P J B v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327 (19 July 2011)

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

Canberra Fathers and Children Services Inc v Michael Watson [2010] ACAT 74 (29 October 2010)

The ACT Civil and Administrative Tribunal has found that an eviction from social housing that would result in homelessness is a breach of the right to be free from unlawful or arbitrary interference with the home.

Facts

Canberra Fathers & Children Services Inc (‘CANFaCS’) provides crisis accommodation and support for fathers and their children.  CANFaCS provided crisis accommodation to Mr Watson and his three sons (then aged 13, 15 and 17) under an occupancy agreement in June 2007.

Since being provided with this accommodation, Mr Watson had attempted to find alternate accommodation, but he was unable to obtain private rental accommodation due to his family situation and income level.  If he was evicted from the premises he and his family would again be homeless.  Mr Watson was employed full time and his sons were receiving Centrelink benefits.  Mr Watson had, with the assistance of CANFaCS, applied for public housing and had been assessed as eligible in mid 2007, but by late 2008 he was no longer eligible for early allocation of housing because the household income was above the threshold.  As a result, Mr Watson was on the standard waiting list, and would not receive an offer of housing for a year or more.  Largely because of this, Mr Watson remained in occupation of the premises and, in November 2009 CANFaCS wrote to Mr Watson requiring him to vacate the premises. This letter noted that:

• the premises are now needed for families experiencing housing difficulties;
• the decision to terminate was by way of exercising an option under the occupancy agreement; and
• there was a possibility of extending the notice period should Mr Watson not be able to find alternate accommodation.

CANFaCS applied to the ACT Civil and Administrative Tribunal for a termination and possession order.

Decision

On the threshold question of jurisdiction, ACAT is a public authority and is required to give proper consideration to any relevant human rights (see s 40 of the Human Rights Act 2004 (ACT)).  In this context, that obligation required ACAT to consider

the circumstances to determine whether any aspect of the conduct of CANFaCS, especially the giving of the notice to vacate, engages or enlivens any aspect of the human rights of Mr Watson, as set out in the Human Rights Act 2004.  If this is so, then the Tribunal will assess whether such conduct has adversely impacted on those rights, that is, whether CANFaCS, as a public authority, has acted in a way that is incompatible with a human right or failed to give proper consideration to a relevant human right in making a decision, and thus unlawfully.

ACAT found that the issuing of the notice was lawful under the relevant terms of the Residential Tenancies Act 1997 (ACT), so the question before it, was whether the issuing of the notice engaged and ‘adversely impacted’ Mr Watson’s human rights, including the right to the protection of the family and children (HRA s 11) and the right not to have one’s privacy, family, home or correspondence interfered with unlawfully or arbitrarily (HRA s 12).

In finding that these rights had been engaged, ACAT placed considerable weight on the evidence that Mr Watson and his family would likely become homeless, and considered that:

Disadvantaged people in need of social housing and at the risk of homelessness are among the most vulnerable in our society.  Their circumstances mean that their human rights are imperilled.  Where a public authority is making decisions about the housing of such people, the Human Rights Act requires the public authority to act in a manner that is compatible with human rights and to give proper consideration to human rights matters in making decisions.

ACAT then considered whether CANFaCS’s interference with the Watson family’s right to home had been ‘unlawful or arbitrary’.  In respect to the question of ‘unlawfulness’, ACAT noted that:

the question … is not answered by asserting lawfulness based on contract.  The Tribunal notes that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.  Thus, the exercise of a contractual right can be unlawful.

ACAT primarily considered whether CANFaCS’s actions were ‘arbitrary’, following the Victorian decision of Director of Housing v Sudi [2010] VCAT 328 and noting that:

The issue of arbitrariness is directed to substance and not form. The protection is from any interference that is random and arbitrary.  Interference will not be arbitrary if it is governed by clear pre-existing rules and by procedures that are predictable and foreseeable by those to whom they are applied.

In finding that CANFaCS had acted arbitrarily, ACAT placed considerable weight on CANFACS’s ‘Procedure and Procedures Manual Evictions’, which set out the circumstances in which tenants would be evicted, noting that ‘It is recognised that families stay at CANFaCS because they have no other options.  Evictions are therefore used as a last resort’.  The circumstances in the current case were not contemplated by the policy document, and so ACAT held that the decision to terminate Mr Watson’s occupancy of the premises was not based on clear pre-existing rules nor was the procedure in reaching that decision transparent, predictable and foreseeable.  It was therefore arbitrary.

ACAT then turned to whether the protection from arbitrary interference with home or family was, or could be, subject to limitations.  ACAT noted that the RTA contains provisions that allow the provider of crisis accommodation who wishes to limit the right to protection from interference with a home, to inform the tenant of the limitation; and to allow exercise of the right to terminate only if certain criteria are followed: ‘Such a scheme by setting out clear rules and procedures avoid arbitrary action’.  Thus, limitations are allowable, but ACAT also noted that they may be desirable from a policy perspective, ‘to allow an eviction from crisis accommodation where there is a potential conflict of the rights and needs of persons in need of support from crisis accommodation providers’.  As ACAT noted, ‘Certainly a family cannot remain in crisis accommodation indefinitely and a crisis accommodation provider should have the ability to terminate an agreement in appropriate circumstances’.

However, CANFaCS chose note to enter into a residential tenancy agreement and outline the limitation, so none of the terms or information supplied to Mr Watson referred to such matters and no such limitation existed.

ACAT concluded that CANAFCS serving a notice to vacate on Mr Watson constituted an interference with the family unit and arbitrary interference with a home which was not subject to appropriate limitations, and was therefore unlawful.  As a result of this unlawful act, ACAT had no jurisdiction to consider the application for a termination and possession order.

Relevance to the Victorian Charter

On the threshold question of jurisdiction, the ACT legislation makes clear that the ACAT is a public authority in all circumstances, whereas the Victorian equivalent is not a public authority when acting in a judicial capacity.  This question of jurisdiction remains live, and the Victorian Court of Appeal’s forthcoming judgment in the Sudi appeal will grant greater clarity on the jurisdiction point.  Certainly, it is desirable that public authorities’ actions are reviewable where, as in this case, they fail to act in accordance with their policies, let alone their obligations under human rights statutes.

The clear views of ACAT on the definition of ‘arbitrary’, assisted by reference to international  materials, further supports an increasing number of Victorian cases that support the use of international jurisprudence in interpreting human rights laws.

As in the Sudi decision, this case has clearly found that conduct that is made unlawful by the conduct provisions of comparable human rights legislation renders the action of public authorities null.  However, the case also illustrates that public authorities discharge their responsibilities in implementing and following processes and procedures that consider human rights, notwithstanding that individuals’ rights may be limited or even breached.  This does not require rigid application of policy documents but requires genuine consideration of individual’s circumstances.  ACAT suggests a proper approach to balancing the competing rights and policy considerations, and many public authorities could take heed.

The decision is at www.austlii.edu.au/au/cases/act/ACAT/2010/74.html.

James Farrell is Manager/Principal Lawyer of the PILCH Homeless Persons’ Legal Clinic

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 of claims made by Ms McAdams under the EO Act and the Charter.  

The decision also confirms that universities are likely to be public authorities for the purpose of the Charter and considers the operation of s 39, which relates to the bringing of legal proceedings.  

Facts

Ms McAdam completed a graduate diploma and a master’s degree with distinction at Victoria University.  In February 2008 she enrolled in the PhD program at Victoria University’s School of Psychology.  Her research project related to non-pharmacological approaches to the treatment of dementia. 

Professor Jill Astbury supervised Ms McAdam from February to August 2008.  Professor Astbury withdrew her supervision of Ms McAdam on 13 August 2008, prior to the completion of the pre-candidature process, because of ‘differences in [their] disciplinary perspectives, views on rigour in research and the need to develop methodological skills as an integral part of research training’.

The postgraduate committee subsequently considered Ms McAdam’s research proposal and sent her a report on 18 August 2008.  This report criticised the limited scope of the proposal and questioned the objectivity of the proposed evaluation method, and whether the project would deliver new knowledge.  Ms McAdam strongly disputed the committee’s report.  She claims that she was told that there were no qualified or available supervisors for her in the School of Psychology, and she was forced to seek a supervisor outside the School of Psychology.  Ms McAdam found a replacement supervisor in the School of Exercise and Sports Sciences, but was left without a supervisor when he retired in July 2009.

Ms McAdam says that she has a life-long learning disability, which the University has known of since 2005.  Ms McAdam claims that she has successfully developed strategies to overcome this disability. 

Ms McAdam claimed her treatment by Victoria University and various employees of Victoria University involved breaches of the EO Act and the Charter.  Among other breaches, Ms McAdam claimed that the treatment amounted to discrimination by an educational authority, contrary to s37 of the EO Act.  She claimed that this discrimination was based on impairment, sex (because she was treated worse than a male PhD student in similar circumstances), and philosophical belief and/or religious belief.

Ms McAdam also alleged that Victoria University breached her Charter rights to equality (s 8), freedom of religion, thought and belief (s 14), privacy (s 13), and freedom of expression (s 15).

Decision

Senior Member McKenzie held that Ms McAdam’s claims of sex and impairment discrimination – under both the EO Act and the Charter – were arguable, despite a lack of evidence.  Senior Member McKenzie noted that documentary evidence is rare in discrimination cases, and more often a discriminatory reason will be found as a matter of inference. 

However, Senior Member McKenzie considered Ms McAdam’s complaints of discrimination on the basis of philosophical or religious belief to be manifestly hopeless.  Ms McAdam alleged that Victoria University treated her less favourably because she believes in non-pharmacological therapies for the treatment of dementia, while the University believes in a biomedical model of treatment.  Ms McAdam claimed that this constituted discrimination on the basis of her philosophical and religious belief. 

Philosophical belief is not an attribute that is explicitly protected by the EO Act.  However, Ms McAdam argued that s 32 of the Charter requires a human rights compatible interpretation of the EO Act, which in turn requires that either philosophical belief be added to the list of protected attributes in s 6 of the EO Act, or that the attribute of religious belief or activity be interpreted to include philosophical belief.  Ms McAdam relied on the Charter rights to freedom of expression and freedom of thought, religion and belief in support of this argument.  Senior Member McKenzie did not agree with this argument, on the basis that it would involve ‘rewriting’ the EO Act, or broadening the attribute of religious belief or activity ‘in a way not contemplated by those words or the EO Act’. 

Ms McAdam also claimed that the same conduct constituted discrimination on the basis of a religious belief, because her philosophical support for non-pharmacological treatment stems from a belief system that is ‘partly sacred and partly secular in character’.  However, Senior Member McKenzie rejected this argument on the basis that ‘[t]he philosophical beliefs are the last link in a chain, the first link of which is a belief system, part of which includes religious beliefs.  This belief is neither directly based on religious beliefs or a characteristic of such beliefs.’  Therefore, the claim did not meet the test for discrimination under the EO Act, which requires that discrimination be ‘on the basis of the attribute itself,…or on the basis of a characteristic that a person with the attribute generally has.’

Similarly, Senior Member McKenzie did not consider the conduct to engage Ms McAdam’s right to freedom of religion under s 14 of the Charter.  However, Senior Member McKenzie held that it is arguable that opposing academic views of beliefs engage freedom of thought and belief, and freedom of expression.  As a result, Ms McAdam’s Charter claims relating to freedom of thought and belief, and freedom of expression and to hold an opinion, survived.  Victoria University did not make any submissions about Ms McAdam’s right to privacy, so this claim also survived.

Senior Member McKenzie held that it is arguable that the University is a public authority, and that it breached its obligation to act compatibly with Charter rights, under s 38.

Ms McAdam was allowed to raise the Charter before VCAT, even though she did not directly raise the Charter in her initial complaint to the Victorian Equal Opportunity and Human Rights Commission.  Senior Member McKenzie held that:

While s 39 does not confer an independent right of action, if there is on foot a proceeding claiming that some act or decision of a public authority is unlawful, that act or decision may also be challenged as unlawful because of the Charter…In my view, the use of the words ‘must not’ in the prohibitions of the EO Act mean that it was parliament’s intention that relevant prohibited conduct was unlawful, at least in terms of the EO Act.  Section 39 applies to the surviving Charter claims.  That section does not impose a time limit as to when the person may add Charter-related unlawfulness to the proceeding.  

The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/1429.html

Melanie Schleiger is a Senior Lawyer in the Human Rights & Civil Law Service, Victoria Legal Aid, and a Board member of the Human Rights Law Resource Centre

Sagen v Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522 (20 November 2009)

The British Columbian Court of Appeal has confirmed that the Canadian Charter of Human Rights and Freedoms does not apply to non-governmental entities or activities.  The Court also held that the Charter right to equal benefit of the law does not apply in respect of benefits that are created by a private entity that is not acting as an agent of the Crown.

Facts 

A group of highly ranked female ski jumpers (‘Applicants’) sought to challenge the failure of the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (‘VANOC’) to include women’s ski jumping in the 2010 Winter Olympics. 

The program for the Winter Olympics is set by the International Olympic Committee (‘IOC’).  Women’s ski jumping was not included in the 2010 games by the IOC on the recommendation of the Olympic Programme Committee, which found that the development of the sport is still in an early stage and is ‘thus lacking the international spread of participation and technical standard required for an event to be included in the programme’.

The Applicants sought a declaration that if VANOC organises, finances and stages ski jump events for men in the 2010 Winter Olympics, a failure to plan, organise, finance and stage a ski jump event for women violates their equality rights as guaranteed by s15(1) of the Charter.  Section 15(1) provides that:

Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Decision

The key issue in the appeal was whether the Charter applies to VANOC in respect of the selection of events to be staged at the Winter Olympics.  Section 32(1) of the Charter provides that the Charter applies to Parliament and the government of Canada and to the legislature and government of each province in respect of all matters within the authority of those bodies.  The Court of Appeal followed the test for determining the applicability of the Charter to an entity’s activities as set out in Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31.  This test provides that the Charter applies where the entity is ‘government’ by its very nature or because the government exercises substantial control over it, or where the entity performs ‘governmental activities’, being activities that are governmental in nature.

The parties agreed that VANOC is not a government entity, so the key question was whether the activities undertaken by VANOC are ‘governmental activities’ that are subject to the Charter.  The Court of Appeal held that, when determining this question, it is necessary to consider the ‘nature or function of the specific act or decision of the entity that is said to infringe a Charter right’, as well as the general activities or functions of the entity.  As a result, the Court went further than considering the function of hosting and staging the games, and considered specifically whether selecting events for the games was a governmental function or obligation.  The Court held that this function was not a ‘policy’ choice or governmental activity.  In arriving at this decision, the Court placed much weight on VANOC’s lack of authority to set the program for the Winter Olympics within the IOC framework, implicitly accepting that VANOC also lacked responsibility for setting the Games program.

The Court of Appeal rejected the Appellants’ claim of discrimination on the basis that the Charter did not apply to the decision not to include a women’s ski jumping event in the 2010 Games.  Nonetheless, the Court continued to consider and dismiss the Appellants’ contention that this decision denied them the equal benefit of the law, as guaranteed by s 15(1).

The Appellants’ greatest challenge was to demonstrate that the unequal benefit (the availability of men’s jumping, but not women’s) was a product in some way of the ‘law’.  The Court held that for the purposes of s 15(1) of the Charter, an action or provision will typically be considered ‘law’ only if its validity derives from statutory authority or in some instances from the ordinary powers of the Crown.  The Court held that in this instance, VANOC

…is a private corporation with the powers of an ordinary person.  It is not an agent of the Crown.  It has no authority to undertake its duties under the Host City Contract without the need for additional powers delegated by the Crown. 

The Court further commented that this was not the case of a governmental body attempting to circumvent the Charter by exercising its power through contract instead of legislation.  Rather this is a case in which a non governmental body is brought before the court as a result of policies which neither it nor any Canadian authority had the power to change.  As a result the Court held that even if the Charter applied to VANOC in respect of the impugned conduct, the Appellants’ claims under s 15(1) could not succeed because the availability of ski jumping events at the 2010 Games is simply not a ‘benefit of the law’ for purposes of s 15(1).

Relevance to the Victorian Charter 

Section 6 of the Victorian Charter provides that the Charter applies to certain functions of Parliament, courts and tribunals and to public authorities, including entities that have functions of a public nature when exercising those functions on behalf of the State or a public authority.  The scope of the Charter’s application could be significantly curtailed by adopting the approach of the Court of Appeal in this case, particularly the deference shown to the rules of international organisations such as the IOC.

In similar terms to s 15(1) of the Canadian Charter, s 8(3) of the Victorian Charter protects the right to equality before the law and equal protection of the law without discrimination.  Section 8(2) of the Victorian Charter further protects the right to enjoyment of human rights without discrimination.  It is therefore possible that the decision not to include a women’s ski jumping event would be considered discriminatory under s 8(3) of the Victorian Charter.  

The decision is available at http://www.canlii.org/en/bc/bcca/doc/2009/2009bcca522/2009bcca522.html. 

Melanie Schleiger is a lawyer with Lander & Rogers.  Jack Haldane is a law student at Deakin University. 

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 (Vic). 

Justice Bell’s decision provides a detailed discussion of the considerations relevant to determining whether a non-governmental agency is required to comply with the Charter.  Importantly for those who advocate on behalf of people at risk of homelessness, the decision also recognises that ‘[d]isadvantaged people in need of social housing and at risk of homelessness are among the most vulnerable in the community.  Their human rights are imperilled by their circumstances.’

Facts

Metro West Housing Services Limited is a provider of transitional housing to those at risk of homelessness in the western suburbs of Melbourne.  Although a private company, its primary function regarding the allocation and management of housing stocks is governed by a service agreement with the Victorian Government.  Metro West receives government funding to provide these services and exercises delegated statutory powers under s 35 of the Housing Act 1983 on behalf of the government, allowing it to lease, sub-lease, acquire and dispose of property.

Metro West had introduced a policy of automatically issuing notices to vacate to its tenants at the beginning of their tenancy, and regularly throughout the tenancy, in order to ensure that the tenants did not overstay.  They sought to rely upon one of these automatic notices in applying for orders for possession against both Sudi and Hailu families.

Both the Sudi and Hailu families argued that Metro West was a public authority under the Charter, and was therefore not entitled to give the notice to vacate or make an application for possession because in doing so its actions were incompatible with their human rights protected under the Charter.

Whilst Metro West initially argued that it was not a ‘public authority’ as defined in the Charter, it later conceded this point and withdrew the notices to vacate.  The tenants therefore requested that Bell J make a formal declaration on the question of whether Metro West was a ‘public authority’.

Decision

In his decision, Bell J compared and distinguished at some length the comparative legislation and jurisprudence regarding functional public authorities in the UK, New Zealand and Canada. 

Significantly, Bell J endorsed the reasoning of Lord Bingham and Baroness Hale in their dissenting judgements in the UK decision of YL v Birmingham City Council [2008] 1 AC 95.  Consistently with those judgments, Bell J emphasised frequently throughout his decision that ‘[t]he definition of ‘public authority’ in s 4 must be given a wide and generous interpretation which is consistent with [the central purpose of the Charter to protect and promote human rights]” 

Bell J also made some useful observations regarding the policy rationale for the application of the Charter to public authorities, in the following terms:

The state cannot shirk its human rights responsibilities by implementing its programs and policies through private entities acting on its behalf.  Where private entities exercise public functions of a public nature on behalf of the State or a public authority, the functions come with unavoidable human rights responsibilities for the entity itself.

Bell J cautioned that the matter of determining whether an entity is exercising a ‘public function’ should be ‘approached as a matter of substance and not form or legal technicality’ and that ‘each case must be considered on its own facts and merits’.

In light of this, Bell J determined that the provision of social housing is a public function which the government exercises on behalf of the community in the public interest.  Together with the provision of public funding to various groups who exercise this function, Bell J held that this would be sufficient to characterise the functions exercised by Metro West as being of a public nature.

In addition, Bell J found that the statutory foundation of housing policies and programs contributed to the finding that Metro West carried out ‘public functions’.  Importantly, Bell J confirmed that relationships between entities and the government characterised by s 4(1)(c) do not need to be characterised or capable of being characterised in formal legal terms – it ‘covers relationships which may be looser than contract, agency and other legal categories…It covers arrangements under which the entity is acting as [the state’s] representative or for [the states’s] purposes in the practical sense’.

Notwithstanding s 4(5) of the Charter, Bell J noted that the provision of public funding can indicate both that the functions are of a public nature, and that the entity in question acts on behalf of the State or a public authority when exercising those functions.

The application of s 4(1)(c) requires the answer to two questions, which Bell J addressed in the following manner.

Are the functions being exercised of a public nature?

His Honour held that this question turns upon the nature of the functions and whether they are being exercised in the public interest, rather than the nature of the entity exercising those functions.  In finding that the functions exercised by Metro West in providing transitional housing services (including managing tenancies) were of a public nature, Bell J found that it was relevant to consider the responsibility which government has for the care and protection of vulnerable and disadvantaged people, especially those who are at risk of homelessness.

Are the functions being exercised on behalf of the State or a public authority?

His Honour held that this question requires an analysis of the relationship between the State (or public authority) and the entity in question.  Of particular relevance will be whether there is some arrangement under which the entity, in exercising the functions, is acting as their representative or for their purposes in the practical sense.  In considering the operations of Metro West, Bell J held that Metro West exercised the relevant functions on behalf of the State as a result of the following factors:

• there was a service agreement between Metro West and the government where the government contracted out the performance of its obligations;
• that service agreement included performance standards and obligations upon Metro West to comply with the government’s standards and policies in providing the services;
• Metro West received ‘block’ funding from the government to perform these services; and
• Metro West exercised delegated statutory functions.

For these reasons, Bell J made a declaration that when exercising the function of providing transitional housing (including the management of tenancies) under the service agreement with the government, Metro West is a public authority under s 4(1)(c) of the Charter.

Conclusion

Whilst the outcome of Bell J’s decision was not unexpected given the facts of the case, the decision is significant in the depth of analysis and reasoning regarding the application of s 4(1)(c) of the Charter.  Importantly, Bell J has clearly set out the manner in which the question of whether a particular entity is a public authority under the Charter will be approached.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/2025.html. 

Hayley Parkes, Human Rights Law Group, Mallesons Stephen Jaques

Joseph v City of Johanesburg [2009] ZACC 30 (9 October 2009)

The Constitutional Court of South Africa has held that government-owned electricity service providers have an obligation to accord procedural fairness to tenants receiving electricity before disconnecting supply.

Facts

The applicants were tenants in a block of apartments.  City Power, the relevant government-owned service provider, entered into a contract with the landlord to supply electricity to this block.  Over time, the tenants paid their electricity bills to the landlord, but he failed to pass on the payments to City Power.  Accordingly, on 8 July 2008, City Power disconnected the electricity supply to the block without giving the tenants any prior notice of its intention to do so.  The applicants challenged City Power’s actions on the basis that City Power had a duty to accord the tenants procedural fairness in the form of notice and an opportunity to make representations before disconnection.

Decision

Background

The Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) gives effect to the right to ‘lawful, reasonable and procedurally fair’ administrative action under s 33 of the South African Bill of Rights.  Section 3(1) of the PAJA provides that ‘[a]dministrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.’  The High Court found that s 3(1) was not engaged because terminating supply had not affected any right of the applicants.  In particular, it was the landlord and not the tenants that had entered into the supply agreement with City Power.

Skweyiya J, writing for the unanimous Constitutional Court, disagreed.  His Honour held that the termination of supply was an (i) administrative action that (ii) materially and adversely affected (iii) rights of the applicants.  Accordingly, City Power was obliged to accord the applicants procedural fairness.  Since no notice was given to the tenants, the decision to disconnect supply was held to be unlawful, and City Power was ordered to reconnect the supply of electricity.

This case note focuses on two issues: whether any rights of the applicants were affected by the decision to terminate supply for the purposes of s 3(1) PAJA, and the content of procedural fairness if s 3(1) is engaged.

Right to receive electricity

The key issue was whether disconnecting the electricity supply affected any rights of the applicants, as no legitimate expectation was claimed.  This turned on ‘whether the broad constitutional relationship that exists between a public service provider and the members of the local community gives rise to rights’ for the purpose of PAJA s 3.  Skweyiya J found that the applicants could be said to have a ‘right’ to receive electricity for the purpose of the PAJA.

His Honour noted that the ‘provision of basic municipal services is a cardinal function, if not the most important function, of every municipal government.’  Constitutional and statutory provisions impose a duty on local governments to provide services including electricity.  There is thus a ‘correlative public law right’ to receive those services.  Such ‘legal entitlements that have their basis in the constitutional and statutory obligations of government’ constitute ‘rights’ for the purpose of s 3 PAJA.  His Honour observed: ‘In depriving [the applicants] of a service which they were already receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right.’

Content of procedural fairness

Skweyiya J held that procedural fairness required adequate pre-termination notice, containing ‘all relevant information, including the date and time of the proposed disconnection, and the place at which the affected parties can challenge the basis of the proposed disconnection.  Moreover, it must afford the applicants sufficient time to make any necessary enquiries and investigations, to seek legal advice and to organise themselves collectively if they so wish.  At a minimum, it seems to me that 14 days’ pre-termination notice is fair’.  Procedural fairness did not require City Power to process representations in every case.  Rather, tenants must be able to challenge a proposed termination and tender payment of arrears.  Where a valid ground of challenge has been raised, City Power would be expected not to disconnect the supply of electricity.

Relevance to the Victorian Charter

This decision has potentially significant implications for the obligations of essential service providers in Victoria. 

Although the electricity sector in Victoria is privatised (in contrast to the State-owned supplier in Joseph), it is likely that Victorian electricity service providers would nevertheless be bound by the Victorian Charter as ‘functional public authorities’ under s 4(1)(c).  As such, they are likely to be legally required to act compatibly with human rights and give proper consideration to human rights in decision making processes (s 38(1)). 

Moreover, although the Victorian Charter does not directly enshrine social or economic rights (in contrast to the South African Bill of Rights), there are a number of civil and political rights with social and economic dimensions that may engage the supply of electricity, including the right to privacy, family and the home (s 13). 

The decision is available at http://www.constitutionalcourt.org.za/site/Joseph.htm.

Chris Tran, Summer Clerk, Mallesons Stephen Jaques Human Rights Law Group

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 in accordance with a ‘youth tenancy policy’ in circumstances in which it was likely that the tenant would thereby become homeless. 

Facts

The landlord, Homeground Services, is a non-profit welfare agency that has contracted with the Director of Housing to provide transitional housing to indigent tenants. 

The tenant, Abdi Mohamed, is 21 years old and commenced his tenancy with Homeground on 23 November 2007.  He is supported in his tenancy by Southern Direction Youth Services (‘SDYS’), which has a protocol with Homeground pursuant to which SDYS nominates and supports prospective tenants and Homeground provides transitional housing for the tenants so nominated.

Homeground has a policy with respect to ‘youth tenancy’ (tenants under 24 years of age), which relevantly provides that:

• The tenant must have an ‘exit strategy’ (that is, a long term housing plan) in place within 14 months of the commencement of the tenancy. 
• If the tenant is approved for public housing by the Director of Housing within 14 months, the tenant may continue in transitional housing until the public housing becomes available. 
• If the tenant’s ‘housing exit’ is into private housing, the tenant may stay in the transitional housing for a maximum of 18 months from the commencement of the tenancy.  A 120 day notice to vacate pursuant to s 263 of the Residential Tenancies Act 1997 (Vic) (‘RTA’) is given to the tenant at the 14 month mark, effectively giving the tenant another four months’ occupation of the rented premises.  Thereafter, an application for possession is made to VCAT.

In the present case, SDYS did not apply on the tenant’s behalf for public housing and the tenant is unable, on his Newstart allowance, to afford private housing.

In accordance with its policy, Homeground gave the tenant a 120 day notice to vacate, pursuant to s 263 of the Act, on 5 February 2009 for vacation by 10 June 2009 and subsequently applied to VCAT for a possession order on 17 June 2009.  

The evidence in the case established that:

• The tenant is conscientious in his payments of rent, and maintained the premises appropriately. 
• The tenant had complied with all reasonable policies and requests from Homeground and SDYS.
• The likely effect of obtaining a possession order would be to make the tenant homeless (through, on the evidence, no wrong-doing or fault on his part), and to give a home to a person who is currently homeless.

There was no evidence that, prior to issuing a notice to vacate, Homeground considered the reasonableness of that decision, or the reasonableness of the implementation of its ‘youth tenancy’ policy in the circumstances of this case.

Decision

VCAT held that the Director of Housing is a public authority pursuant to s 4(1)(b) and/or s 4(1)(c) of the Victorian Charter and, further, that Homeground is also a public authority, being ‘an entity whose functions are or include functions of public nature, when it is exercising those functions on behalf of the State or a public authority [the Director of Housing] (whether under contract or otherwise)’. 

As a public authority, it is unlawful, pursuant to s 38(1) of the Charter, for Homeground ‘to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.’

VCAT held that the termination of a tenancy prima facie engages s 13(a) of the Charter, which provides that ‘a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.  The Member noted that, in this section, the term ‘arbitrarily’ is to be understood as being distinct from ‘unlawfully’, and refers to something being ‘dependent upon will or pleasure’, ‘based upon mere opinion or preference as opposed to the real nature of things’ or ‘discretionary, not fixed’.  The Member further held that, on the evidence, ‘the implementation of the landlord’s “youth tenancy” policy in the circumstances of this case was arbitrary, for the purposes of s 13(a) of the Charter’. 

While not explicitly considering s 7(2) of the Charter, which permits reasonable limitations on human rights, the Member did consider the argument that the policy is not arbitrary in that it ‘reflects a need to achieve broader aims, that is, to maintain the landlord’s ability to provide transitional housing for indigent people who require it’.  Rejecting this argument, the Member found that there was no evidence that transitional housing arrangements would be undermined in the absence of a strict policy such as that applied by Homeground, noting that ‘a tenant who otherwise abides by the landlord’s housing policies, and who maintains their tenancy in accordance with the provisions of the Residential Tenancies Act may, if they have been approved within the relevant time by the Director of Housing for public housing, continue in transitional housing until the public housing becomes available, regardless of how long that takes (and that in such cases, it may take years for the public housing to become available)’.

Having regard to the above, VCAT held that:

• As a public authority, Homeground must comply with s 38(1) of the Charter.
• By giving a notice to vacate pursuant to s 263 of the RTA, in the circumstances of this case, Homeground acted in a way that was incompatible with the right to privacy in s 13(a) of the Charter and, furthermore, or in the alternative, failed to give proper consideration to a relevant human right, both contrary to s 38(1) of the Charter and therefore unlawful. 
• Accordingly, in the terms of s 330(1) of the RTA, Homeground was not ‘entitled to give the notice’ given under s 263. 

By consequence, the application for an order for possession was refused.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/1131.html. 

Phil Lynch is Director of the Human Rights Law Resource Centre

London & Quadrant Housing Trust v Weaver, R (On the application of) [2009] EWCA Civ 587 (18 June 2009)

A recent decision of the Court of Appeal has revisited the vexed issue of the definition of ‘public authority’.  The decision warrants attention for a number of reasons.  First, the decision acts as clear authority that a social landlord is a pubic authority, and that the act of terminating the tenancy of a tenant is not a private act and is therefore susceptible to judicial review under the Human Rights Act 1998 (UK) (‘HRA’).  Second, the decision highlights the need for clear legislative guidance on what constitutes a ‘public authority’.  This is discussed further below. 

Facts

The decision arose out of a judicial review proceeding brought by Susan Weaver against the London & Quadrant Housing Trust (the ‘Trust’).  The Trust is a registered social landlord (‘RSL’).  In order to understand the background and implications of the decision, it is necessary to have a basic understanding of the role of RSLs in the provision of social housing.  In England and Wales, approximately one half of all social housing is provided by RSLs.  RSLs are regulated in various ways by the Housing Corporation; an executive non-departmental public body, which is responsible for ensuring that an RSL is properly managed.  The Housing Corporation provides detailed guidance on a number of matters (including, for example, evictions).  RSLs typically receive grants from the Housing Corporation in respect of expenditure incurred in connection with their housing functions.

The Trust sought to evict Mrs Weaver, after she was more than eight weeks in arrears.  Mrs Weaver challenged the notice of possession on the basis that the Trust had acted in breach of a legitimate expectation arising out of Guidance issued by the Housing Corporation in respect of evictions.  She also argued that her eviction amounted to a violation of her rights under art 8 of the European Convention of Human Rights (which enshrines the right to respect for private and family life), however her argument was advanced in such a way that this claim also depended on establishing a legitimate expectation. 

The Divisional Court held that there had been no legitimate expectation created, and the claim therefore failed on both grounds.  Notwithstanding that it was unnecessary for it to do so, the Court went on to state that the Trust was a public authority under s 6(3)(b) of the HRA, and that the act of terminating the tenancy was not a private act under s 6(5) of the HRA.  The Trust, although successful in defending the particular application, appealed on this point.

A note on the decision of the Divisional Court is available at http://www.hrlrc.org.au/year/2008/r-weaver-v-london-and-quadrant-housing-trust-2008-ewhc-1377-admin-24-june-2008/. 

Decision

Lord Justice Ellias (Lord Collins concurring; Rix LJ dissenting) held that the Trust was a hybrid public authority, and considered that the act of eviction did not constitute a private act.  The act of eviction by the Trust was therefore amenable to judicial review.

In reaching the decision, Ellias LJ referred to the decisions in YL v Birmingham City Council [2008] 1 AC 95 and Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546.  His Lordship was critical of the Divisional Court’s focus on the question of whether or not the Trust was a public authority (and he considered that this had been conceded), and felt that the focus of consideration should have been on whether or not the act of terminating the tenancy is a private act.  However, his Lordship considered (at [66]) that ‘[w]hen considering how to characterise the nature of the act, it is in my view important to focus on the context in which the act occurs; the act cannot be considered in isolation simply asking whether it involves the exercise of a private law power or not’. 

The Court took into account the fact that the Trust was significantly reliant on public finance, operates in ‘close harmony’ with local government, and could properly be regarded as a ‘government function’.  The Court also took into account the fact that the Trust was ostensibly acting in the public interest and had charitable objectives and was subject to regulations designed to render its activities more transparent. 

The Court considered that the act of termination was ‘part and parcel’ of determining who should be allowed to take advantage of this public benefit.  It rejected the submission of the Trust that because it involves a contractual power, it is to be characterised solely as a private act.  On this point, Ellias LJ stated:

This is not an act which is purely incidental or supplementary to the principal function, such as contracting out the cleaning of the windows of the Trust’s properties.  That could readily be seen as a private function of a kind carried on by both public and private bodies. 

His Honour further noted,

In my opinion, if an act were necessarily a private act because it involved the exercise of rights conferred by private law, that would significantly undermine the protection which Parliament intended to afford to potential victims of hybrid authorities.  Public bodies necessarily fulfill their functions by entering into contractual arrangements.  It would severely limit the significance of identifying certain bodies as hybrid authorities if the fact that the act under consideration was a contractual act meant that it was a private act falling within section 6(5).

The appeal was accordingly dismissed.

Relevance to the Victorian Charter and Lessons for Australia

This decision highlights the difficulties that have arisen in the United Kingdom as a result of the absence of a clear definition of a ‘public authority’ in the HRA.  Largely in response to these difficulties, the Victorian Charter adopted a more prescriptive definition of a ‘public authority’.  Section 4 of the Charter contains a more comprehensive definition of ‘public authority’ which, in broad terms, is broken into two categories: core public authorities, and functional public authorities. 

The Explanatory Memorandum to the Victorian Charter states that the inclusion of functional public authorities: ‘…reflects the reality that modern government utilise diverse organisational arrangements to manage and deliver government services.  The Victorian Charter applies to ‘downstream’ entities, when they are performing functions of a public nature of another public authority’.  In the Second Reading Speech to the Bill, the Minister stated that ‘… the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature’.  In contrast to the HRA, s 4(2) of the Charter sets out a list of factors that may be taking into account in ascertaining whether or not a function is of a public nature.

The decision in Weaver provides a clear illustration of the advantage of the Victorian approach to the understanding of what constitutes a public authority.  The provision of a non-exhaustive list of factors that a court can take into account is clearly preferable to ambiguous reference to entities performing ‘functions of a public nature’, as reflected in s 6 of the HRA.  Recent amendments to the ACT Human Rights Act 2004 further clarify the definition of ‘public authority’ by specifying certain functions that ‘are taken to be of a public nature’, such as health, education, housing, gas, electricity and water supply. 

This guidance remedies a number (although not all) of the interpretative ambiguities inherent in the HRA.  In the event that Australia adopts a legislative human rights instrument, the ACT and Victorian approaches to the definition of a ‘public authority’ should be preferred.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/587.html. 

Jason Pobjoy is reading for the Bachelor of Civil Law at the University of Oxford.  He will commence a PhD in international refugee law at the University of Cambridge in October 2009. 

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. 

Facts

The case concerned the compulsory medical treatment of a man, Mr Kracke, without his consent, and without this treatment having been reviewed by the Mental Health Review Board as required by the Mental Health Act 1986 (Vic). 

The Mental Health Act establishes a regime for ‘involuntary treatment orders’ (‘ITOs’) and ‘community treatment orders’ (‘CTOs’), and prescribes time limits within which such orders (which are made by an authorised psychiatrist) ‘must’ be reviewed by the Board.  ITOs must be reviewed within 12 months.  CTOs must be reviewed within 8 weeks.  In Mr Krake’s case, the ITO was not reviewed for over two years and the CTO was not reviewed for over one year.  However the Act is silent as to the consequences of a failure to review the order within the time limits specified.  Mr Kracke submitted that the Board’s failure to complete the necessary reviews meant that the orders became invalid.  

Because the application was in many respects a test case, the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission exercised their rights of intervention under ss 34(1) and 40(1) of the Charter.  Leave was also given to the Human Rights Law Resource Centre to appear as amicus curiae and to the Secretary to the Department of Human Services to intervene as the contradictor.

Decision

Interpreting and Applying the Charter

Justice Bell commenced the decision by setting out the proper approach to interpretation and application of the Charter, which he referred to as ‘historic legislation’ which seeks to ‘enhance our system of government by protecting and promoting those human rights which are fundamental to the rule of law in a democratic society’.  Having regard to this, Bell endorsed the following principles of human rights interpretation:

• the Charter should be interpreted generously to give individuals the ‘full measure of the fundamental rights and freedoms referred to’; and
• the Charter should be interpreted as a ‘living instrument’, capable of growth and expansion, and applied in the context and in the light of present day conditions.

He held that the scheme of the Charter must be interpreted as a whole and that there are four broad steps to be followed when applying the Charter in cases such as the present:

• Engagement: Does the legislation limit human rights, having regard to its interpretation using standard interpretation principles and the scope of the human rights?
• Justification and proportionality: If legislation does limit human rights, is the limitation proportionate and justified under the general limitations provision in s 7(2)?
• Reinterpretation: If the limitation is not justified, is it possible to interpret the legislation compatibly with the human rights under the special interpretive obligation in s 32(1)? and
• Declaration of inconsistency: If it is not possible to reinterpret the legislation, should the Supreme Court make a declaration of inconsistent interpretation under s 36(2)?

In relation to each of these steps, Justice Bell referred extensively to international jurisprudence, including that of the UN Human Rights Committee, the European Court of Human Rights, and domestic jurisprudence from countries such as the United Kingdom, New Zealand, Canada and South Africa. 

Engagement

Justice Bell used the term ‘engagement’ to refer to situations where a statutory provision ‘apparently’ limits human rights; that is, it imposes a limit that needs to be justified under s 7(2).  To decide whether a provision engages a human right, it is necessary to interpret the provision according to the standard principles of interpretation and interpret the right in issue so as to identify its scope, then compare the two.  At the stage of identifying the scope of a human right, the criteria for ‘justification’ are not relevant.  The scope of the right is identified broadly and not legalistically in a way that fulfils its purpose and secures for individuals the full benefit of its protections.  The onus of establishing whether human rights are engaged rests on the party making that assertion. 

Justification and Proportionality

Once it has been determined that a right has been engaged, the next question is to examine whether the limits placed on the right are justified and proportionate under s 7(2).  The onus of establishing that a limitation is justified rests on the party making that assertion. 

Section 7(2) incorporates two requirements: legality and proportionality.  For a limitation to be legal or ‘under law’, it must be accessible, of sufficient precision and not arbitrary.  For a limitation to be proportionate it must be ‘reasonable and demonstrably justified in a free and democratic society’, which is to be determined with reference to the specified criteria set out in s 7(2).  Determining whether a limitation is proportionate requires a global judgment and not a mechanical, check-list approach.  The specific factors are given to help in making the judgment but they are inclusive and other criteria may be considered.  On the specific factors, Bell J stated:

• Nature of the right: All of the human rights in the Charter, without exception, express and protect fundamental values and interests. The task here involves identifying those values and interests.
• Importance of the purpose of limitation: The limitation must relate to societal concerns which are ‘pressing and substantial’ and should be identified with clarity and evidence if necessary.
• Relationship between limitation and purpose: The limitation must be rationally and reasonably connected to its purpose. If the limitation on the right is not rationally connected, it is not justified however important the purpose may be.
• Less restrictive means: The limitation should impair the right ‘as little as possible’. It is not necessary for the limitation to be the least restrictive means available to achieve the ends, but that it ‘fall within a range of reasonable alternatives’.

Reinterpretation

One of the central issues to be determined in this case was the application of the special interpretative provision contained in s 32 of the Charter.  Justice Bell emphasised that the interpretive obligation in s 32(1) is ‘very strong and far reaching’.  With reference to international jurisprudence, he laid out a series of principles to be employed when undertaking the task of reinterpretation.  These included that:

• the application of the obligation is mandatory;
• it applies where the legislation is clear and unambiguous and may even require the court to depart from the legislative intention of parliament;
• it may require the court to depart from pre-Charter interpretations of legislation;
• the purpose of the legislation must be viewed ‘at the appropriate level of abstraction’;
• it may require the court to read in words to legislation, read legislation down or narrowly, or read legislation broadly to achieve compatibility; and
• generally, s 32(1) will not operate retrospectively to pre-Charter events, although it does apply to the interpretation of legislation, whenever enacted.

Justice Bell also clarified that s 32(1) applies to anyone who is required to interpret or give effect to legislation.  This means that legislation conferring an open-ended discretion must be interpreted as allowing the discretion to be exercised only in a manner which is compatible with human rights, assuming that is not inconsistent with its purpose.  Consequently, disputes concerning the compatibility of a public authority’s actions will largely turn on questions of engagement and justification rather than the interpretation of the enabling provision itself.

Declaration of Inconsistent Interpretation

The decision did not discuss this issue as the power is conferred on the Supreme Court and, at least in the United Kingdom, has been observed to be a ‘measure of last resort’.

Application of the Charter to Courts and Tribunals

Another important question to be determined was the application of the Charter to courts and tribunals and in particular, the question of whether the Board and VCAT were bound to act compatibly with all, or only some, of the Charter rights.  In order to answer this question it was necessary to determine the circumstances in which a court or tribunal will be considered to be also acting as a public authority.  Justice Bell recognised that there were three approaches that could be taken to this question: narrow, intermediate and broad.  He felt that the broad approach, which held that courts and tribunals were bound by all rights in the Charter, gave best effect to the purpose of the Charter.  However, he concluded that this approach was inconsistent with the structure of the Charter and that the intermediate approach should be adopted.

This means that courts and tribunals are bound to act compatibly with all of the human rights in the Charter when deciding cases that are administrative in nature in the public law sense.  When acting in a judicial capacity, courts and tribunals are bound to act compatibly only with certain human rights.  These are the particular rights concerning the powers exercised by the court or tribunal specifically in respect of the proceeding before it; namely ss 10(b), 21, 23, 24, 25, 26 and 27.  When VCAT reviews government decisions, such as the present decision of the Board, it is exercising its review jurisdiction which is administrative in nature.  It is therefore bound to act compatibly with all Charter rights.  When the Board is reviewing treatment orders it is also acting in an administrative capacity and is wholly bound by the Charter as a public authority.

Breach of the Right to Fair Hearing

After determining that the Board and VCAT were bound by each of the Charter rights as public authorities, Justice Bell applied his four step approach to each of the rights which Mr Kracke argued had been limited, beginning with the right to a fair hearing.  It was argued by the Attorney-General that this right applied only to judicial proceedings and not to administrative proceedings in courts and tribunals.  This argument was dismissed by Bell J who held that the right applied to both.

Justice Bell held that the Board had breached Mr Kracke’s human right to a fair hearing.  As part of the human right to a fair hearing, hearings must be conducted within a reasonable time.  What is reasonable will depend on such factors as the complexity of the case, the importance of the case to the applicant, any delay caused by the applicant and the explanation for the delay.  On the evidence, Mr Kracke’s case was not unusually complex and was very important to the protection of his human rights.  While Mr Kracke had requested adjournments, the primary reason for the delay was administrative oversight and consequently the failure to review was a breach of Mr Kracke’s right to a fair hearing.

Validity of the Treatment Orders

Mr Kracke argued that the failure to conduct the mandatory reviews made his treatment invalid.  He made this argument based on ordinary principles of statutory interpretation (relying on international human rights jurisprudence) and on the basis of the special interpretative obligation in s 32(1) of the Charter.  In deciding whether the orders were invalid, Bell J was required to apply his four steps of engagement, justification, reinterpretation and declaration of inconsistent interpretation.  As noted above, determining the meaning of a provision on ordinary principles of statutory interpretation is a necessary component of the first step ‘engagement’.

Engagement: Scope of Human Rights and Standard Interpretation

After considering the scope of each of the relevant rights, including by extensive reference to international and comparative human rights jurisprudence, Bell J found that several of Mr Kracke’s rights were engaged by his involuntary treatment.  Making the community treatment order engaged Mr Kracke’s rights to freedom from medical treatment without his full, free and informed consent (s 10(c)), to freedom of movement (s 12) and to privacy (s 13(a)).  Making the involuntary treatment order engaged those rights as well as the right to liberty (s 21).  Reviewing (or failing to review) the treatment orders engaged all of these rights and the right to a fair hearing (s 24(1)).

Justice Bell did not consider that the right to be free from cruel, inhuman or degrading treatment had been engaged as he was not satisfied that the minimal level of severity had been reached.  He also did not consider that the right to liberty was engaged by a community treatment order as the right is concerned with liberty in a traditional, physical sense and is not engaged in the absence of detention.

Justice Bell held that on ordinary principles of statutory interpretation, the failure by the Board to conduct the reviews of Mr Kracke’s treatment orders within the specified times did not render the orders invalid.  This conclusion was reached because, while the failure to review was unacceptable, the purpose of the legislation was to ensure that mentally ill people receive such care, treatment and protection as is medically necessary.

Justification and Proportionality

After identifying the rights engaged, Bell J undertook a proportionality inquiry to determine whether the limits placed upon those rights engaged were justifiable with reference to s 7(2). The key question was whether holding an unreviewed treatment order to be valid was an unjustifiable limit on the patient’s human rights.

Justice Bell held that the limit was proportionate and met the requirements of s 7(2).  The purpose of the limitation was to ensure that necessary medical treatment was given to people who are mentally ill.  This was a very important purpose which was not reduced by the fact that Mr Kracke disputed the necessity of the treatment.  Justice Bell recognised that there may be cases where a safeguard, such as independent review, is indispensable to the proportionality of a limitation; however this was not one of them.  The system contained a range of safeguards of which reviews, though important, were only one part.

Because the limit was a justifiable one, Justice Bell did not need to consider reinterpretation.

Remedies

Mr Kracke adopted the submissions of the Human Rights Law Resource Centre as amicus in relation to remedies and submitted that Bell J should make a declaration that the Board violated his human rights.  Justice Bell accepted this submission in relation to the right to a fair hearing.  In doing so he commented that ‘the Charter is not a toothless tiger’; it expressly preserves the existing powers of courts or tribunals to grant relief or remedies including declarations of unlawfulness in respect of the acts or decisions of public authorities.  In making a declaration that the Mental Health Review Board breached Mr Kracke’s human right to a fair hearing under s 24(1) of the Charter by failing to conduct the reviews of his involuntary and community treatment orders within a reasonable time, Bell J concluded [ at 820]:

“When a human right is breached, the individual is injured.  Because of the broader role of human rights, society is injured as well.  Human rights protect interests and values which society in Parliament considers to be fundamental, both to the individual and to the maintenance of democratic society based on the rule of law.  Where human rights are breached, both the individual and society have a strong interest in the remedy of a declaration, in which inheres their final vindication.”

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/646.html. 

Lisa Mortimer is a lawyer with Allens Arthur Robinson and a member of the legal team which acted for the Human Rights Law Resource Centre, as amicus, on a pro bono basis

09-085 [2009] VMHRB (23 February 2009)

In this case, which concerned the review of a community treatment order (‘CTO’) that prescribed a drug with serious side-effects, a number of significant issues arose in relation to the Charter:

• Is the Board a ‘public authority’ and/or a ‘court or tribunal’ for the purposes of the Charter?
• Are the authorised psychiatrist and the mental health services public authorities under the Charter?
• What is the meaning and application of ‘cruel, inhuman or degrading treatment’ in s 10(b) of the Charter?
• Does the limitations provision contained in s 7(2) of the Charter apply to s 10 rights?
• What is the impact of s32 of the Charter on the Board’s interpretation of the Mental Health Act 1986 (Vic)?

Facts

At the time of the hearing, P was subject to a CTO under which he involuntarily received weekly injections of Depo Provera, an antimale hormone treatment designed to reduce sexual disinhibition.  P had been receiving the injections, along with other treatment for schizophrenia, since 2001 when he was charged and later convicted of a sex offence.  As a direct side effect of Depo Provera, P had developed severe osteoporosis.  At the time of the hearing P lived in the community with his mother.

P appealed to the Board for review of the extension of his CTO.  He argued that the administration of Depo Provera constituted cruel, inhuman and degrading treatment under s 10(b) of the Charter and that this limitation on his human rights, given the severe effect of the treatment, did not satisfy the proportionality test in s 7 of the Charter.  P argued that the references to ‘treatment’ or ‘treatment plan’ in the MHA meant ‘treatment that was not cruel, inhuman or degrading’.  Consequently, the injections of Depo Provera could not be regarded as necessary treatment under s 8(1) of the MHA and should be stopped.

P also argued that the authorised psychiatrist had failed to take into account the effect of Depo Provera on P’s human rights as required by s 19A of the MHA and that the Board should therefore order the authorised psychiatrist to revise P’s treatment plan pursuant to s 35A.

P’s appeal was opposed by the Werribee Mercy Mental Health Service and the Waratah Clinic – Inner West Area Mental Health Service (together ‘the Service’).

Decision

Is the Board a ‘public authority’ and / or a ‘court or tribunal’ for the purposes of the Charter?

The Board reaffirmed its previous decision in 09-003 [2008] VMHRB 1 (8 July 2008) that the Board is a tribunal but not a public authority when conducting its hearing function.  In doing so, the Board questioned the analysis of the Supreme Court of Victoria in Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 (12 September 2008), stating that it ‘may have arisen from an interpretation contrary to the logical and purposive analysis originally intended by the Victorian Parliament’.  The Board distinguished itself from the Medical Practitioners Board which was the subject of the decision in Sabet.  Consistent with its decision in 09-003, the Board held that it was only acting in an ‘administrative capacity’ when conducting registry type functions.

Are the authorised psychiatrist and the Service public authorities under the Charter?

The Board found that the authorised psychiatrist and, by implication, staff employed at the Service, were public authorities for the purpose of the Charter.  They were therefore bound by s 38 of the Charter to act and make decisions compatibly with the Charter rights of involuntary patients.  The Board observed that it is therefore important that the authorised psychiatrist and management of the Service provide appropriate and ongoing training for staff in relation to human rights and their obligations under the Charter. 

What is the meaning and application of the term ‘cruel, inhuman or degrading treatment’ in s 10(b) of the Charter?

The Board held that s 10(c) of the Charter, which provides that a person must not be subjected to medical treatment without their consent, does not limit the protection against cruel, inhuman or degrading treatment found in s 10(b).  In doing so it rejected the Service’s argument that the right to be free from cruel, inhuman or degrading applies only in a penal context.

The Board accepted that, as a general principle, measures which are therapeutic necessities will not be regarded as cruel, inhuman or degrading.  Notwithstanding, it held that even a therapeutic intervention can potentially constitute cruel, inhuman or degrading treatment where the side effects of the treatment reach a ‘minimum level of severity’.  Since measures of therapeutic necessity do not involve deliberate infliction of pain or suffering, the threshold is a high one.  In assessing whether this threshold has been met, regard should be had to all the circumstances, including the duration of the treatment, its physical and mental effects and the sex, age and state of health of the patient.  Relying on the decision of the House of Lords in Regina v Secretary of State for the Home Department; ex parte Adam [2005] UKHL 66, the Board held that treatment will be inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being.

In P’s case, the Board held that the balance between therapeutic benefits of the treatment on the one hand, and the serious side-effects on the other hand was a delicate one, but that the treatment had not yet reached the level of severity which would put it in breach of s 10(b).  That said, the Board expressed the view that further deterioration of P’s bone density in accordance with the treatment plan could foreseeably cross this line and become cruel, inhuman or degrading treatment.

The implication of this finding was that the authorised psychiatrist and the Service were required to apply ‘considerable care and attention’ on a ‘very regular basis’ to monitoring and assessing the impact of the treatment plan on P’s rights.  The Board noted that as soon as the balance tilts such that the side-effects start to outweigh the therapeutic benefits, then the treating team must act to prevent the treatment from attaining the minimum level of severity which engages the prohibition.  The more serious the potential risks of treatment, the more detailed and specific the outline in the treatment plan must be and the more intensive the monitoring process. 

The Board formed the view that there were flaws in the development and implementation of the treatment plan which required further review and revision.  It also found that there had been a lack of effective communication between various treating services.  In light of this the Board ordered, pursuant to s 35A of the MHA, that the authorised psychiatrist review P’s treatment plan to take into account the effect on P’s rights and provide for greater accountability and monitoring.

Does the s 7(2) limitation provision apply to s 10 rights?

Though not essential to the Board’s conclusion, the Board observed that it did not accept that s 10(b) was non-derogable and absolute and therefore outside the ambit of the s 7 limitation provision.  As a matter of statutory construction the Board found that there was nothing in s 10 to suggest that it should be treated any differently from the other rights.  However, the fact that international jurisprudence had treated similar rights as absolute did mean that in undertaking the proportionality analysis required by s 7(2), the starting point should be that a very high degree of justification is required to set any reasonable limits to the s 10 rights.

What is the impact of the Charter on the Board’s interpretation of the MHA?

On the question of interpretation in accordance with s 32 of the Charter, the Board considered itself bound by the comments of Nettle JA in RJE V Secretary to the Department of Justice [2008] VSCA 265 and stated that this meant that, absent any ambiguity or prima-facie incompatibility between the legislation in question and a protected human right, ordinary principles of statutory interpretation should be applied.  Notwithstanding this, the Board was of the view that the five step approach articulated in the New Zealand case of Hansen v The Queen [2007] NZSC 7, could continue to be applied by the Board to assist in the statutory construction task.

The Board accepted P’s argument that the terms ‘treatment’ and ‘treatment plan’ in s 8 and s 19 of the MHA meant ‘treatment that was not cruel, inhuman or degrading’.  Interestingly, the Board did not apply the Hansen approach to reach this conclusion.  Instead in found that ‘essentially’ the term ‘treatment’ had always been interpreted in this way by the Board and was therefore consistent with the Charter on ordinary principles of construction. 

Lisa Mortimer is on secondment to the Public Interest Law Clearing House from Allens Arthur Robinson