Balancing Rights in Democracy: The Problems with Limitations and Overrides of Rights under the Victorian Charter of Human Rights and Responsibilities Act 2006

Abstract

Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’), the Victorian Parliament protects a range of civil and political rights. The rights are subject to restricting provisions, including a general limitation clause which allows all rights to be subject to such reasonable limits as can be demonstrably justified in a free and democratic society, and an override provision which allows the suspension of the operation of specified Victorian Charter rights in relation to overriding legislation for a renewable period of five years. This article will explore the theoretical underpinnings of the rights-restricting mechanisms before critiquing the mechanisms adopted under the Victorian Charter against comparable international, regional and domestic human rights instruments, and against the underlying objectives of the Victorian Charter - the preservation of parliamentary sovereignty and the creation of an institutional dialogue about rights. This analysis will demonstrate that the rights-restricting mechanisms under the Victorian Charter are flawed devices because they go beyond the restrictions ordinarily accepted under international, regional and domestic human rights law; reach beyond what is needed to establish an institutional dialogue; and tend to unnecessarily promote parliamentary sovereignty at the expense of human rights accountability, justification and scrutiny.

Keywords: Victorian Charter, Human Rights Act, Human Rights Legislation

JEL Classification: K00, K19, K3, K30, K39, K4, K40, K42, K49