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s32 – Interpretation
Victorian Court of Appeal considers Charter post-Momcilovic WK v The Queen [2011] VSCA 345 (30 November 2011) Summary In a recent appeal from an interlocutory decision of the County Court, the Victorian Court of Appeal held, by a majority of 2:1, that s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) [...]
High Court affirms constitutionality of Charter and considers key interpretative provisions Momcilovic v The Queen [2011] HCA 34 (8 September 2011) Summary The High Court’s decision in Momcilovic v The Queen upholds the constitutional validity of the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, the six separate judgments provide varied guidance as [...]
Charter should be interpreted beneficially but not applied retrospectively Collier v Austin Health & Ors [2011] VSC 344 (27 July 2011) Summary The Supreme Court of Victoria’s recent decision in Collier v Austin Health [2011] VSC 344 confirms that section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) will not operate [...]
Charter Promotes and Protects Rights of Person with Disability 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 [...]
Indefinite detention of non-convicted persons’ DNA violates right to privacy GC v The Commissioner of the Police of the Metropolis [2011] UKSC 21 (18 May 2011) Summary On 18 May 2011 the Supreme Court of the United Kingdom handed down a judgment which considered whether a provision in the Police and Criminal Evidence Act 1984 (PACE) [...]
NZ Bill of Rights requires courts to give legislation the meaning which ‘least restricts’ human rights Valerie Morse v The Police [2010] NZSC 45 (6 May 2011) Summary The Supreme Court of New Zealand has found that the right to freedom of expression contained in s 14 of the Bill of Rights Act 1990 (NZ) [...]
Restriction on Right of Expression to Respect Rights and Reputation of Others Hogan v Hinch [2011] HCA 4 (10 March 2011) Summary The High Court of Australia has rejected a constitutional challenge to the validity of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (repealed). That provision allowed a court to prohibit [...]
Evictions and Human Rights Giotopoulos v Director of Housing [2011] VSC 20 (7 February 2011) Summary The Supreme Court refused leave to appeal a decision of the Victorian Civil and Administrative Tribunal (the Tribunal) dismissing an application under section 232 of the Residential Tenancies Act 1997 (the ‘Act’) for the creation of a tenancy. Section [...]
VCAT Considers Disability Discrimination Under the Charter Caserta v Director of Public Transport [2011] VCAT 98 (27 January 2011) Summary The applicant sought a review of the decision of the Director of Transport (‘Director’) refusing to grant him an application for driver accreditation for a commercial passenger vehicle. The Victorian Civil and Administrative Tribunal (‘VCAT’) [...]
Is a Presumption Against Bail Consistent with Human Rights? ACT Supreme Court Rules on Human Rights and the Interpretation of Legislation In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010) The ACT Supreme Court has declared that a provision of the ACT Bail Act 1992 is inconsistent [...]
Can a Commercial Entity Discriminate against People because of their Sexual Orientation on the Grounds of Its Religious Beliefs? Cobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613 (8 October 2010) VCAT has recently ruled that a Christian adventure resort has discriminated against a gay youth suicide prevention group [...]
VCAT Considers Right to Equality and Retrospective Operation of the Charter Valentine v Emergency Services Superannuation Board [2010] VCAT No G585/2008 (29 July 2010) The Victorian Civil and Administrative Tribunal has held that s 32 of the Charter does not apply retrospectively to affect the interpretation of the State Superannuation Act 1988 (Vic) insofar as [...]
Charter Rights Should be Construed Broadly and by Reference to International and Comparative Human Rights Jurisprudence Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010) The Victorian Supreme Court has affirmed the importance of a broad approach to the construction of human rights in the Charter, including appropriate reliance on international human [...]
Right to Humane Treatment in Detention and Prisoner Access to Health Care Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010) On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. [...]
Victorian Supreme Court Adopts Narrow View of Right to Privacy and Eschews International Jurisprudence WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010) This case raises the rights to privacy (s 13) and freedom from retrospective punishment (s 27), interpretation of legislation (s 32) and declarations of inconsistency (s 36) under the [...]
Application of Charter to Guardianship and Administration PJB (Guardianship) [2010] VCAT 643 (17 May 2010) Justice Billings in the Victorian Civil and Administrative Tribunal has held that the appointment of an administrator to the estate of a represented person, PJB, was a justifiable restriction on PJB’s right to freedom of movement and right to privacy. [...]
VCAT Considers Relevance of Charter to Availability of Payments for Childcare from Transport Accident Commission Michelle Dawson v Transport Accident Commission [2010] VCAT 796 (13 May 2010) Facts Ms Dawson was seriously injured in a car accident on 13 October 2005. As a result of her injuries Ms Dawson received a number of therapies in [...]
Statutory Interpretation and Limitations on Rights In the matter of a Major Review of Derek Ernest Percy [2010] VSC 179 (31 March 2010) Derek Percy, the only remaining prisoner in Victoria who was found not guilty of murder on the grounds of insanity, sought to have his custodial supervision order varied pursuant to the Crimes [...]
Court of Appeal Makes Declaration of Inconsistent Interpretation and Considers Statutory Interpretation and Limitations on Rights under the Charter R v Momcilovic [2010] VSCA 50 (17 March 2010) In a landmark decision, the Victorian Court of Appeal has unanimously held that: s 32(1) of the Charter is not a ‘special’ rule of statutory interpretation, but [...]
Planning Law and the Right to a Fair Hearing Thomson v ACT Planning and Land Authority [2009] ACAT 38 (2 October 2009) On 2 October 2009, the ACT Civil and Administrative Tribunal (‘ACAT’) handed down a decision which discussed whether the limitation on ACAT’s jurisdiction to hear applications for review of planning decisions breached the [...]
Equality and Exemptions: Discrimination on the Grounds of Political Activity Victorian Electoral Commission (Anti-Discrimination Exemption) [2009] VCAT 2191 (30 September 2009) VCAT has granted the Victorian Electoral Commission (‘VEC’) an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) to enable the VEC to take into account certain political activities of a person when [...]
Age Discrimination and Equal Opportunity Exemptions under the Victorian Charter Lifestyle Communities Ltd (No 3) (Anti-discrimination) [2009] VCAT 1869 (22 September 2009) In September 2009, VCAT President Justice Kevin Bell dismissed an application by Lifestyle Communities Ltd for an exemption under the Equal Opportunity Act 1995 (Vic) (‘EOA’). In making the orders, Bell P extensively [...]
Freedom of Information and the Public Interest McIntosh v Victoria Police [2009] VCAT 1868 (16 September 2009) In this case, Bell J held that the Freedom of Information Act 1982 (Vic) should be interpreted consistently with the s 15 of the Charter, which recognises that the right to seek, receive and impart information is an [...]
The Disability Act and the Right to Housing Conroy v Yooralla Society of Victoria [2009] VCAT 1873 (7 September 2009) The Applicant, Mr Conroy had a physical disability and had lived in a community residential unit operated by the Respondent (Yooralla Society of Victoria) for 12 years before receiving two notices to vacate under the [...]
The Right to a Fair Hearing and the Privilege Against Self-Incrimination under the Victorian Charter Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009) In a landmark decision for the operation of the Charter of Human Rights and Responsibilities, Warren CJ of the Supreme Court of Victoria, [...]
Interpretation and Limitation of Rights in relation to Extended Supervision of Sex Offender 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 [...]
Supervised Treatment and Limitations on the Rights of Persons with Disability under the Charter AC (Guardianship) [2009] VCAT 1186 (8 July 2009) This case concerns AC, a 26 year old man with a mild intellectual disability who has been living at Sandhurst since 2000. Due to a history of assaultive and sexualised behaviours, AC was [...]
Supreme Court holds that the ‘Interests’ of Mortgagors include their Right to Protection from Arbitrary Interference with the Home Nolan v MBF Investments Pty Ltd [2009] VSC 244 (18 June 2009) The Supreme Court of Victoria recently confirmed that fundamental human rights, both in international law and the Victorian Charter, are relevant interests that must [...]
Failure to Review Involuntary Treatment a Breach of Human Rights Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009) On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a significant decision which discussed in detail important aspects of the application and operation of the Charter. [...]
Supreme Court Considers Retrospective Operation of the Charter State of Victoria v Turner [2009] VSC 66 (4 March 2009) In this case, the Supreme Court of Victoria considered whether it was bound by the interpretive provision in s 32 of the Charter when determining whether the Victorian Civil and Administrative Tribunal made an error of [...]
ACT Court of Appeal Considers Human Rights Interpretative Principle R v Fearnside [2009] ACTCA 3 (24 February 2009) This case establishes the principle that the requirement, set out at s 30 the Human Rights Act 2004 (ACT), to interpret laws compatibly with human rights, requires that laws be interpreted compatibly with human rights as reasonably [...]
Mental Health and the Charter 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 [...]
Right to a Fair Hearing, Statutory Interpretation and Limitation Periods Andrew Casey v Richard Luke Alcock [2009] ACTCA 1 (23 January 2009) The ACT Court of Appeal has indicated that the UK’s Ghaidan approach to legislative construction – which allows a court to depart from the unambiguous meaning of the legislation where necessary to give [...]
In this case, Nettle J of the Victorian Court of Appeal considered the scope and operation of s 32(1) of the Victorian Charter of Human Rights, which provides that ‘so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with [...]
In overturning a decision by the Director of Public Transport to refuse to grant XFJ, the applicant, accreditation to drive commercial taxi vehicles under the Transport Act 1983 (Act) , VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights. Detailed case note.
In a recent decision informed by the interpretive principle in s 3 of the Human Rights Act 1998 (UK), the England and Wales Court of Appeal has read an additional word into a provision of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 (UK) to ensure human rights compatibility. Despite there being no [...]
In this case, concerning the failure of the Mental Health Board to conduct a review of the involuntary treatment of a patient under the Mental Health Act, a number of very significant issues arose in relation to the Charter: 1. Does the Charter apply to the proceeding and, if so, how? 2. Is the [...]
VCAT has imposed a supervised treatment order on a man with an intellectual disability, requiring him to be kept in detention to ensure his compliance with a treatment plan – despite his willingness to consent to the plan – to reduce the risk that he could cause harm to others. The Tribunal referred to, but [...]
The ACT Court of Appeal has held that the obligation under s 30 of the Human Rights Act 2004 (ACT) to interpret laws compatibly with human rights may be engaged even where the words of a statute are clear and there is no ambiguity. In particular, the Court held that a requirement that leave to [...]
In a decision regarding the review of an involuntary treatment order under the Mental Health Act 1986 (Vic), VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights. Detailed case note.
In this recent decision of the Victorian Civil and Administrative Tribunal, s 32(1) of the Charter was used to reject the previous interpretation of certain sections of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Detailed case note.
The UK Court of Appeal has held that the requirement under the Human Rights Act 1998 (UK) that, so far as it is possible to do so, legislation be interpreted and applied compatibly with human rights required that legislation which, on its natural meaning imposed a burden on defendants to establish their innocence, be read [...]
The ACT Supreme Court has recently considered the application of s 30(1) of the Human Rights Act 2004 (ACT), which provides that, ‘In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.’ The Victorian Charter of Human Rights and Responsibilities [...]
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