The Human Rights Law Centre’s Ben Schokman said a Charter of Human Rights is a cost-effective way to promote human rights and would have significant social and economic benefits.

“Human rights are not optional extras. Experience in other jurisdictions such as Victoria and the ACT demonstrates that human rights protections in fact provide substantial economic and social benefits with minimal implementation costs,” said Mr Schokman.

Tasmanian Attorney-General Brian Wightman has said that work has stalled on establishing a Charter of Human Rights and associated Human Rights Commission because Tasmania can’t afford it. However, other important legislation would still go ahead this year in Tasmania despite budget cuts.

“Human rights violations have both human and economic costs. Investing in the protection of rights for all Tasmanians is crucial and is even more important during times of austerity. Tough economic times mean that individuals are more likely to have their human rights infringed,” explained Mr Schokman.

In its first four years of operation, the Victorian Charter of Human Rights cost only 50 cents per Victorian per year.

“Over the last four years Victorians have enjoyed improved human rights protections for less than the price of a cup of coffee. That’s a bargain.

“A Charter of Human Rights is a practical and cost effective way to protect and promote human rights. If potential violations of human rights laws can be weeded out during the early stages when laws and policies are being developed, then costly challenges and the need for changes are much less likely to be an issue further down the track.

“The Tasmanian Government must adopt the key recommendations of the Tasmanian Law Reform Institute and expedite the introduction of a Charter of Human Rights for the benefit of all Tasmanians” said Mr Schokman.

For further comments, please contact Ben Schokman on 0403 622 810 or ben.schokman@hrlc.org.au

Background

In October 2007, the Tasmanian Law Reform Institute published its Report on A Charter of Rights for Tasmania which recommended that a Charter of Human Rights be enacted in Tasmania.

In October 2010, over 200 organisations and individuals responded to a Directions Paper released by the Justice Department proposing a Charter of Human Rights and Responsibilities for Tasmania.

A copy of the Human Rights Law Centre’s submission on the Directions Paper is available online here.

The Human Rights Law Centre’s Director of Advocacy and Strategic Litigation, Anna Brown, said it is important to keep in mind that the police shooting of Tyler Cassidy was not a one off.

“More people are shot dead by police in Victoria than in any other state. Unless the Victoria Police force fundamentally change the way they deal with people in crisis, history will continue to repeat itself,” Ms Brown said. “We welcome the Coroner’s call for ‘urgent’ reform of police training to ‘safely manage vulnerable youth and people in crisis’,” said Ms Brown.

As well as structural reform, Ms Brown said a cultural shift was required within Victoria Police, which on average uses force every 2.5 hours.

“Only 73 seconds elapsed between the police first approaching Tyler and him being shot dead. In this short time, Tyler was sprayed with capsicum foam twice, took a phone call and was shot 10 times. Tyler may have been highly agitated and distressed, but police protocols and training should provide officers with the ability to safely deal with a wide range of circumstances without resorting to lethal force,” Ms Brown said.

The Human Rights Law Centre considers that Victorian law and the Victoria Police Manual need to be amended to make it clearer that force is only lawful as a last resort and when strictly necessary.

“Situations do arise where police may need to use force, but it should only be used with the utmost restraint and in a manner which minimizes damages and injury. Force should only be used to safeguard life and property, not for behavioural or compliance purposes,” Ms Brown said.

The Coroner’s findings also highlight the inadequacy of current systems for the investigation of police related deaths, which involve police investigating police. However, Ms Brown said that the Coroner’s recommendation that an “institutionally independent legally trained person” be available to observe the interviewing of police officers implicated in deaths is only a partial answer.

“Human rights law and international best practice require that such investigations be conducted by a body that is fully independent of police. An independent investigative body would not only reduce the risk of collusion or corruption, but increase public trust and confidence in police processes,” said Ms Brown.

“If the Victorian Government is serious about transparency and accountability, we need to ensure that these principles are upheld when Victorian citizens are injured or killed by Victoria Police.”

A copy of the Human Rights Law Centre’s recent report, ‘Upholding Our Rights: Towards Best Practice in Police Use of Force’ can be found online here: http://www.hrlc.org.au/files/HRLC-Police-Use-of-Force-Final-Report-2-September-20111.pdf.

For further information or comments, please contact Anna Brown on 0422 235 522 or anna.brown@hrlc.org.au.

The Government position is being coordinated by the Office of the Premier and the Department of Premier and Cabinet. It is likely that a decision on the future of the Charter will be made within Government by December 2011, with a formal Government position announced in March 2012.

We strongly encourage individuals and organisations to write to the Premier calling for the Victorian Charter to be retained and strengthened.

This page contains the following information:

• SARC’s Report on the Charter’s operation…
• … and the Premier’s Response
• Why and how the Victorian Charter should be maintained and strengthened
• What Can You Do?

SARC’s Report on the Charter’s operation…

The Scrutiny of Acts and Regulations Committee was tasked by the Attorney-General to review and report on the Charter’s operation and impact.

The Final Report of the Review of the Victorian Charter of Human Rights and Responsibilities Act 2006 was tabled in the Victorian Parliament on Wednesday 14 September 2011.

While the Committee recommended against repeal of the Charter in its entirety, it did recommend that courts have no role or a substantially reduced role in enforcing human rights and providing remedies when they are breached. It also recommended that government departments and public services have no or reduced obligations to act compatibly with rights. These amendments are tantamount to repeal.

If the recommendations of SARC on the future of the Charter are accepted, Victoria will become the first state in the developed, democratic world to substantially weaken the legal protection of human rights.

The Victorian Government is required to table a response to the Committee’s recommendations within six months. The Government is not bound by SARC’s recommendations and their response could involve strengthening, weakening or even repealing the Charter.

… and the Premier’s Response

In response to SARC’s report, the Premier announced that the Government response will be prepared and co-ordinated by the Department of Premier and Cabinet.  The Premier also stated that:

• the SARC report, and many of the submissions made to SARC, indicate that the Charter of Human Rights has delivered benefits to Victoria, and should not be repealed; and
• the views expressed in the SARC report are those of the cross-party committee members and not necessarily those of the Coalition Government.

Click here for a copy of the Premier’s media release and click here for the HRLC’s media release.

The Victorian Charter should be retained and strengthened

Why the Victorian Charter should be retained

The HRLC considers that the Victorian Charter should be maintained and strengthened for six key reasons:

1. The evidence clearly demonstrates that Charter of Human Rights is delivering benefits for Victorians
2. Predicted adverse consequences of the Charter have been proven unfounded and incorrect
3. There is very strong community support for the Charter
4. Substantial amendment of the Charter would create unnecessary costs and uncertainty
5. Human rights promote transparency and accountability in government and are essential for a fair and just Victoria
6. Victoria should not go down in history as the first democratic state to wind back human rights laws

These reasons are explained in further detail in the HRLC’s Briefing Paper to the Office of the Premier.

How the Victorian Charter could be strengthened

While the evidence shows that, overall, the Charter is working effectively and efficiently, there are a few modest reforms that the HRLC considers could streamline and strengthen the operation of the Charter. These are options

1. Civil and political rights:  Part 2 of the Charter could be amended to include all of the human rights contained in the International Covenant on Civil and Political Rights that are not currently enshrined in the Charter.
2. Economic, social and cultural rights:  Consideration should be given to amending Part 2 of the Charter to include human rights enshrined in the International Covenant on Economic, Social and Cultural Rights, but perhaps limiting the application of those rights to the functions set out in Part 3, Div 1 (Scrutiny of new legislation).
3. Limitations on human rights:  Section 7 of the Charter could be amended to clarify that it does not apply to absolute human rights, such as the right to protection from torture and cruel, inhuman or degrading treatment. This would ensure that human rights are not subject to limitations in Victoria that are strictly prohibited under international law.
4. Override by parliament:  Section 31 of the Charter, which enables Parliament to make an override declaration, could be repealed as it is unnecessary in a statutory model of human rights protection.
5. Legal proceedings and access to remedies:  Section 39 of the Victorian Charter, which relates to legal proceedings, is unnecessarily complex and is inconsistent with the principle that victims of human rights breaches should have accessible and effective remedies. It could be replaced with a provision that: establishes a free-standing cause of action for breaches of protected human rights which is justiciable and enforceable in the appropriate court or tribunal (including the Victorian Civil and Administrative Tribunal); and empowers the court or tribunal to grant such relief or remedy, or make such order, within its powers, as is “just and appropriate”, including making an award of damages where appropriate.
6. Notice provisions:  Section 35, which requires that the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission be notified of proceedings brought under the Charter, can operate as a disincentive to meritorious submissions, delay proceedings and increase compliance costs. Section 35 could be repealed or, alternatively, amended to provide courts and tribunals with discretion to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason.
7. Auditing of public authorities:  Section 41 could be amended to vest the Victorian Equal Opportunity and Human Rights Commission with an own motion power to inquire into and audit the compliance of a public authority’s policies, programs and practices with human rights.
8. Savings provision:  Section 48 of the Charter could be repealed or, alternatively, amended to provide that it does not apply to Part 3, Div 1 of the Charter. This would ensure that laws relating to abortion are subject to pre-enactment human rights scrutiny.

What Can You Do?

We are encouraging interested organisations and individuals to support the Premier to do the right thing and retain and strengthen the Victorian Charter. Those wishing to do so should write to the Premier or their local MP to indicate that there is strong community support for the Victorian Charter. Contact details for Premier Baillieu are available here.

Further Information

Further information about the Victorian Charter and its impcat and operation is available at http://www.hrlc.org.au/content/review-of-the-victorian-charter-of-human-rights/.

Whatever one’s views on the Occupy Melbourne protesters and their aims, the decisions and actions taken by Lord Mayor Robert Doyle and the Victoria Police to forcibly evict peaceful demonstrators from City Square raise a number of serious questions about infringement of fundamental civil and political rights and the excessive use of force by Victoria Police.  Importantly, in Victoria, these human rights have legal force, through the Victorian Charter of Human Rights and Responsibilities, our version of a human rights act.

Lord Mayor Robert Doyle has a democratic duty as a public official and a legal responsibility as a ‘public authority’ under the Charter to act compatibly and give proper consideration to human rights when making decisions. These rights include freedom of expression and the right to peaceful political assembly, as well as the right to liberty and security of person. The decision to forcibly evict the protesters should be carefully scrutinized against these obligations.  The onus lies very clearly on Melbourne City Council and Victoria Police to justify the necessity for the forcible eviction of the protesters.  It is also incumbent upon the authorities to demonstrate that the action taken was necessary and proportionate in the circumstances.  It is difficult to see how the stated objectives of restoring the amenity and aesthetic of City Square could justify substantial interference with fundamental rights and freedoms.

The Victoria Police have responded to criticism by stating that they were obliged to act following the Council decision.  Regardless of whether the decision to evict the protesters was lawful or not (and arguably it was not), the use of force by Victoria Police must also comply with the law, in particular, the legal responsibility to respect human rights when carrying out their duties.

Police officers should only use force as a last resort and only when strictly necessary.  It should be used with the utmost restraint and in a manner which minimises damage and injury.  For example, the use of capsicum spray is only justified if there is an imminent threat of serious injury and officers have attempted other non-violent means.  It is incumbent upon Victoria Police to demonstrate that the force used against the protesters was absolutely necessary in the circumstances.

The use of temporary fencing to contain the protesters should also be scrutinised. “Containment” is a tactic used by police to contain and eventually disperse large groups of protesters. Victoria Police contained the Occupy Melbourne protesters with some success last Friday morning in order to effect their eviction from City Square.  The High Court in England recently considered this issue in relation to the G20 protests in London and police were found to have acted unlawfully in containing non-violent protesters.  The Court said that containment of protesters was only justified in “truly extreme and exceptional circumstances” where no other means where available to prevent an imminent breach of the peace and only “as a last resort catering for situations about to descend into violence”.  It is difficult to see how Victoria Police’s containment of the protesters was justified when measured against these threshold requirements.

Unfortunately, excessive use of force is not a new issue for Victoria Police.  The Human Rights Law Centre and other community organisations have long campaigned for reform of the regulation, training and monitoring of police use of force.  Greater compliance with human rights standards in policing would not only reduce the incidence of force but also increase public confidence in policing.

The tactics used by Victoria Police during the eviction of the protesters have led to calls for an independent investigation into the excessive use of force by Victoria Police. The events serve to underline the need for a fully independent, adequately resourced body to investigate police misconduct and incidents involving the excessive use of force.  Such an independent investigatory body would not only reduce the risk of collusion or corruption, but increase public trust in police processes.

In recent years, Victoria Police has made welcome improvements to training on the use of force; including by promoting the importance of human rights and increasing the emphasis on communication and conflict de-escalation.  Victoria Police itself has said that ‘human rights protection is synonymous with good policing in liberal democratic societies’.  The recent actions of Victoria Police in forcibly evicting peaceful protesters and suppressing the rights to freedom of expression and assembly, however, show that further reform is necessary to “uphold our rights”.

Anna Brown is Director of Advocacy and Strategic Litigation at the Human Rights Law Centre. 

This article was first published in The Age (Melbourne) on 26 October 2011

The Scrutiny of Acts and Regulations Committee today tabled its review of the Victorian Charter of Human Rights and Responsibilities. While the Committee recommends against repeal of the Charter, it does recommend that courts have no role or a substantially reduced role in enforcing human rights and providing remedies when they are breached. It also recommends that government departments and public services have no or reduced obligations to act compatibly with rights

“Overall, the Committee’s report is profoundly disappointing,” said Phil Lynch, Executive Director of the Human Rights Law Centre. “The recommendations do not reflect the overwhelming evidence as to the value and benefits of Victoria’s Charter of Human Rights. These benefits include greater government accountability, more responsive public services, and a better deal for some of Victoria’s most vulnerable groups, such as people with disability, people with mental illness and the homeless.”

Mr Lynch said that while the report made some welcome recommendations that could streamline and strengthen parliamentary scrutiny of the human rights impacts of proposed laws, most of the proposed reforms were regrettable and regressive. “Parliament has an important role to play in promoting and protecting human rights, but it’s not the be all and end all. Government and public services also have a critical role to play in respecting human rights and courts in upholding them,” said Mr Lynch.

“This review should have been used as an opportunity to strengthen the human rights of all Victorians, such as by amending the Charter to enshrine the rights to adequate housing, education and health care,” he said. “Instead, if enacted, the recommendations will reduce government accountability and Victorians’ access to a fair deal if their rights are breached.”

The Victorian Government has six months to respond to the report. “If the Baillieu Government is serious about its commitment to a fair and just Victoria, it will reject most of the recommendations in this report,” said Mr Lynch. “Victorians deserve greater recognition and protection of values such as freedom, dignity, equality and respect, not less.”

The SARC report is available at http://www.parliament.vic.gov.au/sarc/article/1446.

The Human Rights Law Centre submission to the inquiry is at http://www.hrlc.org.au/content/review-of-the-victorian-charter-of-human-rights/.

Contact:

Phil Lynch (03) 8636 4450 or 0438 776 433

Ben Schokman (03) 8636 4451 or 0403 622 810

In the case of Momcilovic v The Queen & Ors [2011] HCA 34 (8 September 2011), the High Court held that the Charter protects fundamental human rights and maintains parliamentary sovereignty.

By a majority of 6-1, the Court held that s 32(1) of the Charter, which requires that Victorian legislation be interpreted consistently with human rights, is an ordinary principle of statutory interpretation that does not empower the courts to radically re-interpret legislation or subvert parliament’s intent. According to Phil Lynch of the Human Rights Law Centre, which made submissions to the High Court in the matter, “The Court has affirmed that, consistent with the rule of law, the judiciary has an important role to play in upholding human rights. Far from being undemocratic, an independent judiciary which is empowered to interpret laws to protect rights and freedoms is a fundamental feature of our liberal democracy.”

By a majority of 4-3, the High Court also held that the power conferred by parliament on the courts to make a declaration notifying parliament where legislation may be incompatible with human rights is valid. “Declarations of Inconsistent Interpretation under the Charter play an important role in calling the attention of parliament and the people to laws that may be inconsistent with human rights,” said Mr Lynch. Such declarations do not affect the validity of legislation, but instead act as a trigger for parliament to consider whether a particular law should be amended to better protect the human rights of all Victorians.

The High Court’s extensive consideration of the Charter arose in an appeal by Vera Momcilovic against her conviction for drug trafficking. The Court quashed her conviction and ordered a re-trial. It is important to note, however, that the conviction was not quashed because of the Charter. Instead, the High Court upheld the appeal on the basis that the Victorian courts in which she was convicted had misconstrued the operation of the Drugs Act.

According to Mr Lynch, the High Court’s decision is particularly important and timely in light of the Baillieu Government’s current review of the Charter. “Any suggestion that the Charter shifts power to judges and usurps parliamentary sovereignty can be laid to rest,” said Mr Lynch. “There is also no longer any doubt, if ever there was, that the Charter is valid and constitutional”.

Mr Lynch said that the High Court’s decision has helpfully identified the need to clarify the operation of s 7 of the Charter, which relates to permissible limitations on rights. Earlier in the week, on Tuesday, the Victorian Court of Appeal decision in Sudi also identified the need to clarify s 39, which relates to legal proceedings. “These landmark judgments are very timely,” said Mr Lynch. “Together, they affirm the validity and operation of the Charter but also helpfully chart the course for minor amendments to the Charter to increase certainty in the interpretation of laws and provide Victorians with better access to remedies for human rights breaches.”

The judgment is available at http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html.

ENDS

Director of Housing v Sudi [2011] VSCA 266 (6 September 2011)

Summary

The Victorian Court of Appeal has decided that VCAT, in an application for a possession order under the Residential Tenancies Act 1997, did not have power to consider whether, by making the application for the possession order, the Director of Housing had complied with s 38(1) of the Charter. Section 38(1) states it is unlawful for a public authority to act in a way that is incompatible with, or fail to give proper consideration to, a relevant human right.

Facts

Mr Sudi was born in Somalia in 1982 and came to Australia in 1995 as a refugee, with his mother and several siblings. Mr Sudi’s mother applied for public housing and subsequently entered into a tenancy agreement with the Director of Housing in February 1998. Mr Sudi lived with his mother in that house until about 2005 when he married.

In May 2007, Mr Sudi’s mother became unwell so he returned to the premises for a short time to look after her. She subsequently died and in about June 2008 Mr Sudi and his son moved back into the premises on a permanent basis. The Director of Housing made an application to the Victorian Civil and Administrative Tribunal under s 344(1) of the Residential Tenancies Act 1997 for a possession order.

Mr Sudi argued the Director’s application was unlawful on the grounds that the decision to apply to VCAT to have him evicted amounted to a serious interference with his (and his son’s) rights to privacy, family and the home protected under s 13(a) of the Charter of Human Rights and Responsibilities Act 2006. Mr Sudi further argued that, by consequence of this unlawfulness, the Director was not entitled to seek to evict him.

It was common ground that the Director of Housing is a public authority under s 4 of the Charter and, as such, is required by s 38(1) to act compatibly with human rights and give proper consideration to human rights in making decisions. However, the Director submitted that VCAT had no jurisdiction to consider the lawfulness of his decision under the Charter as it was a matter reserved for the Supreme Court.

Justice Bell, sitting as the President of VCAT, dismissed the Director’s application and, in doing so, held:

• VCAT had jurisdiction to consider the Charter issues in the case;
• the decision and conduct of the Director in seeking to evict Mr Sudi and his son without providing any justification under s 7(2) of the Charter was an unjustifiable breach of the right to family and the home under s 13(a) and thus unlawful pursuant to s 38(1); and
• accordingly, the application by the Director for a possession order was invalid.

This decision was appealed by the Director and a threshold question arose: does VCAT have power (in a proceeding such as this) to review the lawfulness of the Director’s decision to make the application for the possession order?

Decision

In three separate judgments, Warren CJ, Maxwell P and Weinberg JA of the Court of Appeal held VCAT did not have the power to review the lawfulness of the Director’s decision to make an application for the possession order. It concluded that a proper construction of the RTA and the VCAT Act meant that not only did VCAT not possess the requisite judicial review jurisdiction to undertake such a review, it also did not have the power to undertake collateral review of the Director’s administrative decision. Further, it held that in the event the construction of the RTA and the VCAT Act limited any rights protected by the Charter, no declaration of inconsistency was warranted. Therefore, once the Director’s decision to make an application for the possession order was assumed to be valid, the Director’s entitlement to possession could no longer depend on whether the Director had complied with the Charter in making the decision.

The reasons for its decision are as follows.

VCAT does not possess a judicial review jurisdiction

As the orders of Bell J had the effect of quashing the Director’s application by declaring it invalid as a matter of law, the substantive consequence of the orders made by Bell J was in the nature of certiorari (in other words, judicial review of an administrative decision). Traditionally, prerogative remedies such as this have been exercised only by the Supreme Court.

The proceedings were brought to VCAT under its original jurisdiction which is derived entirely from statute. Technically under the State’s constitutional regime it might be possible for Parliament to grant jurisdiction to administrative tribunals to exercise prerogative remedies. However, in this instance, there was no express provision or clear implication conferring on VCAT the power to carry out judicial review of administrative decisions. Accordingly, VCAT’s original jurisdiction did not encompass a judicial review jurisdiction.

VCAT does not have the power to undertake collateral review

VCAT’s lack of judicial review jurisdiction was not necessarily fatal to its ability to undertake an inquiry into the validity of the Director’s decision to make an application for a possession order. In this case, the legal validity of the Director’s decision was not an issue. The question of validity only arose incidentally – that is, “collaterally” – as part of Mr Sudi’s defence to the Director’s application for possession.

There are cases in which an inferior court with no judicial review jurisdiction may entertain a collateral challenge – or in other words, jurisdictional challenge – to the validity of an administrative decision. However, the scope of permissible collateral challenges remains a matter of some controversy.

In this case, the Court held that collateral challenges would be “wholly inconsistent” with the purpose of the RTA and the VCAT Act even if the RTA and the VCAT Act were interpreted in a manner that was compatible with human rights (as required by s 32 of Charter). Were such a power to exist, the power of collateral review would have to encompass the full range of conventional judicial review grounds and it would be open to a respondent to raise a number of grounds said to impugn the lawfulness of the Director’s decision to apply to VCAT. According to the Court, this would be complex, technical and time-consuming and inconsistent with the RTA and the VCAT Act’s function in providing inexpensive and quick resolution of disputes.

Further, the Court held that s 39(1) cannot be read to mean the Charter expressly or impliedly confers a collateral review power on VCAT. The Court held that, under s 39(1) of the Charter, the right to argue that administrative action is unlawful because of non-compliance with the Charter can only be asserted when there would be a right to seek review of that action independently of the Charter. Neither the VCAT Act nor the RTA provides any such remedy independently of the Charter. According to Weinberg JA, the “legislative intent disclosed by s 39 is that Charter unlawfulness can be relied upon as a ground in – and only in – a proceeding the object of which is to seek ‘relief or remedy in respect of an act or decision of a public authority on the ground that … [it] was unlawful’ “. As a result, any argument an act or decision was unlawful can only be heard as a direct challenge before VCAT.

Declaration of inconsistency

Warren CJ and Weinberg JA held that in the event the construction of the RTA and the VCAT Act limited the right under s 13(a) of the Charter, no declaration of inconsistency was warranted as it was demonstrably justified by the policy benefits of maintaining VCAT’s role as a forum for quick, efficient and inexpensive resolution of issues arising under the RTA that properly fall within VCAT’s jurisdiction.

Maxwell P looked at this slightly differently and stated that in the event the Director’s conduct in seeking possession of the premises is an unjustified interference with that right, no declaration of inconsistency was warranted as the unavailability of collateral review did not affect the substantive right. Instead, it was simply a procedural matter about the proper forum in which to litigate questions of unlawfulness under the Charter.

Application to the Victorian Charter

Whilst acknowledging that tribunals deal routinely with questions of law, the Court of Appeal basically stated VCAT can not deal with Charter issues in the same expert way as the Supreme Court and distinguished authorities to the contrary in other jurisdictions on the basis that there is no requirement in the Charter for a tribunal to satisfy itself that the procedure has been followed.

This decision has disappointing implications, particularly when the Court of Appeal has highlighted the importance of providing inexpensive and quick resolution of disputes and recognised the Supreme Court is effectively inaccessible to many of the individuals the Charter seeks to protect.

Weinberg JA did not consider the resulting situation would be “catastrophic” as “the legal profession has shown a ready willingness to provide assistance, often through legal or pro bono in proceedings which give rise to legitimate Charter issues”. That may be the case. However, legal aid and pro bono assistance is not limitless and, when human rights belong to all people without discrimination, access to justice considerations should be at the fore.

The decision is at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2011/266.html.

Susanna Kirpichnikov is a lawyer with Lander & Rogers and a former secondee with the Human Rights Law Centre

A media release on the decision by the PILCH Homeless Persons’ Legal Clinic is available here.

• the common law and our political system of representative democracy already adequately protect human rights;
• the Victorian Charter undermines parliamentary sovereignty and transfers power from parliamentarians to unelected judges;
• the Victorian Charter is a lawyers’ picnic and leads to more litigation;
• the Victorian Charter protects the rights of minorities at the expense of the majority and is therefore undemocratic;
• the Victorian Charter is bureaucratic, costly and inefficient;
• the Victorian Charter undermines religious freedoms;
• human rights are vague and ill-defined; and
• the expression of the human rights contained in the Victorian Charter is inconsistent with the expression of those rights in international conventions, like the ICCPR.

The HRLC’s comprehensive submission to the Scrutiny of Acts and Regulations Committee is available here.

Summary

In this case, the Supreme Court of Victoria held that the Victorian Civil and Administrative Tribunal had both failed to interpret law consistently with human rights and had itself failed to act compatibly with human rights in appointing an administrator to sell the home of a man with disability against his wishes.

Facts

Patrick is a 58 year old man who has a mental illness and has been an involuntary patient in a hospital for over ten years. He owns a house and wants to live independently in the community. According to the Court, however, this is “quite unrealistic” and would likely lead to a “serious deterioration” in his physical and mental health.

The hospital “wants to move Patrick to supported accommodation in a hostel, which he opposes”. The hospital considers that “the move would be more likely to succeed if Patrick did not continue to own his home” and therefore applied to the Victorian Civil and Administrative Tribunal for an administrator to be appointed over his estate with a view to selling the house.

At first instance, VCAT decided that “Patrick was a person with a disability who was unable to make reasonable judgments about his estate and needed an administrator”. Although the Tribunal accepted that Patrick had a “very strong connection with his home”, it decided that “judgments about his estate could not be separated from where it was in his best interests to live”. Accordingly, it appointed State Trustees Ltd to be an unlimited administrator, knowing it would probably sell Patrick’s home.

Patrick appealed to the Supreme Court of Victoria to set aside the appointment of the administrator, contending that “he manages his finances and home reasonably well and the administration order unjustifiably interferes with his human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).”

Decision

Justice Bell allowed the application and set aside the order of the Tribunal to appoint an administrator on two grounds. First, His Honour held that VCAT made an error of law, stating that:

…appointing an administrator, particularly with unlimited powers, is a very serious step because it transfers complete and exclusive control of a person’s estate to the administrator. Such a step engages the human rights, and the fundamental common law rights and freedoms, of persons. In accordance with the applicable principles, I have interpreted the provisions of the Guardianship and Administration Act so as to preserve as much as possible a person’s human rights to choose where to live, including in a home which they own (s 12), to be free of arbitrary and unlawful interference with their home (s 13(a)) and to enjoy these rights equally with other people (s 8(3)), as specified in the Charter of Human Rights and Responsibilities Act…

Second, His Honour held that, as a public authority under s 4(1) of the Charter, the Tribunal was required by operation of s 38(1) to exercise the discretion to appoint an administrator compatibly with Patrick’s human rights. In the circumstances, Bell J “concluded the appointment of the administrator was not reasonable and demonstrably justified and was therefore incompatible with Patrick’s human rights and unlawful.” His Honour stated that:

The appointment infringes [Patrick’s] human rights very seriously, as the administrator will take complete management and control of his money and other property, and probably sell his home. No sufficient purpose has been shown to justify such a serious infringement of his human rights, as he is not in a crisis (or anything like it) in terms of his health, accommodation or otherwise. He has not been found to be mismanaging his money or his home. It is not known whether transferring him to a hostel would be successful, temporary or permanent. Lastly, appointing an unlimited administrator was virtually the most rather than the least restrictive option which was reasonably available.

Consideration of Charter Issues

In reaching the conclusions above, Bell J made a range of significant statements regarding the interpretation and application of the Charter, some of which are summarised below.

Scope and engagement of human rights (paras 36-40)

For the purpose of determining whether there has been a limitation, restriction or interference with human rights, rights should be interpreted broadly, purposively and in a “non-technical way”.

Equality (paras 41-44)

The right to equality under s 8 of the Charter is a “right of fundamental importance”. It includes the right to non-discrimination on the grounds of disability and is, by definition, engaged by the appointment of an administrator.

Freedom of movement (para 45-52)

The right to freedom of movement protected by s 12 of the Charter “protects a person’s liberty of movement in Victoria and their freedom to choose where to live” and to establish a residence. Legislation or legal steps to remove a person from their home or to prevent them from returning home engages the right to freedom of movement.

Right to privacy and home (paras 53-62 and 74-86)

The right of persons “not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with” is right of “considerable amplitude”, the purpose of which is “to protect and enhance the liberty of the person – the existence, autonomy, security and wellbeing of every individual in their own private sphere”.

Contrary to the view of Kaye J in WMB v Chief Commissioner of Police [2010] VSC 219, the right to freedom from “arbitrary” interference is not limited to interference “which stems from an act of caprice or whim”. Rather, consistent with international and comparative human rights law, including jurisprudence of the UN Human Rights Committee:

the human right in s 13(a) not to have your privacy, family, home or correspondence ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.”

Right to property (paras 87-95)

Section 20 of the Charter provides that “a person must not be deprived of his or her property other than in accordance with law.”

The terms “property” and “deprived” should be “interpreted liberally and beneficially to encompass economic interests and deprivation in a broad sense.”

The requirement that any deprivation of property be “in accordance with law” requires not only that the deprivation be legally authorised, but that “the law concerned must be publicly accessible, clear and certain and not operate arbitrarily.”

In the present case, the appointment of an administrator amounted to “a de facto deprivation of property which engaged the right in s 20”, however, “the provisions of the Guardianship and Administration Act plainly answer the description of a ‘law’ within that provision”.

Relevance and weight of jurisprudence of the UN Human Rights Committee (paras 63-73)

Contrary to WMB v Chief Commissioner of Police [2010] VSC 219, in which “Kaye J doubted the jurisprudential value of findings of the UN Human Rights Committee” in assisting in the interpretation of the Charter, Bell J stated that:

The Human Rights Committee is an independent body of human rights experts established under the International Covenant on Civil and Political Rights. Although it is not a court, it is quasi-judicial in character. Its decisions and general comments are not binding precedents and it our duty to form an independent view on the matters in issue. But the opinions of the committee represent an important body of jurisprudence on the interpretation and application of the covenant. Australian courts of high authority have referred to and relied on the opinions and general comments of the committee when interpreting the provisions of the covenant or domestic legislation to which it is relevant…That is especially so when identifying the scope of the human rights in the Charter, which reflect to a large extent those specified in the covenant.

Application of the Charter to the Tribunal (paras 97-129)

Pursuant to s 38(1) of the Charter, “public authorities” must act compatibly with human rights. “The concept of a public authority is thus critical to the achievement of the purposes of the Charter” and “should be given a beneficial interpretation which is consistent with that purpose.”

The focus of the definition of “public authority” is “on matters of substance, not form or technicalities”. This accords with the Second Reading Speech which states that the “intent is that the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature.”

When acting in an administrative capacity in its original and review jurisdiction, “the Tribunal is a public authority under s 4(1)(b) of the Charter and bound by s 38(1) to act compatibly with human rights”.

Section 32 Interpretative Obligation (paras 239-271)

Section 32(1) of the Charter requires that the relevant provisions of the Guardianship and Administration Act “be interpreted compatibly with human rights so far as that is possible consistently with the purpose of those provisions.” The “possible interpretations must be explored within the framework of the ordinary rules of interpretation, having regard to that purpose” and “the interpretation which least infringes human rights must be adopted”.

Section 39 – Legal Proceedings (paras 290-303)

Section 39(1) of the Charter “does not create a new cause of action or other proceeding”. Instead, “it attaches unlawfulness arising under the Charter as a ground to existing causes of action or proceedings by which relief or remedy may be obtained in respect of the act or decision on a ground of unlawfulness arising otherwise than because of the Charter. It then operates to make that relief or remedy available in that cause of action or proceeding on the ground of unlawfulness arising under the Charter, whether or not that relief or remedy is granted on a ground of unlawfulness not arising in that way.”

Accordingly, to apply s 39(1), “it is necessary to ask whether the [person] ‘may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful’. If the answer to that question is positive, then ‘that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter’.” By way of example, “in judicial review proceedings in which any relief or remedy may be sought on grounds of Wednesbury unreasonableness, s 39(1) permits the applicant to rely on a ground of unlawfulness arising under the Charter. Where Charter unlawfulness is established, the relief or remedy which could be sought on the ground of Wednesbury unreasonableness can be granted by the court on a ground of unlawfulness arising under the Charter, whether or not the unreasonableness ground is determined.”

Sections 38 and 7(2) – Obligation to Act Compatibly with and Give Proper Consideration to Human Rights (paras 304-333)

Pursuant to s 38(1) of the Charter, an “act or decision of a public authority will be unlawful if it is ‘incompatible with a human right’ or proper consideration to a human right was not given”. The concept of “compatibility” in s 38(1) is to be read in conjunction with “the concept of justification in s 7(2).” Reading the provisions together, “an act or decision of a public authority will be unlawful under s 38(1) if it limits a human right in a manner which is not reasonable and demonstrably justified as specified in s 7(2), unless s 38(2) applies.”

Under s 7(2), “the onus of establishing that the limitation is demonstrably justified lies on the party seeking to uphold the justification. The standard of justification is stringent. Where matters of fact are involved, cogent evidence may be necessary. While the civil standard of proof applies, a high degree of probability is required, because limiting human rights is involved.”

The “‘procedural’ limb of s 38(1) that ‘proper consideration’ be given to relevant human rights requires public authorities to do so in a practical and common-sense manner”. While there is “no formula”, the public authority must “seriously turn his or her mind to the human rights impact of what is proposed and identify the countervailing interests or obligations”.

While the procedural limb is critical, s 38(1) also “requires the act or decision to be compatible with human rights” and “what matters is the result”. “Consideration” will not be “proper, however seriously and genuinely it was carried out, if the act or decision is incompatible with human rights.”

Judicial Review of Public Authorities under s 38 (paras 304-327)

When reviewing acts and decisions of public authorities under s 38, “the function of the court is to make an independent and objective judgment for itself about whether the limitation is justified under s 7(2) and therefore whether the act or decision is unlawful as incompatible with human rights or compatible and therefore lawful. The better was the consideration given to human rights at first instance, the harder it will be to challenge the act or decision concerned; but it is the actual compatibility of the act or decision with human rights that is at issue, not the quality of the reasoning supporting it.”

Although the standard of review to be applied by a court when assessing unlawfulness under s 38(1) and s 7(2) of the Charter does not amount to merits review, it “is a more intensive standard of judicial review than traditional judicial review on (say) Wednesbury unreasonableness grounds”. Endorsing the approach of Lord Steyn in R (Daly) v Secretary of State for the Home Department, His Honour quoted that:

First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relevant weight accorded to interests and considerations.

Proportionality therefore “draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests than traditional judicial review”.

While it is critical that courts “provide effective judicial protection for human rights” they must at the same time “respect the administrative function of the public authority under its legislation and not drift into merits review”. One important way of addressing that issue is “by affording weight and latitude to the acts and decisions of primary decision-makers”. The degree of weight or latitude which is afforded, and the intensity of the review which this implies, depends on the context and circumstances”, including “the comparative institutional advantage of the court (if any); the experience and expertise of the primary decision-maker; the nature and importance of the right, and the purpose of the interference, in question; and how well suited the court is to considering the values and interests which are at stake.”

The decision is at http://www.austlii.edu.au/au/cases/vic/VSC/2011/327.html.

Phil Lynch is Executive Director of the Human Rights Law Centre

The Victorian Attorney-General recently announced a review of the Charter of Human Rights and Responsibilities Act 2006 (Victorian Charter) after four years of its operation.  The review is to be conducted by the Scrutiny of Acts and Regulations Committee (SARC), which is due to report to Parliament by 1 October 2011.

Further information about the conduct of the review by SARC is available at http://www.parliament.vic.gov.au/sarc/inquiry/297.

An Opportunity to Strengthen the Victorian Charter

Four years after the introduction of the Victorian Charter, clear evidence is emerging that the Charter is having a beneficial impact on the operation of government and individuals in the community.  The review of the Victorian Charter presents a significant opportunity to strengthen and enhance its operation.

The HRLC has made a submission to the review of the Victorian Charter, which addresses:

• the overall impacts and benefits of the Charter;
• the Charter’s impact on legislative and policy formulation;
• the Charter’s impact on decision making and service delivery;
• the Charter’s impact on Victorian law; and
• myths and misconceptions associated with the Charter’s operation to date.

In its submission, the HRLC makes 20 key recommendations to improve the Charter’s effectiveness.

The HRLC has also made a further submission to the review of the Victorian Charter in response to issues raised in other public submissions to SARC.  The further submission addresses some of the views expressed in relation to the operation of the Victorian Charter that are unfounded in evidence or based on myths or misunderstandings.

Key Submissions to the Review of the Charter

The HRLC has compiled a list of submissions that have been made to the review of the Victorian Charter.

Further Information about the Review of the Victorian Charter

For further information about the HRLC’s activities in relation to the review of the Victorian Charter, please contact Ben Schokman on (03) 8636 4451 or ben.schokman@hrlc.org.au.