L66 monash89044_Redacted.pdf (8.55 MB)
Effective entrenchment of Human Rights in Victoria: a study of the law relating to manner and form requirements
thesis
posted on 2019-02-20, 21:36 authored by Roszkowski, TomaszFormulating the question
This thesis examines constitutional entrenchment of the Victorian
Charter of Human Rights and Responsibilities Act 2006 (Vic) through
the use of manner and form requirements. Manner and form
requirements usually demand compliance with special procedures for
the effective repeal or amendment of a protected law. Imposing such
restrictions on Parliament's power to legislate inevitably gives rise to
a persisting dilemma: whether human rights can be effectively
protected while upholding parliamentary sovereignty? This thesis
considers this dilemma and associated issues, and recommends
methods by which the Charter of Human Rights and Responsibilities
can be effectively entrenched.
Law relating to manner and form
In examining the law relating to manner and form requirements, this
thesis presents new perspectives concerning the level of majority
that may potentially constitute a valid manner and form
requirement, and suggests that the validity of a two-thirds majority
requirement should not be easily dismissed.
This thesis also addresses the dangers of promiscuous entrenchment
and proposes amendments to the Constitution Act 1975 (Vic) to
mandate symmetric entrenchment. Mandating symmetric
entrenchment would require Parliament, in enacting the entrenching
law, to follow the same requirements it is proposing to introduce.
Entrenchment provisions in the Victorian Constitution
Discussion of the law relating to manner and form is contextualised
by examining the entrenchments currently found in the Constitution
Act 1975 (Vic). Doubt is expressed in relation to the effectiveness of
entrenchments of laws that do not respect the 'constitution, power
or procedure' of Parliament, as these do not fall within the purview
of section 6 of the Australia Acts. For these to be valid and binding, authority outside of section 6 of Australia Acts should be sought, and
this thesis contends that it is unlikely to be obtained.
Entrenching the Victorian Charter
The thesis recommends that the Victorian Charter be entrenched, in
its entirety, with the use of an absolute majority requirement and an
express declaration clause. Furthermore, it recommends that the
Charter of Human Rights and Responsibilities form a separate part of
the Constitution Act 1975 (Vic). The thesis illustrates that it is possible
to effectively entrench the Victorian Charter whilst retaining the key
elements of the model, including institutional dialogue, the inability
of the Courts to invalidate legislation deemed to be inconsistent with
the Charter, and the ability of Parliament to override the operation of
the Charter.
History
Campus location
AustraliaPrincipal supervisor
Jeff GoldsworthyYear of Award
2010Department, School or Centre
LawCourse
Doctor of PhilosophyDegree Type
DOCTORATEFaculty
Faculty of LawUsage metrics
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