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.