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This article revisits s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In particular, the article examines the potential ability of the courts to deploy s 32(1) to reach ‘strained’ constructions and ‘depart’ from legislative intention. This article disputes the following three propositions from the post-Momcilovic v The Queen jurisprudence in the Victorian Court of Appeal. Firstly, s 32(1) does not allow for a departure from the ‘ordinary meaning’ of a statutory provision (an ordinary meaning usually denotes a literal and grammatical, ie not strained, meaning). Secondly, s 32(1) does not allow for a departure from, or overriding of, legislative intention upon enactment. Thirdly, the qualifications placed on s 32(1) are such that it will not usually permit the ‘reading in’ or ‘reading down’ of words as techniques used to reach strained constructions. The article also argues that issues as to s 32(1)’s strength and methodology appear to have been conflated in the recent jurisprudence. It concludes that as the jurisprudence currently stands, s 32(1)’s ability to reach strained constructions is weaker than the principle of legality. This is inconsistent with s 32(1) being at least equal to the principle of legality.

This article revisits s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In particular, the article examines the potential ability of the courts to deploy s 32(1) to reach ‘strained’ constructions and ‘depart’ from legislative intention. This article disputes the following three propositions from the post-Momcilovic v The Queen jurisprudence in the Victorian Court of Appeal. Firstly, s 32(1) does not allow for a departure from the ‘ordinary meaning’ of a statutory provision (an ordinary meaning usually denotes a literal and grammatical, ie not strained, meaning). Secondly, s 32(1) does not allow for a departure from, or overriding of, legislative intention upon enactment. Thirdly, the qualifications placed on s 32(1) are such that it will not usually permit the ‘reading in’ or ‘reading down’ of words as techniques used to reach strained constructions. The article also argues that issues as to s 32(1)’s strength and methodology appear to have been conflated in the recent jurisprudence. It concludes that as the jurisprudence currently stands, s 32(1)’s ability to reach strained constructions is weaker than the principle of legality. This is inconsistent with s 32(1) being at least equal to the principle of legality.

The term ‘principle of legality’ has most commonly been associated with one particular common law interpretive principle — the presumption that Parliament does not intend to interfere with fundamental common law rights, freedoms and immunities. The rationale is that it is in the last degree improbable that Parliament would abrogate or curtail such matters without clear and unambiguous language. The principle of legality is concerned with actual legislative intention. In recent times, it has been argued that a competing rationale has emerged, and the rationale of the principle is also facing contemporary challenges. In light of this, the nature and conceptual basis of the principle is briefly discussed. Moreover, the principle of legality, despite being long established, has been criticised for lacking clarity in its scope and operation. The purpose of this article is to comprehensively examine the principle’s scope and operation, having regard to the above-mentioned issues of rationale. This article focuses on the subject matter protected by the principle and the principle’s strength, including whether justification and proportionality considerations can have any role to play. It identifies and analyses methodological issues which remain unsettled, reaches conclusions as to methodological inconsistencies between the principle’s rationale and its application in practice, and provides some suggestions as to how this might be rectified.

The power of Victorian government agencies to refuse to process voluminous Freedom of Information (‘FOI’) requests is contained in s 25A(1) of the Freedom of Information Act 1982 (Vic). During the initial years of operation, it was claimed that this power would not be ‘antidemocratic’, ‘anti-open government’ or ‘otherwise contrary to the spirit of FOI’, given the existence of adequate safeguards and so long as agencies upheld their duties in practice. This article examines whether that has proven to be the case nearly two decades on from the provision’s introduction in 1993. It concludes that despite several conceptual diffi culties, s 25A(1) has its rightful place in the FOI statutory regime.