LAWS50032 · Administrative Law
The Charter — s 32 Rights-Compatible Interpretation
The legal question is narrow but recurring: how must a Victorian court read a statute that touches a Charter right? Under s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), 'so far as it is possible to do so consistently with their purpose', a provision must be read compatibly with human rights. The crucial point is what s 32 is not: it is not a free-standing remedial power. It operates inside orthodox interpretation and is bounded by statutory purpose — it is interpretation, not legislation, and it is not the UK Human Rights Act 1998 s 3 (it does not license a court to strain or remake text against Parliament's purpose). On any Victorian provision in the released legislation, run the 3-step Momcilovic (VSCA) method: interpret with s 32(1), ask whether the reading limits a Charter right, and if so test whether the limit is justified under s 7(2). Flag the unsettled s 32(1)–s 7(2) relationship (no HCA majority in Momcilovic). This chapter feeds the 25% take-home and is a favourite Part-B essay.
What this chapter covers
- 01The interpretive obligation under s 32(1) — and its ceiling (statutory purpose)
- 02Why s 32 is not a free-standing remedial power
- 03The 3-step Momcilovic (VSCA) method
- 04s 32 vs the UK Human Rights Act 1998 s 3
- 05The unsettled s 32(1) – s 7(2) relationship (no HCA majority)
- 06s 36 declaration of inconsistent interpretation; Taha
Worked example: running the 3-step method
- +1Step 1 — interpret with s 32(1): read the provision, so far as possible consistently with its purpose, to be compatible with the Charter right. Here a compatible reading is available and does not strain the purpose, so adopt it.
- +1Step 2 — does the reading limit a right? On the rights-compatible reading there is no relevant limit, so the inquiry can stop; only if a limit remained would you proceed.
- +1Step 3 — (if needed) s 7(2) justification: had a limit remained, ask whether it is reasonable and demonstrably justified under s 7(2). Note the unsettled s 32 – s 7(2) relationship as a flag.
Key terms
- s 32(1) Charter
- The interpretive obligation: 'so far as it is possible to do so consistently with their purpose', statutory provisions must be interpreted compatibly with human rights. It is an interpretive rule bounded by purpose, not a power to remake legislation.
- 3-step Momcilovic method
- The VSCA framework for a Victorian provision: (1) interpret using s 32(1); (2) ask whether the reading limits a Charter right; (3) if so, test whether the limit is justified under s 7(2). It remains the operative method in Victoria.
- s 7(2) justification
- The general limitations clause: a right may be limited where the limit is reasonable and demonstrably justified in a free and democratic society, weighing the nature of the right, the purpose and proportionality of the limit. Its relationship to s 32(1) is unsettled.
- Free-standing remedial power
- What s 32 is not. The section works inside ordinary interpretation and cannot override the statute's purpose; contrast the UK Human Rights Act 1998 s 3, which is read more strongly. French CJ analogised s 32(1) to the principle of legality with a wider field.
- s 36 declaration of inconsistent interpretation
- Where no compatible reading is possible, the Supreme Court may declare the provision inconsistent with a Charter right. It changes nothing in the case (s 32(3): validity is unaffected); it merely signals Parliament.
The Charter — s 32 Rights-Compatible Interpretation FAQ
Is s 32 a power to rewrite a statute?
No — this is the central trap. s 32(1) is an interpretive obligation bounded by statutory purpose; it directs the court to prefer a rights-compatible reading where one is genuinely available, but it does not license straining or remaking the text against Parliament's purpose. It is interpretation, not legislation.
How is s 32 different from the UK Human Rights Act s 3?
The UK s 3 is read more strongly — it can require quite robust re-readings. Victorian s 32 is tied to statutory purpose and the limits of judicial legitimacy, so it cannot go as far. This comparison ('s 32 vs the UK HRA s 3') is a favourite Part-B essay; cite Momcilovic and French CJ's principle-of-legality analogy.
What is unsettled about s 32 and s 7(2)?
Their relationship: the HCA in Momcilovic upheld the Charter's validity but reached no majority on how s 32(1), s 7(2) and s 36 interlock. The VSCA's 3-step method survives because the HCA majority did not overrule it, but you should flag the uncertainty when you apply it.
Exam move
For any Victorian provision in the released legislation, run the 3-step method mechanically: interpret under s 32(1), test for a limit, justify under s 7(2). Anchor it in Momcilovic (VSCA for the method; HCA for validity and French CJ's legality analogy) and Taha. The single most valuable habit is to hold the interpretation/legislation line: s 32 is bounded by purpose and is not the UK s 3. Be ready to flag the unsettled s 32 – s 7(2) relationship, and know that an s 36 declaration changes nothing in the case (s 32(3)). This chapter doubles as Part-B essay ammunition, so keep the critique angle in view.
