Effective entrenchment of Human Rights in Victoria: a study of the law relating to manner and form requirements
thesisposted on 20.02.2019 by Roszkowski, Tomasz
In order to distinguish essays and pre-prints from academic theses, we have a separate category. These are often much longer text based documents than a paper.
Formulating 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.