How the Charter can be used in courts and tribunals

The Charter is relevant to the work of Victorian courts and tribunals in two main ways. Firstly, the Charter will affect the interpretation of Victorian statute law and, secondly, it may give rise to relief or remedy in limited situations discussed below.

Division 3 of Part 3 of the Charter discusses how the Charter will affect the interpretation of laws in Victoria. Section 32 of the Charter provides that:

  • So 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.
  • International law and the judgements of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
  • This section does not affect the validity of–
    • an Act or provision of an Act that is incompatible with a human right; or
    • a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

In addition, section 39 of the Charter provides that the Charter may provide additional grounds of relief or remedy in legal proceedings:

  • 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.
  • 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–
    • 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
    • to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.
  • A person is not entitled to be awarded any damages because of a breach of this Charter.
  • Nothing in this section affects any right a person may have to damages apart from the operation of this section.
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