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Victorian Civil and Administrative Tribunal
Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011) Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011) Summary On 28 [...]
Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011) Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011) Summary On 28 [...]
Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011) Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011) Summary On 28 [...]
When will disciplinary action constitute a ‘punishment’? Psychology Board of Australia v Ildiri (Occupational and Business Regulation) [2011] VCAT 1036 (14 June 2011) Summary The Victorian Civil and Administrative Tribunal (VCAT) has held that deregistering a practitioner for unprofessional conduct under the Health Professions Registration Act 2005 (Vic) is not punishment and therefore does not [...]
Right to equality and anti-discrimination exemptions Thales Australia Limited and ADI Munitions Pty Ltd (Anti-Discrimination) [2011] VCAT 729 (29 April 2011) Summary In this decision the Tribunal granted an exemption from certain provisions of the Equal Opportunity Act 1995 (Vic) (EO Act) to companies carrying out contracts with American firms in the defence industry. The [...]
VCAT Considers Disability Discrimination Under the Charter Caserta v Director of Public Transport [2011] VCAT 98 (27 January 2011) Summary The applicant sought a review of the decision of the Director of Transport (‘Director’) refusing to grant him an application for driver accreditation for a commercial passenger vehicle. The Victorian Civil and Administrative Tribunal (‘VCAT’) [...]
Director of Housing v KJ (Residential Tenancies) [2010] VCAT 2026 (16 December 2010) A recent VCAT decision found that the Director of Housing (‘Director’) acted in accordance with its duties as a public authority pursuant to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in serving the respondent with a [...]
Director of Housing Considers Rights of Vulnerable Tenants Director of Housing v TK [2010] VCAT 1839 (16 November 2010) A recent VCAT decision has shown that public housing authorities are developing a more thoughtful and engaged model of decision making that gives proper consideration to the human rights of vulnerable tenants. Facts The Director of Housing [...]
Can a Commercial Entity Discriminate against People because of their Sexual Orientation on the Grounds of Its Religious Beliefs? Cobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613 (8 October 2010) VCAT has recently ruled that a Christian adventure resort has discriminated against a gay youth suicide prevention group [...]
What is the Relationship between the Charter and the Equal Opportunity Act? McAdam v Victoria University & Ors (Anti-Discrimination) [2010] VCAT 1429 (3 September 2010) This decision illustrates how Charter arguments may complement complaints under the Equal Opportunity Act 1995 (Vic). It considers an application by Victoria University to strike out or dismiss a number [...]
VCAT Considers Right to Equality and Retrospective Operation of the Charter Valentine v Emergency Services Superannuation Board [2010] VCAT No G585/2008 (29 July 2010) The Victorian Civil and Administrative Tribunal has held that s 32 of the Charter does not apply retrospectively to affect the interpretation of the State Superannuation Act 1988 (Vic) insofar as [...]
Tribunal has Jurisdiction to Determine whether Public Authority has Acted Compatibly with Human Rights Director of Housing v TK [2010] VCAT Application 2010/11921 (Unreported, 22 July 2010) VCAT Deputy President Lambrick has held that the Tribunal has jurisdiction to determine whether an application made pursuant to ss 250 and 330(1) of the Residential Tenancies Act [...]
Right to Equality and Anti-Discrimination Exemptions: Special Measures to Reduce Disadvantage Department of Human Services & Department of Health (Anti-Discrimination Exemption) [2010] VCAT 1116 (29 June 2010) In this decision, McKenzie DP granted an exemption on the basis that it constitutes an appropriate special measure to reduce disadvantage caused by discrimination, as permitted by s [...]
Right to Equality and Anti-Discrimination Exemptions Members of Owners Corporation on Plan of Subdivision No 441923W (Anti-Discrimination Exemption) [2010] VCAT 1111 (28 June 2010) In this decision, McKenzie DP refused to grant a proposed exemption because it was not the least restrictive means of achieving the desired outcome, contrary to s 7(2)(e) of the Charter. [...]
Application of Charter to Guardianship and Administration PJB (Guardianship) [2010] VCAT 643 (17 May 2010) Justice Billings in the Victorian Civil and Administrative Tribunal has held that the appointment of an administrator to the estate of a represented person, PJB, was a justifiable restriction on PJB’s right to freedom of movement and right to privacy. [...]
VCAT Considers Relevance of Charter to Availability of Payments for Childcare from Transport Accident Commission Michelle Dawson v Transport Accident Commission [2010] VCAT 796 (13 May 2010) Facts Ms Dawson was seriously injured in a car accident on 13 October 2005. As a result of her injuries Ms Dawson received a number of therapies in [...]
Application of Charter to Planning Schemes, Decisions and Considerations Smith v Hobsons Bay City Council [2010] VCAT 668 (12 May 2010) A recent VCAT decision establishes that a planning scheme provision limiting views into existing secluded private open space and habitable room windows is not incompatible with the Charter. VCAT also held that a local [...]
What does Proper Consideration of Human Rights Entail? Director of Housing v Turcan [2010] VCAT Ref No R201011922 (Unpublished, 4 May 2010) The Victorian Civil and Administrative Tribunal has considered the meaning of ‘arbitrary’ and ‘unlawful’ in the context of s 13(a) of the Charter of Human Rights and Responsibilities Act 2006, as well as [...]
Eviction from Public Housing without Adequate Justification a Breach of Human Rights Justice Bell, sitting as President of the Victorian Civil and Administrative Tribunal, has held that the Director of Housing acted unlawfully under s 38(1) of the Charter in seeking, without adequate justification, to evict a refugee family from social housing in breach of [...]
Right to Freedom of Expression Incorporates Positive Right to Freedom of Information XYZ v Victoria Police [2010] VCAT 255 (16 March 2010) In a significant decision, Bell J has held that the right to freedom of expression under s 15(2) of the Victorian Charter ‘incorporates a positive right to obtain access to government-held documents’. His [...]
Temporary Exceptions and the Right to Equality and Non-Discrimination: Exemptions should be Subject to Ongoing Monitoring and Evaluation Wesley College (Anti-Discrimination Exemption) [2010] VCAT 247 (3 March 2010) In this case, VCAT considered an exemption application pursuant to s 83 of the Equal Opportunity Act 1995 by Wesley College. The exemption sought to enable Wesley [...]
Does the Creation of a Tenancy or the Making of a Possession Order Engage Human Rights? Heywood v Director of Housing [2010] R2009/36396 (4 January 2010) In this case, the Victorian Civil and Administrative Tribunal considered the application of provisions of the Residential Tenancies Act 1997 (Vic) which provide for the creation of a tenancy [...]
Freedom of Information and Security of Prisons Rogers v Chief Commissioner of Police [2009] VCAT 2526 (26 November 2009) In Rogers v Chief Commissioner of Police, VCAT held that CCTV footage and audio tape used for the investigation of an incident that occurred in the Banksia Unit of HM Barwon Prison were exempt from disclosure [...]
Equality and Exemptions: VCAT Denies Exemption for Women Only Travel Tours Travel Sisters (Anti-Discrimination Exemption) [2009] VCAT A189/2009 (17 November 2009) Facts In 2009, Erin Maitland applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) under s 83 of the Equal Opportunity Act 1995 (Vic) (‘EO Act’), for an exemption to allow her to operate [...]
Freedom of Information under the Victorian Charter McInnes v Vicroads (General) [2009] VCAT 2342 (4 November 2009) McInnes made an application under the Freedom of Information Act 1982 (Vic) (‘FOI Act’) to VicRoads for a copy of an anonymous letter that VicRoads had received warning that his health might impact on his driving. VicRoads asked [...]
Equality and Exemptions: Discrimination to Promote Gender Equality in Education Carey Baptist Grammar School Ltd (Anti-Discrimination Exemption) [2009] VCAT 2221 (23 October 2009) Carey Baptist Grammar School (‘Carey’) was also successful in its application to VCAT for an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’). VCAT renewed Carey’s exemption to enable it [...]
The Meaning of ‘Public Authority’ and the Application of the Charter to Non-Government Bodies Metro West v Sudi [2009] VCAT 2025 (9 October 2009) The Victorian Civil and Administrative Tribunal has held that a non-profit housing agency is a ‘public authority’ under section 4(c) of the Victorian Charter of Human Rights and Responsibilities Act 2006 [...]
Equality and Exemptions: Discrimination on the Grounds of Political Activity Victorian Electoral Commission (Anti-Discrimination Exemption) [2009] VCAT 2191 (30 September 2009) VCAT has granted the Victorian Electoral Commission (‘VEC’) an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) to enable the VEC to take into account certain political activities of a person when [...]
Age Discrimination and Equal Opportunity Exemptions under the Victorian Charter Lifestyle Communities Ltd (No 3) (Anti-discrimination) [2009] VCAT 1869 (22 September 2009) In September 2009, VCAT President Justice Kevin Bell dismissed an application by Lifestyle Communities Ltd for an exemption under the Equal Opportunity Act 1995 (Vic) (‘EOA’). In making the orders, Bell P extensively [...]
Freedom of Information and the Public Interest McIntosh v Victoria Police [2009] VCAT 1868 (16 September 2009) In this case, Bell J held that the Freedom of Information Act 1982 (Vic) should be interpreted consistently with the s 15 of the Charter, which recognises that the right to seek, receive and impart information is an [...]
The Disability Act and the Right to Housing Conroy v Yooralla Society of Victoria [2009] VCAT 1873 (7 September 2009) The Applicant, Mr Conroy had a physical disability and had lived in a community residential unit operated by the Respondent (Yooralla Society of Victoria) for 12 years before receiving two notices to vacate under the [...]
Freedom of Information, Freedom of Expression and the Charter Smeaton v Victorian WorkCover Authority [2009] VCAT 1195 (5 August 2009) The Applicant sought review of a decision by the Victorian WorkCover Authority to transfer documents that were the subject of a Freedom of Information request by the Applicant to the Ombudsman. The effect of the [...]
Equal Opportunity Exemptions and Special Measures under the Charter Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009) The Victorian Civil and Administrative Tribunal has again granted a swimming pool operator a temporary exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) to enable it to conduct women-only swimming [...]
Supervised Treatment and Limitations on the Rights of Persons with Disability under the Charter AC (Guardianship) [2009] VCAT 1186 (8 July 2009) This case concerns AC, a 26 year old man with a mild intellectual disability who has been living at Sandhurst since 2000. Due to a history of assaultive and sexualised behaviours, AC was [...]
Right to Privacy and Unlawfulness of Eviction into Homelessness Homeground Services v Mohamed (Residential Tenancies) [2009] VCAT 1131 (6 July 2009) The Victorian Civil and Administrative Tribunal (‘VCAT’) has held that a non-profit welfare agency acted unlawfully pursuant to s 38(1) of the Victorian Charter in seeking to evict a young tenant from transitional housing [...]
Application of the Charter in Planning Disputes Swancom Pty Ltd v Yarra CC [2009] VCAT 923 (10 June 2009) On 10 June 2009, Deputy President Dwyer and Member Bensz of the Victorian Civil and Administrative Tribunal handed down a decision which discussed the application of the Charter of Human Rights and Responsibilities Act 2006 to [...]
Referral of Question of Law under Victorian Charter De Simone v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2009] VCAT 888 (13 May 2009) For the first time, VCAT has referred a question of law arising under the Charter for determination by the Supreme Court, by way of s 33 of the [...]
Right to Equality and Exemptions under the Equal Opportunity Act YMCA – Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009) This case explores the relationship between human rights and equal opportunity legislation. It was decided by VCAT that the YMCA should be granted a temporary exemption from the Equal Opportunity Act [...]
Failure to Review Involuntary Treatment a Breach of Human Rights Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009) On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a significant decision which discussed in detail important aspects of the application and operation of the Charter. [...]
Balancing Open Justice, the Right to Privacy and Freedom of Expression XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009) The Victorian Civil and Administrative Tribunal has confirmed that society’s interests in an individual’s rehabilitation can override the principle of ‘Open Justice’ and the right to freedom of [...]
Self-Represented Litigants and the Right to a Fair Hearing Davies v Commonwealth Bank of Australia Ltd (Credit) [2009] VCAT 90 (28 January 2009) This case considered the correct approach to be followed in dealing with unrepresented litigants and balancing their rights to a fair trial and access to justice with defendants’ rights. Facts Unrepresented applicants [...]
In this case, VCAT found that the Charter rights to a fair hearing (s 24) and the rights in criminal proceedings (s 25) do not extend to persons who are being investigated by police for possible commission of a criminal offence. Detailed case note.
In a recent VCAT decision, Harbison J has confirmed that the limitations provision of the Charter now defines the parameters of VCAT’s power to grant an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) under s 83 of the EO Act. Detailed case note.
The Residential Tenancies List of the Victorian Civil and Administrative Tribunal rejected submissions that making a compliance order against a tenant would be contrary to the Charter. Member Nihill considered that the proceedings did engage the s 13 Charter ‘privacy’ right however considered the compliance procedure to be a reasonable limitation under s 7 of [...]
In overturning a decision by the Director of Public Transport to refuse to grant XFJ, the applicant, accreditation to drive commercial taxi vehicles under the Transport Act 1983 (Act) , VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights. Detailed case note.
This case raises issues in relation to the scope of human rights and the contradictions which will necessarily exist between statutory provisions such as s 191 of the Disability Act and the Charter. It is ultimately the case that decisions made under many of these provisions will be considered under the test for demonstrably justified [...]
VCAT has granted a restricted exemption from employment-related provisions of the Equal Opportunity Act 1995 (Vic) to a defence-related contractor, allowing the contractor to discriminate against its employees on the basis of nationality. Detailed case note.
VCAT has imposed a supervised treatment order on a man with an intellectual disability, requiring him to be kept in detention to ensure his compliance with a treatment plan – despite his willingness to consent to the plan – to reduce the risk that he could cause harm to others. The Tribunal referred to, but [...]
In this case, VCAT considered that the rights to privacy and family, and to protection of children and the family unit, were relevant to determining whether an application for an order of possession by the Director of Housing should be granted as against a single mother of four children. Detailed case note.
This was a case regarding an application for permits to subdivide land and construct various buildings ancillary to a freeway which would involve the removal of native vegetation to the detriment of the Growling Grass Frog. During the hearing of the merits, a challenge was made to VCAT’s jurisdiction to hear the matter and submissions [...]
The Victorian Civil and Administrative Tribunal has held that a government authority’s refusal to issue a commercial driver’s licence on the basis of the applicant’s history of insurance fraud did not engage the applicant’s right to freedom from double punishment under s 26 of the Victorian Charter. However, on the facts, the applicant was nevertheless [...]
In a decision regarding the review of an involuntary treatment order under the Mental Health Act 1986 (Vic), VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights. Detailed case note.
In this recent decision of the Victorian Civil and Administrative Tribunal, s 32(1) of the Charter was used to reject the previous interpretation of certain sections of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Detailed case note.
The Victorian Civil and Administrative Tribunal has allowed an application to reconstitute the Tribunal, on the basis that a respondent to the proceedings would not receive a fair hearing before a particular Tribunal Member. The Tribunal’s decision stated that the Charter has reinforced the positive duty of courts and tribunals to provide assistance to litigants [...]
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