not compelled by the Victorian Charter. According to extrinsic materials, the purpose of s 36, together with s 37, is 'to allow the Parliament to reconsider the provision in light of the declaration', (17) take 'appropriate action' (18) and 'ensure that there is transparency and parliamentary accountability in the way the government responds to such findings by the court'. (19)

In the existing commentary, the declaration power has been described as a 'key provision' (20) and 'central to the dialogue model'. (21) It is 'novel', (22) in that a declaration is non-binding on the rights of parties and unenforceable. At the front end, it 'serves as a political and perhaps moral disincentive to legislate incompatibly'; (23) at the back end, it is a 'signal' (24) which 'place[s] the reform of some laws on the political agenda'. (25) This seeks to 'enhance the quality of legislative rights debate'. (26) For the litigant, the making of a declaration can still provide a symbolically powerful vindication of their human rights--'[r]ights have value, even if inconsistent legislation may override them'. (27)

The above dialogue takes place whilst maintaining parliamentary supremacy. The Victorian Charter does not 'give the courts a final, decisive say, on the validity of enactments. (28) All three branches of government are involved. The courts seek to interpret the statutory provision compatibly with human rights, but where they cannot do so, the courts can make a declaration. (29) The executive (the relevant Minister) publicly responds to the declaration. (30) The legislature can debate and rectify...