Castle & Ors v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin) (8 September 2011)

Summary

The High Court of England and Wales has dismissed claims made on behalf of three school children that their containment at last year’s demonstrations in central London was in breach of their rights under the European Convention on Human Rights (‘EHCR’). The High Court held that the police action taken on the day, “having regard to the need to safeguard children and to promote their welfare, was necessary, proportionate and lawful”.

Facts

In the days preceding the demonstrations, the Defendant was notified of a public procession and received applications in relation to several demonstrations. At this planning stage, the Defendant enquired with school liaison officers as well as demonstration organisers about whether school children would be involved. They determined that there would not be a significant number.

On 24 November 2010, the claimants, then aged 16 and under, arrived at Trafalgar Square at around midday to take part in the demonstrations. At an early morning briefing to his team, the Defendant’s senior tactical commander instructed that if containment became necessary, “vulnerable people” were to be taken, or let, out.

Containment of the demonstrators was authorised shortly after midday due to perceived concerns about the commission of crimes and other breaches of the peace. Several reports of fighting and “unruly” behaviour had already been recorded. Containment was completed at around 1pm and shortly after a commander instructed for “vulnerable persons” to be identified as soon as possible.  After this initial instruction, several other attempts were made to identify and remove “vulnerable persons”.

By around 4pm, toilet and water facilities were set up within the containment area. Although these were insufficient given the size of the containment, it was too late to order a further supply. During the course of the afternoon and evening, various incidents were recorded including the throwing of missiles, a police carrier being vandalised, robberies, the setting alight of a bus shelter and flares being lit.

At around 5:30pm a group of 50 young children, some school children, were released and a police helicopter that had been instructed to scan the crowd for vulnerable children reported that no obvious small children could be seen.

Small groups of children continued to be released and the claimants were released by 8.30pm.

Relying on the statutory duty of police to make arrangements for the welfare of children under the Children Act 2004, the claimants contended that there was a breach of their right to liberty under article 5 of the EHCR.

Decision

The Court received log book evidence from several police members as to the events taking place both inside and outside the containment and were satisfied that “the decision not to allow a general exodus from Whitehall was entirely justified” and further that the “continued anticipation of an imminent breach of the peace is supported by the evidence”.

The Court held that the Defendant discharged his rights under the Children Act 2004 due to the existence and implementation of a policy that provided for “vulnerable persons” to be identified and released as quickly as possible. Relevantly, the Court accepted evidence from the Defendant that the relevant officers understood “vulnerable persons” to apply to children.

The Court also rejected the claimants’ argument that the delay caused by weapons searches rendered the containment unlawful in duration. In doing so, it relied on evidence that significant numbers of protesters were armed and found that the instruction to search those leaving for arms was not “unnecessary, unreasonable or disproportionate”. Accordingly it was held that the containment was not prolonged for any unlawful purposes.

The Court cautioned in particular against placing too much emphasis on “the wisdom of hindsight”. It also stated that its conclusions were influenced by the “contents of contemporaneous records of police action and explanations for decision making”.

Having rejected the common law unlawful detention claims, the Court held that the claim under article 5 of the EHCR must also fail. In relation to other EHCR claims made by the claimants, the Court held it was “unnecessary for us to address those arguments since, as we find, any interference which did take place was for a legitimate reason, in accordance with the law, and proportionate to the legitimate aim of preventing an imminent breach of the peace”.

Relevance to the Victorian Charter

Although this decision does not have direct application to the Victorian Charter, it may be regarded by local courts as instructive when interpreting section 21, being the right to liberty and security of person. The High Court took into account the challenges that the police officers faced on the day of the demonstrations and placed great reliance on the records that were kept.

The decision highlights that individual rights may need to be balanced against the rights and safety of the broader community in the context of demonstrations. It also emphasised the importance of public authorities keeping contemporaneous records of their decision-making process in similar situations.

The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2317.html

Jenny Jiang is a Law Graduate with the Mallesons Stephen Jaques Human Rights Law Group

Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011)

On 18 August 2011 the United Nation’s Human Rights Committee published its View adopted in the Communication (Communication No. 1557/2007) submitted by Stefan Lars Nystrom.

In this landmark decision the Committee found that Australia had violated article 12(4) (the right to enter his own country), and articles 17 and 23(1) (protection from arbitrary interference with his family life) of the International Covenant on Civil and Political Rights.

The watershed decision is a significant one – not only for Mr Nystrom who, the Committee held, should be allowed to return to his home country, Australia – but also more generally for the development of the Committee’s jurisprudence on non-citizens and the protection of families. Perhaps most significantly, this is the first time the Committee has found that the right of a person to freely enter his or her ‘own country’ applies to non-citizens.

Background

Mr Nystrom was born in Sweden, while his mother was visiting family members (his mother was a permanent resident of Australia). When he was 25 days old he travelled to Australia, where he had lived since he was 27 days old, holding a Transitional (Permanent) Visa.

Mr Nystrom lived all his life in Australia with his mother and sister, and thought that he was an Australian citizen. He had no close ties to Sweden; he had not learnt the language, and had no direct contact with his aunts, uncles and cousins there.

Mr Nystrom had a substantial criminal record, and was convicted of a number of serious offences, including aggravated rape when he was 16-years old. He was prosecuted for each of these offences under the Australian criminal justice system.

On 12 August 2004 the (then) Minister for Immigration and Citizenship cancelled Mr Nystrom’s Transitional (Permanent) Visa on the basis that he no longer satisfied the character test specified in section 501(6) of the Migration Act 1958 (Cth). Mr Nystrom’s application for judicial review of the decision to cancel his visa was allowed by the Full Federal Court, which ruled that “it is one thing to say that the responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies with the discretion of the responsible minister. That has little to do with the permanent banishment of an absorbed member of the Australian community with no relevant ties elsewhere”.

The decision of the Full Federal Court was subsequently overturned by the High Court of Australia. With no further avenues for domestic redress Mr Nystrom submitted a Communication to Committee, with the assistance of the Human Rights Law Centre.

An application for interim measures to prevent his expulsion to Sweden was rejected by the Committee in late December 2006, and Mr. Nystrom was deported – in quite extraordinary circumstances (see [2.7] – [2.8]) – on 29 December 2006.

Mr Nystrom submitted that Australia had violated its international legal obligations under the Covenant by canceling his visa and deporting him to Sweden. Specifically, Mr Nystrom alleged that Australia had violated articles 9(1), 12(4), 14(7), 17, 23(1) and 26 of the Covenant, as well as article 2(1) read in conjunction with article 14(7), 17 and 23(1). Further, Mr Nystrom submitted that Australia had violated his mother and sister’s rights under articles 17 and 23(1) of the Covenant.

As noted above, the Committee held that there had been a violation of articles 12(4), 17 and 23(1) in respect of Mr Nystrom. The Committee considered that the claim under article 14(7) was inadmissible (for failure to substantiate); that the claim under article 9(1) failed on its merits; and that it was unnecessary to consider the claims under article 26 or article 2(1). The Committee also considered that the claims of the mother and sister failed on their merits.

Article 12(4)

The Committee’s decision on article 12(4) – which protects the right to enter one’s own country – is a particularly important one; unequivocally establishing that an individual may be able to claim protection against arbitrary deportation by a state party even though he or she is not a citizen of that state.

The Committee considered that the threshold question was whether Australia was, indeed, Mr. Nystrom’s “own country”. It held that “there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality” (at [7.4]). The Committee considered that Australia was Mr Nystrom’s “own country”, “in the light of the strong ties connecting him to Australia, the presence of his family in Australia, the language he speaks, the duration of his stay in the country and the lack of any other ties than nationality with Sweden”.

The Committee went on to consider the alleged arbitrariness of the author’s deportation. The Committee noted that “there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable”.

The Committee’s liberal (and entirely appropriate) interpretation of “own country”, together with its suggestion that there are likely to be no circumstances in which expulsion from such country can be anything other than arbitrary, will no doubt resonate far beyond the case of Mr Nystrom.

Articles 17 and 23(1)

The Committee (again, entirely appropriately) considered that the decision of the Australian government to deport an individual who had lived all of his life in Australia, leaving behind his mother, sister and nephews, amounted to an “interference” with the family.

Although the deportation was lawful under the Migration Act 1958, the Committee considered that it was nonetheless arbitrary, and therefore amounted to a violation of articles 17 and 23(1). In undertaking the balancing exercise required to assess the arbitrariness of the decision, the Committee acknowledged the significance of Mr Nystrom’s criminal record, and the Australian government’s stated desire to protect its other residents. However, on balance, the Committee considered that “the Minister’s decision to deport [Mr Nystrom] had irreparable consequences…which [were] disproportionate to the legitimate aim of preventing commission of further crimes, especially given the important lapse of time [9 years] between the commission of offences considered by the Minister and the deportation”.

Conclusions

The Committee held that, as a party to the Optional Protocol to the Covenant, Australia was bound to provide Mr Nystrom with an effective remedy. In the Committee’s view, this would include “allowing the author to return and materially facilitating his return to Australia”. Significantly, the Committee also held that Australia “was under an obligation to avoid exposing others to similar risks of a violation in the future”.

The Human Rights Law Centre should be congratulated for its brilliant advocacy in this case over the past five years. No doubt this advocacy will continue over the coming months. As the Committee’s decision is not domestically binding, Mr Nystrom’s fate now lies in the hands of the Australian government. In light of the government’s recent attitude towards its international obligations (in the refugee context), it seems likely that Mr Nystrom’s battle is not yet over, and it may be some time before he is permitted to return to his own country, and be reunited with his family.

Jason Pobjoy is a PhD candidate at Cambridge University.

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

Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010)

On an application for a writ of habeas corpus, Bell J of the Supreme Court of Victoria held that the provision in the Mental Health Act 1986 (Vic) for the imposition of a residence condition in a community treatment order (‘CTO’) is the only lawful means of controlling the residence of a person subject to a CTO.  If this power is not exercised, there is no lawful basis for restraining the person’s liberty, which includes freedom of movement.  As the applicant’s place of residence was being controlled without the existence of a residence condition in her CTO, Bell J ordered her immediate release.

Facts

A CTO, under s 14 of the MHA, is the means by which involuntary treatment for mental illness is provided to patients living in the community.  Section 14(3)(b) of the MHA provides that a CTO ‘may specify where the person must live, if this is necessary for the treatment of the person’s mental illness’.

Zeljka Antunovic was subject to a CTO and was a resident at a community care unit (‘CCU’).  However, whilst she was free to leave the CCU during the day, she was required to return there each night to sleep.  When Ms Antunovic requested that she be allowed to live at home with her mother, the authorised psychiatrist responsible for her treatment, together with other staff members at the CCU, told her that she could not go home and that her CTO requires her to stay at the CCU.  Ms Antunovic’s CTO did not contain a residence condition.

Ms Antunovic applied to the Court for a writ of habeas corpus pursuant to Order 57 of the Supreme Court (General Civil Procedure) Rules 2005.  Order 57(3) provides that on application for the writ of habeas corpus, the Court may issue the writ or order that the person restrained be released.

Decision

The decision contains a detailed discussion as to the history and origins of the writ of habeas corpus (in effect a writ to ‘produce the body’ to the court and justify the restraint imposed).  His Honour confirmed that the purpose of the writ is to ‘protect personal liberty, which is the birthright of every individual under the common law’.  His Honour also considered the value of personal liberty to be traceable to the Magna Carta 1297, in force in Victoria and recognised in a number of human rights protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic).

In determining whether to issue the writ of habeas corpus, Bell J relied upon the common law rules pertaining to the issue of this writ.  However, His Honour also considered the Charter rights of freedom of movement and liberty and security of person to be engaged.  In considering the engagement of these rights, His Honour, citing his judgement in Kracke v Mental Health Review Board, noted that the right to freedom of movement protects an individual’s liberty of movement and residence, whereas the right to liberty and security of person is intended to apply to restraints greater than mere restraints on movement.  Justice Bell considered Ms Antunovic’s freedom of movement to be clearly breached but did not consider it necessary to determine the infringement upon her Charter right to liberty.  Further, the content of these Charter rights, as well as, the nature of the rights protected by the International Covenant on Civil and Political Rights, were ‘an important source of understanding of the interests protected by common law habeas corpus’.

Justice Bell determined that the ‘liberty’ protected by the writ of habeas corpus was broader than the right to ‘liberty and security’ protected by the Charter.  It can issue in relation to anyone who has custody, power or control over another person and imposes restraints on that person’s liberty which are not shared with the general public.  ‘Liberty’ in this context includes the right to freedom of movement and freedom to choose where to live.  The person need not be under house arrest or imprisoned. 

His Honour held that the requirement to reside at the CCU was a partial though ‘substantial restraint’ on Ms Antunovic’s freedom of movement and that being prevented from living with her mother added another dimension to the restraint.  The freedom of movement and residence enjoyed by the general public at common law ‘is an important aspect of the private and social life and the development of the individual, including that which occurs within their own family’.  Justice Bell also inferred that Ms Antunovic felt compelled to follow the psychiatrist’s orders given the authority provided to the psychiatrist by the MHA.  This authority includes the power to revoke a CTO for non-compliance with treatment and to detain the person in a psychiatric hospital.  His Honour found that the psychiatrist was using her position under the MHA to direct the imposition of the restraints by the CCU. 

The onus therefore moved to the psychiatrist and the CCU to demonstrate the lawfulness of the restraint.  It was submitted on behalf of the psychiatrist and the CCU that Ms Antunovic’s involuntary status under the MHA permitted the psychiatrist to require her to reside at the CCU as it was ‘treatment’ in her best interests.  Justice Bell rejected this submission.  He referred to the fundamental principle of the common law that the personal liberty of persons can only be restrained pursuant to some express authority provided by law.  Here, this authority was provided by s 14(3) of MHA, but such power had not been exercised. 

As the psychiatrist and the CCU had custody, power or control over Ms Antunovic and were subjecting her to a special restraint for which there was no lawful basis without a residence condition in the CTO, Bell J ordered her immediate release.  His Honour did not issue the writ of habeas corpus as this would have only required the respondents to produce Ms Antunovic to the Court and to justify the restraint, in circumstances where nothing could be submitted or presented to justify the lawfulness of the restraint.

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/377.html. 

Monique Carroll is a Senior Associate with Allens Arthur Robinson and acted on a pro bono basis as a secondee lawyer for the Mental Health Legal Centre in this case

Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010)

A recent decision of the UK Supreme Court has confirmed that certain control order restrictions may constitute a deprivation of liberty sufficient to engage the operation of art 5 of the European Convention on Human Rights. 

Facts

The appellant, AP, is an Ethiopian national residing in the UK.  AP was suspected of involvement in terrorism.  On 10 January 2008, the Secretary of State obtained a control order against AP which was subsequently modified on 21 April 2008.  The modified control order subjected AP to a 16 hour curfew and required him to live at an address in the Midlands, some 150 miles from his family in London.

AP appealed against the imposition of the control order and, on 12 August 2008, Keith J quashed the obligation to live in the Midlands.  Keith J considered that the interference with art 8 of the ECHR (the right to respect for private and family life) was justified and proportionate in the interests of national security.  However, his Honour considered that the terms of the control order constituted an art 5 deprivation of liberty.

In making his finding, Keith J considered that the obligation to live in the Midlands away from family and friends had the effect of subjecting AP to an ‘internal exile’ which, when coupled with the 16 hour curfew, took the control order outside the realm of a mere restriction on movement and instead amounted to a deprivation of liberty.  Keith J found that it was extremely difficult for AP’s family to visit him in the Midlands, that he could not integrate socially and spiritually at the local mosque, and that he suffered general social isolation in the town.  Importantly, Keith J found that, but for the obligation to live in the Midlands, the control order would not have breached art 5.

A majority of the Court of Appeal overturned Keith J’s decision on 15 July 2009.  AP appealed this decision to the Supreme Court.  The appeal raised the following matters:

• whether conditions which were justifiable restrictions under art 8 could ‘tip the balance’ in relation to art 5, in that there would be no breach of art 5 but for those conditions;
• whether the judge can take into account subjective ‘person specific’ factors (such as the particular difficulties of AP’s family visiting him in the Midlands) when considering whether a control order amounts to a deprivation of liberty; and
• whether Keith J had made inconsistent findings of fact in respect of the art 5 and art 8 claims (as was held by the Court of Appeal).

Decision

The Supreme Court unanimously found in favour of the appellant on all three grounds.

In relation to the first ground of appeal, the Supreme Court noted that it was established law that a restriction relevant to an art 8 claim might be relevant to an art 5 claim even if the restriction does not establish a breach of art 8.  Consequently, it was held that if an art 8 restriction is a relevant consideration to an art 5 claim, ‘by definition it is capable of being a decisive factor’ in an art 5 claim.

As to the second ground of appeal, the Supreme Court found that the Secretary of State’s argument that a decision-maker should only look to objective factors in assessing the effect of a control order was entirely without basis.  The Court held that it was necessary to look to both objective and subjective factors in determining the effect that the control order has on the individual’s liberty.  To the extent that subjective factors unreasonably contribute to the individual’s isolation (such as the unreasonable behaviour of an individual or that of his or her family), then the correct analysis is that those factors are to be regarded as causing the relevant restriction on liberty, and not the restrictions of the control order.  However, this was not the case for AP.

As to the third and final ground of appeal, the Supreme Court found that Keith J had not made the inconsistent findings of fact declared by the Court of Appeal.  Accordingly, the Supreme Court set aside the decision of the Court of Appeal and restored the decision at first instance.

Relevance to the Victorian Charter

This case affirms the principle outlined by the majority of the House of Lords in Secretary of State for the Home Department v JJ [2008] 1 AC 385 that an art 5 deprivation of liberty may take ‘a variety of forms other than classic detention in prison and strict arrest’.  Thus, in appropriate circumstances, a control order will be regarded not merely as a restriction on liberty, but rather a deprivation of liberty sufficient to engage art 5.  The approach to deciding this issue in the UK is to consider the length of the curfew and the degree of social isolation occasioned by the control order restrictions.

The case may provide assistance when interpreting the scope of the right to liberty and security of person contained within s 21 of the Victorian Charter.  In particular, the decision may assist in determining whether action taken on the part of the State in respect of an individual constitutes a deprivation of liberty under s 21(3).

The decision is at www.bailii.org/uk/cases/UKSC/2010/24.html. 

Jesse Rudd, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

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.

Facts

This was a rehearing of an application for an administration order under the Guardianship and Administration Act 1986 to appoint State Trustees Limited as administrator to make decisions regarding PJB’s financial affairs, particularly relating to his home.

PJB had a 20 year history of mental illness, including over 100 hospital admissions and had been diagnosed with a delusional disorder.  He disputed that he had a mental illness and was resistant to medical treatment.  He had a history of discontinuing medication upon discharge from hospital, which resulted in the need for readmission.

PJB had lived alone in a home owned by the Office of Housing and had been making payments to acquire this home.

Significant emphasis was placed on PJB’s mental health, and likelihood of successful treatment outside of supported accommodation.  PJB intended to return to living alone in his home, whereas the applicant submitted that he was not able to do so as his mental illness and resistance to medication resulted in him not being able to adequately manage his affairs, including his financial affairs.  Accordingly, the applicant considered it appropriate for an administrator to be appointed to PJB’s estate to sell his home in order to fund the supported accommodation which it was submitted he required.  It was agreed that it would not be possible for PJB to afford to keep his home and pay for the supported accommodation it was submitted that he required.

The applicant tendered numerous medical reports supporting the need for an administration order.  Relevantly, the applicant tendered a psychologist report provided in December 2009 stating that PJB’s mental state impacted on his ability to make informed choices about his physical and mental health.

The applicant suggested that PJB responded well to treatment during his admissions in hospital, but he was likely to discontinue this necessary medication once discharged, based on previous actions.

The applicant submitted that PJB had disregard for his obligations regarding necessary bills and general health and living requirements.  Whilst it was agreed that PJB had demonstrated that he could understand and manage aspects of his finances, it was submitted that he could not manage ‘the complexity of living on his own’, including managing his house, debts and food on a daily basis and living within a budget.

The applicant agreed that PJB functioned ‘extremely well’ in hospital and that in principle he could receive his medication at home under a Community Treatment Order, but his history of admissions resulting from not taking his medication indicated that this was not appropriate in the circumstances. 

It was submitted by the applicant that whilst the current application did not relate to PJB’s mental health treatment as such, certain aspects of his mental and physical illness impacted on his ability to make informed decisions regarding his financial affairs, which resulted in the need for an administration order. 

The respondent also submitted a psychiatrist report.  However, when questioned, the psychiatrist revised his opinion such that he did not consider PJB to have the capacity to make rational decisions.  He stated that he could not tell whether PJB would be able to make reasonable decisions regarding his property if compliance with his medication could be ensured through the provisions of the Mental Health Act 1986.

Decision

The Tribunal found that an administration order was appropriate in the circumstances and appointed State Trustees Limited as the administrator of PJB’s estate.  It was held that decisions about PJB’s home could not be separated from decisions about where it was in his best interests to live.

The Tribunal indicated that any decisions by an administrator about PJB’s home would need to follow careful analysis, in accordance with the principles in the Guardianship and Administration Act 1986, however ‘the issues surrounding that decision suggest a strong possibility that an administrator would decide to sell PJB’s home’.  Therefore, an administration order in the circumstances ‘may have the ultimate result of severing of PJB’s very strong connection with his home’.

The Tribunal agreed that the sale of PJB’s home may be irreversible and extreme, but was appropriate given less restrictive options had failed previously and were likely to fail again. 

Consideration of the Victorian Charter

The respondent submitted that an administration order involved a limitation on PJB’s right to freedom of movement under s 12 of the Charter of Human Rights and Responsibilities Act and his right to privacy under s 13.

Relevantly, s 12 of the Charter states that ‘every person lawfully within Victoria has the right … to choose where to live’.  Section 13 of the Charter provides that a person has the right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.

The respondent argued that the administration order, in the circumstances, involved a limitation on the freedom of PJB to choose where to live and also on his privacy, as this involved the management of his finances through the sale of his home.

The respondent also referred to the decisions in Kracke v Mental Health Review Board & Ors (General) and AC (Guardianship).  In addition the respondent referred to art 19 of the Convention on the Rights of Persons with Disabilities, which recognises the equal right of all persons with disabilities to live in the community with equal choices to others, including the opportunity to choose their place of residence.

The respondent submitted that the application for an administration order was disproportionate to the aims that were trying to be achieved, being to maintain mental and physical health, and this could be achieved in a less restrictive way.  Further, it was submitted that the sale of PJB’s home was an unworkable limitation on his rights as this was irreversible and extreme.

The Tribunal noted that both Kracke and AC (Guardianship) need to be reconsidered in light of R v Momcilovic.

It held that generally administration orders alone would not involve a restriction on the right to freedom of movement and right to privacy, although they may involve restrictions on a person’s ‘freedom of decision and action’.  The Tribunal stated that this was so despite the fact that ‘in practice restricted control of a person’s funds may mean restricted choice about the person’s accommodation’.

However, as the current administration order was ultimately directed at decisions regarding PJB’s home, the Tribunal found that the administration order would involve a limitation on PJB’s right to freedom of movement and right to privacy. 

The Tribunal then considered whether this infringement on PJB’s rights was justified under s 7(2) of the Charter.  In doing so, the Tribunal stated that ‘the question of proportionality is at the heart of the enquiry mandated by s 7(2) of the Charter’, referring to the decision in Momcilovic and also the Canadian case of R v Oakes.

The Tribunal found that the measures were designed to protect PJB and others who were placed at risk due to his behaviour.  Accordingly, it was held that those measures were rationally connected to, and proportional to, the objective.  Therefore, the measures were justifiable under s 7(2) of the Charter.

The Tribunal also found that the administration order did not offend the principles of the CRPD read as a whole.

The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/643.html.  

Mandy Lister is a volunteer lawyer with the Human Rights Law Resource Centre

Secretary to the Department of Justice v AB [2009] VCC 1132 (28 August 2009)

The Victorian County Court has handed down a decision which considers in some detail the application of the interpretative obligation in the Victorian Charter of Human Rights and Responsibilities Act.  Significantly, Judge Ross held that the proper construction of s 11 of the Serious Sex Offenders Monitoring Act 2005, as amended by legislation passed following the Court of Appeal’s decision in RJE v Secretary to the Department of Justice, was not compatible with human rights.

Facts

AB was convicted for indecent assault (among other offences) and imprisoned for five years.  Since his prison sentence ended in October 2008, AB has been subject to an Interim Extended Supervision Orders under the Serious Sex Offenders Monitoring Act 2005. 

The Secretary to the Department applied for a 15 year Extended Supervision Order (‘ESO’) for AB, on the basis of an alleged high degree of probability that AB will commit another sexual offence. 

Section 11 of the Act provides that an ESO may only be made in respect of an offender if the Court is satisfied, to a high degree of probability, that the offender is likely to commit a ‘relevant offence’ (as defined in the Act; broadly speaking, a sexual offence) if released into the community and not made subject to an ESO (a discretionary, not mandatory, power).

Amendments were made to s 11 following the Court of Appeal’s decision in RJE v Secretary to the Department of Justice [2008] VSCA 265, so that the ‘likelihood’ threshold accommodates a lower level of risk than ‘more likely than not’.  Accordingly, s 11(2A) provides that the ‘likelihood’ threshold is satisfied if ‘there is a real risk of the offender committing a relevant offence’, such risk being real and ongoing and which cannot sensibly be ignored given the nature and gravity of the possible offence.  This allows for a lower threshold than ‘more likely than not’ (s 11(2B)).

Decision

Consideration of the Charter

Judge Ross considered the relevance of the Charter to a proper construction of this provision of the Act.  His Honour held that the proper approach to interpreting s 11 of the Act, in compliance with the interpretative obligation in s 32 of the Charter, was to:

• ascertain the meaning of the provision on ordinary statutory construction principles;
• consider whether the meaning of the provision is compatible with the human rights specified in the Charter, which necessarily requires reference to s 7(2) of the Charter (the general limitations provision); and
• if the answer is no, then consider whether it is otherwise possible to interpret the statutory provision, consistent with its purpose, in a way that is compatible with human rights.

His Honour held that the making of an ESO has an effect on a person’s human rights, including ‘the offender’s right to freedom of movement, privacy, freedom of association, liberty and the right not to be subject to medical treatment without his or her full, free and informed consent’ (the same conclusion reached by Nettle JA in RJE), thus making a human rights focussed interpretation of the statutory provision relevant.

In considering whether the limitation on human rights occasioned by s 11 of the Act was reasonable and demonstrably justified (required by s 7(2) of the Charter), Judge Ross took into account, among other things, the Statement of Compatibility in respect of the legislation introducing ss 11(2A) and (2B) of the Act. 

His Honour identified various safeguards which exist in relation to ESOs, such as that they are imposed by a Court independent of the executive, they are subject to mandatory periodic reviews, and the offender may seek a review of the ESO by the Court.  However, his Honour held that, after taking into account all relevant factors, an ordinary construction of s 11 of the Act was not compatible with human rights (as set out in section 32(1) of the Charter), as he was not satisfied that the limitations on rights imposed by s 11 are reasonable and demonstrably justified. 

His Honour further held that there was no alternative construction which would be compatible with human rights and tenable.  Given the County Court does not have the power to make a declaration of inconsistent interpretation, this was the end of the Charter issue so far as his Honour was concerned.  The consequence was that Judge Ross applied the construction of s 11 which flowed from the application of standard statutory construction principles, notwithstanding his view that such a construction was incompatible with human rights. 

Outcome of the application

After considering the assessment reports before the Court (both of which concluded there was a high risk of re-offending), Judge Ross held that he was satisfied, to a high degree of probability, that there was a risk of AB committing a relevant offence, and that the risk satisfied the threshold requirements in s 11 of the Act.  His Honour therefore allowed the application for an ESO, but only for a period of 5 years (rather than 15 years as sought by the Secretary).  He held that it was necessary to limit the impact on the human rights of the person subject to the order by setting a duration which was the minimum necessary.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCC/2009/1132.pdf. 

Jonathan Kelp, Human Rights Law Group, Mallesons Stephen Jaques

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 placed on a Supervised Treatment Order (‘STO’) under the Disability Act 2006 (Vic).  The STO required him to be under constant supervision and allowed him to leave Sandhurst only in restricted circumstances and under the supervision of two staff members.  In 2009, AC applied to the Victorian Civil and Administrative Tribunal for review of the STO. AC wanted the STO to be revised so that he could come and go from Sandhurst as he wished during the daytime and have much more freedom in the community. AC stated that he was prepared to remain at Sandhurst and receive treatment voluntarily.  The Department of Human Services opposed AC’s application.

STOs under the Disability Act

Under the Act, the Tribunal may make an STO if it is satisfied that the matters specified in s 191 apply, namely: the person must have an intellectual disability, be receiving residential services and have a treatment plan in place that has been approved by a Senior Practitioner.  In addition, the Tribunal must be satisfied of the following elements:

• The person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm;
• There is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means;
• The services to be provided to the person in accordance with the treatment plan will be of benefit to the person and substantially reduce the significant risk of serious harm to another person;
• The person is unable or unwilling to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person; and
• It is necessary to detain the person to ensure compliance with the treatment plan and prevent the significant risk of serious harm to another person.

Decision

Before determining whether the criteria in s 191 of the Act had been satisfied in respect of AC, the Tribunal was required to identify the correct meaning of s 191 and, in particular, the meaning of the term ‘serious harm’ when in interpreted in accordance with s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).  AC argued that the STO limited a number of his human rights under the Charter and that the interpretative obligation contained in s 32(1) therefore required the Tribunal adopt a narrow interpretation of the term ‘serious harm’. 

In determining the application of the Charter to the Act, the Tribunal applied the ‘four step’ approach set out by Justice Bell in Kracke v Mental Health Review Board & Ors [2009] VCAT 646 – that its, engagement, justification, reinterpretation and (for the Supreme Court alone) declaring inconsistency. 

At the ‘engagement’ stage, the Tribunal interpreted the provision ‘according to the standard principles of interpretation’.  This included adopting an interpretation that was consistent with international treaties such as the Declaration on the Disabled Persons and applying the principle of legality which states that freedoms cannot be abrogated without clear intent. The Tribunal held that the legislative purpose of the Act was to benefit persons with an intellectual disability but also to protect other members of the community.  It went on to say that the meaning of ‘serious harm’ according to standard principles of interpretation; was ‘harm – physical or mental – that is, when compared to other cases of harm or potential harm “very considerable” and more than significant or marked’.

The ‘engagement’ stage also required the Tribunal to identify the scope of the rights engaged and to determine whether the provision limits the scope of those rights.  AC submitted that the STO limited his rights to non- discrimination, to be free from medical treatment without consent, to freedom of movement, to privacy and not to be subjected to arbitrary detention.  The Department argued that the last two rights were not engaged because the limitation of those rights was not arbitrary.  The Tribunal rejected this argument and stated that where rights are expressed in terms that contain a specific internal limitation such as ‘arbitrariness’, this does not reduce the nature and content of the right.  Rather, the specific limitation is seen as an indication of what might be considered at the later stage of determining whether the limitation is justifiable.  The right to privacy was clearly engaged as the STO limited the ability of AC to express himself, to enter into relationships, and to develop personally in the way that he would wish for.  In relation to the right not to be detained arbitrarily, this right was engaged since the question of whether or not AC’s detention is arbitrary also arises at the later ‘justification’ stage.

Having found that five of AC’s human rights had been engaged by the Charter, the Tribunal then moved on to the second stage of the Charter analysis, determining whether the limitation on those rights was justifiable in accordance with s 7(2), taking into account each of the five factors listed in that section.   The Tribunal noted that at the source of all of the rights engaged was a core value of autonomy – that is, the right to make decisions about oneself in all areas of life.  The Tribunal recognised that ‘this may involve taking risks, making decisions that others disagree with and being accountable for decision making.’  The Tribunal found that there were two purposes of the legislation, to enable AC to receive appropriate treatment while at the same time to protect AC and others from a significant risk of violent and dangerous behaviours.  The Tribunal recognised that the limitations placed on AC were significant but pointed to the safeguards provided by the Act which were designed to ensure that the limitation was as minimal as possible.  The Tribunal then examined the relationship between the limitation and its purpose, highlighting the complexity of the treatment plan and the fact that it was aimed at the reduction of supervision and the gaining of greater autonomy for AC.  Finally, the Tribunal examined the evidence and concluded that the only less restrictive option, receiving treatment voluntarily, was not realistic given AC’s past history.  

Weighing up all of these considerations, the Tribunal found that while AC’s pattern of violent and sexualised behaviour had not yet caused serious harm to another person, there was a significant risk of serious harm occurring if the STO was modified.  The limitations were therefore justifiable under s 7(2) and it was not necessary to move on to the third step of the Charter analysis.  The Tribunal confirmed the STO in relation to AC.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/1186.html. 

Lisa Mortimer is a lawyer with Allens Arthur Robinson

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