Administrative law › Module guides › The Charter

The idea

The Charter is Victoria's statutory human rights overlay, and every Charter point routes through one gate: is the actor a public authority within s 4. If it is not, the s 38 conduct mandate does not bite and only the s 32 interpretive argument survives. Once through the door you pick the limb the facts call for.

There are three. A conduct challenge runs on s 38, which carries a two limb mandate and, once a right is limited, shifts the onus to the public authority to justify the limit as proportionate under s 7(2) (Thompson v Minogue; Certain Children). An interpretation argument runs on s 32, which forms part of the ordinary interpretive process rather than a rule of last resort reached only on ambiguity (Taha), though it widens the principle of legality without becoming a remedial override (Momcilovic). A court declaration of inconsistent interpretation runs on s 36. Whether a s 38 breach is itself a jurisdictional error is contested, and the module states the contest rather than resolving it (Bare).

Some rules carry a small icon marking the structure the rule takes. The icon is a reading aid and nothing more. The facts of the cases and the words of the rules do the work.

Attack plan

1. Ask the door question first. Is the actor a public authority within s 4. If no, s 38 does not bite and only the s 32 interpretive argument survives.
2. Choose the challenge. A conduct challenge runs on s 38, an interpretation argument runs on s 32, and a court declaration runs on s 36.
3. On the conduct challenge split the two limbs. The substantive limb asks whether the authority acted compatibly, the procedural limb asks whether it gave proper consideration.
4. Once a right is limited, shift to justification. The onus moves to the authority under s 7(2), and less restrictive means is where it usually fails.
5. Fix the vehicle. s 39 gives no freestanding action, so the Charter point piggybacks an existing review avenue. This is a Victoria only, essay weighted topic, so the router is the essay's spine rather than a hypothetical script.

Cases at a glance

Case	In a line
Bare v IBAC	Whether a breach of the s 38 conduct mandate is itself a jurisdictional error is contested. Warren CJ answered no, and the module states the contest rather than resolving it
Victoria Police Toll Enforcement v Taha	The s 32(1) interpretive obligation forms part of the interpretive process itself, not a rule of last resort reached only on ambiguity (Tate JA)
Thompson v Minogue	Once a right is limited the onus shifts to the public authority to justify under s 7(2). Sets the four step content of proper consideration under s 38(1)
Certain Children (No 2)	The Grevillea Orders limited children's rights without justification. The two limb s 38(1) mandate applied and less restrictive means defeated the proportionality defence
Momcilovic	The s 32 interpretive principle widens the field of the principle of legality but is not a remedial override of ordinary construction (via PT)

The rules

R139 · When is an actor bound by the s 38 conduct mandate? arrow A public authority is bound by s 38 only where it falls within the s 4 definition, which captures core and functional public authorities and excludes courts except when they are acting in an administrative capacity. Charter s 4.

R140 · What does the s 38(1) conduct mandate require? checklist The conduct mandate has two limbs and is stated in s 38(1), which provides "Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right". Certain Children (No 2).

R141 · What is the content of proper consideration under s 38(1)? checklist Proper consideration under s 38(1) requires the decision maker to (1) understand in general terms which rights of the affected person may be relevant and whether and how they will be interfered with, (2) seriously turn the mind to the possible impact on the person's human rights and its implications, (3) identify countervailing interests or obligations, and (4) balance competing private and public interests as part of the exercise of justification. Thompson v Minogue at [83].

R142 · When does the conduct mandate not apply? arrow The mandate does not apply where under a statutory provision or a law of the Commonwealth the authority could not reasonably have acted differently or made a different decision. Charter s 38(2).

R143 · Who bears the onus once a right is limited? scales "Once it has been established that a human right has been limited, the onus is on the public authority to establish that the limitation is lawful, reasonable and can be demonstrably justified within the terms of s 7(2)". Thompson v Minogue at [74].

R144 · On what terms and factors may a right be limited under s 7(2)? scales Under s 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, (b) the importance of the purpose of the limitation, (c) the nature and extent of the limitation, (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". Charter s 7(2).

R145 · How must statutory provisions be interpreted under s 32(1)? compass Interpretation under s 32(1) provides "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", an obligation that forms part of the interpretive process itself rather than a rule of last resort. Taha.

R146 · Does the Charter create a freestanding cause of action? arrow Section 39(1) gives no freestanding cause of action, so a person may seek a Charter unlawfulness remedy only where they may otherwise seek relief in respect of the same act or decision. Charter s 39(1).

R147 · What is the limit on the reach of the s 32 interpretive obligation? arrow The s 32 interpretive obligation widens the field of application of the principle of legality but does not change the standard or methodology of interpretation, so it is not a strong remedial override that licenses a reading strained past the provision's purpose. Momcilovic.

R148 · What happens where compatible interpretation is impossible? arrow Where compatible interpretation is impossible the Supreme Court may make a declaration of inconsistent interpretation under s 36, which by s 36(5) does not affect the validity, operation or enforcement of the provision and creates no legal right or cause of action. Charter s 36; Charter s 36(5).

R149 · Is a breach of the s 38 mandate a jurisdictional error? arrow Whether a breach of the s 38 conduct mandate is itself a jurisdictional error is contested; in Bare Warren CJ answered no, framing the question in the Project Blue Sky language of whether invalidity was a purpose of the provision, and the position remains unresolved. Bare v IBAC.

R150 · What remedies are available for Charter unlawfulness? arrow Declarations and injunctions are available for Charter unlawfulness even where the error is not jurisdictional, though damages are excluded.

Common traps

The excluded ground. The Charter typically runs as an essay rather than a hypothetical. Running a Charter ground in a hypothetical that fences it out earns nothing and signals the paper was misread. Keep the Charter in the essay bank unless the question opens the door.

The missing gateway. Section 39 gives no freestanding remedy. An answer that asserts a standalone Charter claim without attaching it to an existing review avenue has skipped the gateway. Name the vehicle the applicant may otherwise bring and plead the Charter point inside it.

Overreading s 32. Section 32 is not a strong remedial power. Momcilovic confines it to widening the field of the principle of legality without changing the method of construction, so a reading strained past the provision's purpose is wrong. Where compatibility is impossible the route is a s 36 declaration, which changes nothing about validity.

The adjacent essay. The 2022 question asked about the Charter's impact on judicial review, not for a tour of the listed rights. Squishing a rights survey into that question is the T22 adjacent essay miss. Define the key terms first and answer the impact question that was set.

Practise this module

The practice bank runs this module inside invented scenarios with a Pass answer, an H1 answer and examiner's comments for every drill. Read the rules above, then attempt the bank blind and mark yourself against the model.

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