Balancing rights in a democracy: The problems with limitations and overrides of rights under the Victorian charter of human rights and responsibilities act 2006

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    Abstract

    Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter'), the Victorian Parliament protects a range of civil and political rights. The rights are subject to restricting provisions, including a general limitation clause which allows all rights to be subject to such reasonable limits as can be demonstrably justified in a free and democratic society, and an override provision which allows the suspension of the operation of specified Victorian Charter rights in relation to overriding legislation for a renewable period of five years. This article will explore the theoretical underpinnings of the rights-restricting mechanisms before critiquing the mechanisms adopted under the Victorian Charter against comparable international, regional and domestic human rights instruments, and against the underlying objectives of the Victorian Charter - the preservation of parliamentary sovereignty and the creation of an institutional dialogue about rights. This analysis will demonstrate that the rights-restricting mechanisms under the Victorian Charter are flawed devices because they go beyond the restrictions ordinarily accepted under international, regional and domestic human rights law; reach beyond what is needed to establish an institutional dialogue; and tend to unnecessarily promote parliamentary sovereignty at the expense of human rights accountability, justification and scrutiny.

    Original languageEnglish
    Pages (from-to)422-469
    Number of pages48
    JournalMelbourne University Law Review
    Volume32
    Issue number2
    Publication statusPublished - 2008

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