How does the Charter affect discretions? The limits of s 38(1) and beyond

his article examines how the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), a statutory bill of rights, affects discretions conferred on decision-makers. Section 38(1) of the Charter, which imposes substantive and procedural obligations on public authorities, is the immediately obvious avenue for challenging the exercise of discretions on Charter grounds. But as this article outlines, there are limitations to the operation of s 38(1). Nevertheless, the Charter may have more than one trick up its sleeve. This article analyses the possibilities as to whether the interpretive obligation under s 32(1) of the Charter, and the application provision in s 6(2)(b), might independently limit the scope of discretions or their exercise. As this article demonstrates, how the Charter does or potentially can affect discretions gives rise to complex and interrelated issues.