ACT Supreme Court Considers Interpretative Provision of Human Rights Act 2004 (ACT)
Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority [2006] ACTSC 122 (15 December 2006)
The ACT Supreme Court has recently considered the application of s 30(1) of the Human Rights Act 2004 (ACT), which provides that, ‘In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.’ The Victorian Charter of Human Rights and Responsibilities 2006 similarly provides, at s 32(1), that ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.’
In Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority, the ACT Supreme Court endorsed the approach adopted by the UK House of Lords in Ghaidan v Godin-Mendoza [2004] AC 557 to the so-called ‘interpretative principle’ enshrined in the equivalent s 3 of the UK Human Rights Act 1998. In that case, the House of Lords held that, subject to not unduly ‘straining’ the meaning and purpose of legislation, the interpretative principle may involve the ‘reading down’ of express provisions and also the implication (or ‘reading in’) of provisions to ensure human rights compatibility. It requires that, as a matter of law, a human rights consistent interpretation be adopted whenever it is possible to do so, regardless of whether there is any ambiguity and regardless of how the provision in question may have been previously interpreted and applied. The ACT Supreme Court quoted approvingly from the decision of Lord Nicholls of Birkenhead in Ghaiden where he stated (at 571):
the interpretive obligation decreed by section 3 is of an unusual and far reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear.
The decision of the House of Lords in Ghaiden was also endorsed by the ACT Court of Appeal in Kingsley’s Chicken Pty Ltd v Queensland Investment Corporation and Ors [2006] ACTCA 9, [52].
If this approach is followed in Victoria, it is likely that s 32(1) of the Charter will be, in effect, the primary ‘remedy’ under the Act, with a Declaration of Inconsistent Interpretation being a ‘remedy’ of last resort.
For the full text of the decision in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority, see http://www.courts.act.gov.au/supreme/judgments/capital1.htm.
Landmark decision ordering Shell to cut CO2 emissions from its global operations by 45% overturned by Hague Court of Appeal
On 12 November 2024, the Court of Appeal of the Hague overturned the landmark 2021 decision of the District Court of The Hague (District Court) in Milieudefensie et al v Royal Dutch Shell, which had ordered Shell to cut CO2 emissions from its global operations by 45% by the end of 2030.
Read more
Young campaigners landmark victory for children’s rights as new coal-fired power generation deemed unconstitutional in South Africa
The High Court of South Africa ruled that the government’s plans to add 1,500 megawatts of new coal-fired power stations were “unlawful and invalid”. In a youth-driven petition brought by three civil society organisations, the Court found that the plans failed to adequately consider the impacts of coal-fired power on children’s rights, particularly their constitutional right to a healthy environment.
Read more
Tribunal found Southern Restaurants imposed unreasonable conditions on a young breast-feeding mother leading to a finding of discrimination
A young breastfeeding mother was found to have been discriminated against by her employer and awarded $90,000 in compensation.
Read more
Acknowledgement of Country
The Human Rights Law Centre acknowledges the Traditional Owners of the lands across Australia, including the lands of the Wurundjeri, Boon Wurrung, Gadigal, Ngunnawal, Darug and Wadawurrung people where we work from.
We pay our respect to Elders past and present. This land always was, and always will be Aboriginal and Torres Strait Islander land. Sovereignty has never been ceded.
WARNING: This site contains images or names of people who have passed away.