Victorian Consolidated Legislation

Charter of Human Rights and Responsibilities Act 2006 - SECT 36

Declaration of inconsistent interpretation

36. Declaration of inconsistent interpretation



(1) This section applies if-

   (a)  in a Supreme Court proceeding a question of law arises that relates to
        the application of this Charter or a question arises with respect to
        the interpretation of a statutory provision in accordance with this
        Charter; or

   (b)  the Supreme Court has had a question referred to it under section 33;
        or

   (c)  an appeal before the Court of Appeal relates to a question of a kind
        referred to in paragraph (a).





(2) Subject to any relevant override declaration, if in a proceeding the
Supreme Court is of the opinion that a statutory provision cannot be
interpreted consistently with a human right, the Court may make a declaration
to that effect in accordance with this section.

(3) If the Supreme Court is considering making a declaration of inconsistent
interpretation, it must ensure that notice in the prescribed form of that fact
is given to the Attorney-General and the Commission.

(4) The Supreme Court must not make a declaration of inconsistent
interpretation unless the Court is satisfied that-

   (a)  notice in the prescribed form has been given to the Attorney-General
        and the Commission under subsection (3); and

   (b)  a reasonable opportunity has been given to the Attorney-General and
        the Commission to intervene in the proceeding or to make submissions
        in respect of the proposed declaration of inconsistent interpretation.

(5) A declaration of inconsistent interpretation does not-

   (a)  affect in any way the validity, operation or enforcement of the
        statutory provision in respect of which the declaration was made; or

   (b)  create in any person any legal right or give rise to any civil cause
        of action.

(6) The Supreme Court must cause a copy of a declaration of inconsistent
interpretation to be given to the Attorney-General-



   (a)  if the period provided for the lodging of an appeal in respect of the
        proceeding in which the declaration was made has ended without such an
        appeal having been lodged, within 7 days after the end of that period;
        or

   (b)  if on appeal the declaration is upheld, within 7 days after any appeal
        has been finalised.

Example If the Trial Division of the Supreme Court makes a declaration of
inconsistent interpretation (based on a referral of a question from VCAT) and
on appeal the Court of Appeal upholds the declaration, a copy of the
declaration must be sent to the Attorney-General within 7 days after the Court
of Appeal's decision.

(7) The Attorney-General must, as soon as reasonably practicable, give a copy
of a declaration of inconsistent interpretation received under subsection (6)
to the Minister administering the statutory provision in respect of which the
declaration was made, unless the relevant Minister is the Attorney-General.