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Victoria
Charter requires consideration of ‘special circumstances’ of alleged infringement offenders Taha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 (16 December 2011) Summary The Supreme Court has held that infringements officers and courts may have a duty to inquire whether a person has ‘special circumstances’ – [...]
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) [...]
Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011) Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011) Summary On 28 [...]
Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011) Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011) Summary On 28 [...]
Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011) Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011) Summary On 28 [...]
VCAT did not have human rights jurisdiction in public housing matter: Court of Appeal strikes “collateral” blow to Victorian Charter Director of Housing v Sudi [2011] VSCA 266 (6 September 2011) Summary The Victorian Court of Appeal has decided that VCAT, in an application for a possession order under the Residential Tenancies Act 1997, did [...]
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 [...]
When will disciplinary action constitute a ‘punishment’? Psychology Board of Australia v Ildiri (Occupational and Business Regulation) [2011] VCAT 1036 (14 June 2011) Summary The Victorian Civil and Administrative Tribunal (VCAT) has held that deregistering a practitioner for unprofessional conduct under the Health Professions Registration Act 2005 (Vic) is not punishment and therefore does not [...]
Court supports Charter protection of privacy in police interviews DPP v KW [2011] VCC (2 May 2011) The County Court recently handed down a decision in relation to the use by Victoria Police of ‘pretext conversations’ to gather evidence. The matter involved an application by KW to have evidence of a recording of a phone [...]
Right to equality and anti-discrimination exemptions Thales Australia Limited and ADI Munitions Pty Ltd (Anti-Discrimination) [2011] VCAT 729 (29 April 2011) Summary In this decision the Tribunal granted an exemption from certain provisions of the Equal Opportunity Act 1995 (Vic) (EO Act) to companies carrying out contracts with American firms in the defence industry. The [...]
Court will Determine whether a Declaration of Inconsistent Interpretation should be Made During Primary Hearing Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) & Ors (No 2) [2011] VSC 153 (19 April 2011) The case involved an application brought by the Director of Consumer Affairs Victoria against the Hope Clinic. The application sought [...]
Right to Privacy Considered in Relation to Summons to Produce Documents De Simone v Bevnol Constructions & Developments Pty Ltd & Ors [2011] VSCA 54 (3 March 2011) Summary A recent decision of the Court of Appeal has held that it is highly unlikely that the production of documents pursuant to a summons would ordinarily [...]
Aboriginal Children Returned to Care of Maternal Grandmother as Court Finds Charter Applies to Child Welfare Proceedings Secretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011) Summary The Supreme Court of Victoria has ruled that the Children’s Court of Victoria (‘Court’) had the discretion to make orders returning four [...]
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’) [...]
Director of Housing v KJ (Residential Tenancies) [2010] VCAT 2026 (16 December 2010) A recent VCAT decision found that the Director of Housing (‘Director’) acted in accordance with its duties as a public authority pursuant to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in serving the respondent with a [...]
Director of Housing Considers Rights of Vulnerable Tenants Director of Housing v TK [2010] VCAT 1839 (16 November 2010) A recent VCAT decision has shown that public housing authorities are developing a more thoughtful and engaged model of decision making that gives proper consideration to the human rights of vulnerable tenants. Facts The Director of Housing [...]
Relevance of the Victorian Charter to Breath and Blood Testing DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010) The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement. The two separate judgements, delivered [...]
The Relationship between the Victorian Charter and Confiscation of Property DPP v Ali & Anor (No 2) [2010] VSC 503 (10 November 2010) The Supreme Court of Victoria (Hargrave J) recently considered the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to an application to forfeit a family home [...]
What is the Relevance of the Charter to ‘Open Justice’ and the ‘Public Interest’? Inquest into the Death of Tyler Cassidy: Ruling on suppression application by the Chief Commissioner of Police pursuant to s 73(2)(b) of the Coroners Act 2008 During the coronial inquest into the fatal shooting of a teenager by the Victoria Police, [...]
The Use of the Victorian Charter in Criminal Interlocutory Proceedings Wells v The Queen (No 2) [2010] VSCA 294 (4 November 2010) The Court of Appeal dismissed this interlocutory criminal appeal. The applicant in part sought a permanent stay of a criminal trial on the basis that the Charter rights relating to criminal proceedings (ss 24 [...]
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 [...]
Referral of Questions of Law under Section 33 of the Charter De Simone v Bevnol Constructions and Developments Pty Ltd & Ors [2010] VSCA 231 (10 September 2010) The Victorian Court of Appeal has declined to answer a question of law referred to it by the Victorian Civil and Administrative Tribunal under s 33(1) of [...]
What is the Relationship between the Charter and the Equal Opportunity Act? McAdam v Victoria University & Ors (Anti-Discrimination) [2010] VCAT 1429 (3 September 2010) This decision illustrates how Charter arguments may complement complaints under the Equal Opportunity Act 1995 (Vic). It considers an application by Victoria University to strike out or dismiss a number [...]
Supreme Court Considers Right to Liberty and Security of Person Subject to Involuntary Mental Health Treatment 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) [...]
Adoption by Gay Men and Lesbian Women: Two Steps Forward, One Step Back… In the matter of an Application pursuant to s 11(3) Adoption Act (Vic) 1984 AB and Victorian Equal Opportunity & Human Rights Commission and Department of Human Services and Separate Representative of J [2010] VCC AD-10-003 (6 August 2010) A recent decision [...]
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 [...]
Tribunal has Jurisdiction to Determine whether Public Authority has Acted Compatibly with Human Rights Director of Housing v TK [2010] VCAT Application 2010/11921 (Unreported, 22 July 2010) VCAT Deputy President Lambrick has held that the Tribunal has jurisdiction to determine whether an application made pursuant to ss 250 and 330(1) of the Residential Tenancies Act [...]
Right to 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. [...]
Right to Equality and Anti-Discrimination Exemptions: Special Measures to Reduce Disadvantage Department of Human Services & Department of Health (Anti-Discrimination Exemption) [2010] VCAT 1116 (29 June 2010) In this decision, McKenzie DP granted an exemption on the basis that it constitutes an appropriate special measure to reduce disadvantage caused by discrimination, as permitted by s [...]
Right to Equality and Anti-Discrimination Exemptions Members of Owners Corporation on Plan of Subdivision No 441923W (Anti-Discrimination Exemption) [2010] VCAT 1111 (28 June 2010) In this decision, McKenzie DP refused to grant a proposed exemption because it was not the least restrictive means of achieving the desired outcome, contrary to s 7(2)(e) of the Charter. [...]
Coroners Court Determines that Right to Life Requires Inquiries to ‘Address Systemic and Prevention Issues’ Coronial Investigation of 29 Level Crossing Deaths – Ruling on the Interpretation of Clause 7(1) of Schedule 1 of the Coroners Act 2008 (Vic) (25 June 2010) The Coroners Court has held that right to life under s 9 of [...]
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 [...]
Application of Charter to Planning Schemes, Decisions and Considerations Smith v Hobsons Bay City Council [2010] VCAT 668 (12 May 2010) A recent VCAT decision establishes that a planning scheme provision limiting views into existing secluded private open space and habitable room windows is not incompatible with the Charter. VCAT also held that a local [...]
Supreme Court Orders Speedy Trial to Determine Prisoner’s Eligibility to Access IVF Treatment under Victorian Charter Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010) The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of [...]
What does Proper Consideration of Human Rights Entail? Director of Housing v Turcan [2010] VCAT Ref No R201011922 (Unpublished, 4 May 2010) The Victorian Civil and Administrative Tribunal has considered the meaning of ‘arbitrary’ and ‘unlawful’ in the context of s 13(a) of the Charter of Human Rights and Responsibilities Act 2006, as well as [...]
Eviction from Public Housing without Adequate Justification a Breach of Human Rights Justice Bell, sitting as President of the Victorian Civil and Administrative Tribunal, has held that the Director of Housing acted unlawfully under s 38(1) of the Charter in seeking, without adequate justification, to evict a refugee family from social housing in breach of [...]
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 [...]
Right to Freedom of Expression Incorporates Positive Right to Freedom of Information XYZ v Victoria Police [2010] VCAT 255 (16 March 2010) In a significant decision, Bell J has held that the right to freedom of expression under s 15(2) of the Victorian Charter ‘incorporates a positive right to obtain access to government-held documents’. His [...]
Coroner Considers Applications for Leave to Make Submissions on Charter of Rights in Police Shooting Inquest Inquest into the Death of Tyler Cassidy: Ruling on applications to be granted leave to participate as Interested Parties pursuant to s 56 Coroners Act 2008 (4 March 2010) The Coroner’s Court of Victoria recently considered applications by three [...]
Temporary Exceptions and the Right to Equality and Non-Discrimination: Exemptions should be Subject to Ongoing Monitoring and Evaluation Wesley College (Anti-Discrimination Exemption) [2010] VCAT 247 (3 March 2010) In this case, VCAT considered an exemption application pursuant to s 83 of the Equal Opportunity Act 1995 by Wesley College. The exemption sought to enable Wesley [...]
Does the Creation of a Tenancy or the Making of a Possession Order Engage Human Rights? Heywood v Director of Housing [2010] R2009/36396 (4 January 2010) In this case, the Victorian Civil and Administrative Tribunal considered the application of provisions of the Residential Tenancies Act 1997 (Vic) which provide for the creation of a tenancy [...]
Freedom of Information and Security of Prisons Rogers v Chief Commissioner of Police [2009] VCAT 2526 (26 November 2009) In Rogers v Chief Commissioner of Police, VCAT held that CCTV footage and audio tape used for the investigation of an incident that occurred in the Banksia Unit of HM Barwon Prison were exempt from disclosure [...]
Equality and Exemptions: VCAT Denies Exemption for Women Only Travel Tours Travel Sisters (Anti-Discrimination Exemption) [2009] VCAT A189/2009 (17 November 2009) Facts In 2009, Erin Maitland applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) under s 83 of the Equal Opportunity Act 1995 (Vic) (‘EO Act’), for an exemption to allow her to operate [...]
Freedom of Information under the Victorian Charter McInnes v Vicroads (General) [2009] VCAT 2342 (4 November 2009) McInnes made an application under the Freedom of Information Act 1982 (Vic) (‘FOI Act’) to VicRoads for a copy of an anonymous letter that VicRoads had received warning that his health might impact on his driving. VicRoads asked [...]
Right to a Fair Hearing and the Duty of the Court to Unrepresented Litigants Russell v Yarra Ranges Shire Council [2009] VSC 486 (29 October 2009) On 29 October 2009, Kaye J of the Supreme Court of Victoria considered the duty that a court or Tribunal might owe to an unrepresented litigant to ensure that [...]
Equality and Exemptions: Discrimination to Promote Gender Equality in Education Carey Baptist Grammar School Ltd (Anti-Discrimination Exemption) [2009] VCAT 2221 (23 October 2009) Carey Baptist Grammar School (‘Carey’) was also successful in its application to VCAT for an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’). VCAT renewed Carey’s exemption to enable it [...]
The Meaning of ‘Public Authority’ and the Application of the Charter to Non-Government Bodies Metro West v Sudi [2009] VCAT 2025 (9 October 2009) The Victorian Civil and Administrative Tribunal has held that a non-profit housing agency is a ‘public authority’ under section 4(c) of the Victorian Charter of Human Rights and Responsibilities Act 2006 [...]
Equality and Exemptions: Discrimination on the Grounds of Political Activity Victorian Electoral Commission (Anti-Discrimination Exemption) [2009] VCAT 2191 (30 September 2009) VCAT has granted the Victorian Electoral Commission (‘VEC’) an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) to enable the VEC to take into account certain political activities of a person when [...]
Age Discrimination and Equal Opportunity Exemptions under the Victorian Charter Lifestyle Communities Ltd (No 3) (Anti-discrimination) [2009] VCAT 1869 (22 September 2009) In September 2009, VCAT President Justice Kevin Bell dismissed an application by Lifestyle Communities Ltd for an exemption under the Equal Opportunity Act 1995 (Vic) (‘EOA’). In making the orders, Bell P extensively [...]
Supreme Court Considers Relevance of Conditions of Detention to Bail Dale v DPP [2009] VSCA 212 (21 September 2009) In considering whether a former police officer should be granted bail, the Court of Appeal accepted that the circumstances of his custody constituted ‘exceptional circumstances’ as defined by the Bail Act 1977 (Vic). Unless the appellant [...]
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 [...]
Access to Court Fundamental to Right to Fair Hearing Materials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405 (8 September 2009) On 8 September 2009, Vickery J of the Victorian Supreme Court handed down a decision which considered the right to commence a civil proceeding. In the decision, Vickery J noted that the [...]
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, [...]
Supreme Court Considers Relevance of Conditions of Detention to Sentencing R v Kent [2009] VSC 375 (2 September 2009) On 2 September 2009, Bongiorno J of the Victorian Supreme Court handed down a decision which considered the application of the Charter to sentences of imprisonment imposed on individuals with mental health conditions. Facts Shane Kent [...]
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 [...]
Freedom of Information, Freedom of Expression and the Charter Smeaton v Victorian WorkCover Authority [2009] VCAT 1195 (5 August 2009) The Applicant sought review of a decision by the Victorian WorkCover Authority to transfer documents that were the subject of a Freedom of Information request by the Applicant to the Ombudsman. The effect of the [...]
Equal Opportunity Exemptions and Special Measures under the Charter Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009) The Victorian Civil and Administrative Tribunal has again granted a swimming pool operator a temporary exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) to enable it to conduct women-only swimming [...]
Supervised Treatment and Limitations on the Rights of Persons with Disability under the Charter AC (Guardianship) [2009] VCAT 1186 (8 July 2009) This case concerns AC, a 26 year old man with a mild intellectual disability who has been living at Sandhurst since 2000. Due to a history of assaultive and sexualised behaviours, AC was [...]
Right to Privacy and Unlawfulness of Eviction into Homelessness Homeground Services v Mohamed (Residential Tenancies) [2009] VCAT 1131 (6 July 2009) The Victorian Civil and Administrative Tribunal (‘VCAT’) has held that a non-profit welfare agency acted unlawfully pursuant to s 38(1) of the Victorian Charter in seeking to evict a young tenant from transitional housing [...]
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 [...]
Application of the Charter in Planning Disputes Swancom Pty Ltd v Yarra CC [2009] VCAT 923 (10 June 2009) On 10 June 2009, Deputy President Dwyer and Member Bensz of the Victorian Civil and Administrative Tribunal handed down a decision which discussed the application of the Charter of Human Rights and Responsibilities Act 2006 to [...]
Vexatious Litigants and the Rights to a Fair Hearing, Access to a Court and Legal Aid Kay v Victorian Attorney-General & Anor (Victorian Court of Appeal, Unreported, 19 May 2009) In this case, the Victorian Court of Appeal considered whether the making of a vexatious litigant order was compatible with the right to a fair [...]
Referral of Question of Law under Victorian Charter De Simone v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2009] VCAT 888 (13 May 2009) For the first time, VCAT has referred a question of law arising under the Charter for determination by the Supreme Court, by way of s 33 of the [...]
Right to Equality and Exemptions under the Equal Opportunity Act YMCA – Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009) This case explores the relationship between human rights and equal opportunity legislation. It was decided by VCAT that the YMCA should be granted a temporary exemption from the Equal Opportunity Act [...]
Failure to Review Involuntary Treatment a Breach of Human Rights Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009) On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a significant decision which discussed in detail important aspects of the application and operation of the Charter. [...]
Courts and Tribunals Directly Bound by Charter Rights De Simone v Bevnol Constructions and Developments Pty Ltd (2009) (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and William AJA, 3 April 2009) The Court of Appeal held that courts and tribunals are bound by ss 24 (right to a fair hearing) and 25 [...]
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 [...]
The Treatment of Delay under the Bail Act post-Charter: Is Change Required? DPP (Cth) v Barbaro [2009] VSCA 26 (3 March 2009) The Victorian Court of Appeal has considered whether the enactment of the Charter necessitates a change to the treatment of delay under the Bail Act 1977 (Vic). Facts The appellant, Pasquale Barbaro, was [...]
Disability Convention, Legal Capacity and Domestic Law Nichoson & Ors v Knaggs & Ors [2009] VSC 64 (27 February 2009) The Victorian Supreme Court adopted a human rights approach to the issue of legal capacity for those who have disabilities. In accordance with the UN Convention on the Rights of Persons with Disabilities (the ‘CRPD’), [...]
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 [...]
Balancing Open Justice, the Right to Privacy and Freedom of Expression XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009) The Victorian Civil and Administrative Tribunal has confirmed that society’s interests in an individual’s rehabilitation can override the principle of ‘Open Justice’ and the right to freedom of [...]
Self-Represented Litigants and the Right to a Fair Hearing Davies v Commonwealth Bank of Australia Ltd (Credit) [2009] VCAT 90 (28 January 2009) This case considered the correct approach to be followed in dealing with unrepresented litigants and balancing their rights to a fair trial and access to justice with defendants’ rights. Facts Unrepresented applicants [...]
In this case, 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 this case, VCAT found that the Charter rights to a fair hearing (s 24) and the rights in criminal proceedings (s 25) do not extend to persons who are being investigated by police for possible commission of a criminal offence. Detailed case note.
In a recent VCAT decision, Harbison J has confirmed that the limitations provision of the Charter now defines the parameters of VCAT’s power to grant an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) under s 83 of the EO Act. Detailed case note.
In refusing an application for bail, Justice Lasry of the Victorian Supreme Court considered the impact of s 21(5) of the Charter – which provides the right to be brought to trial without unreasonable delay – on the Bail Act 1997 (Vic). Detailed case note.
The Supreme Court of Victoria (Robson J) has held that civil penalty proceedings against five former directors of AWB Limited should be stayed in the exercise of the Court’s inherent jurisdiction. This was on the basis that criminal proceedings are threatened against them for conduct that is substantially the same as the conduct that is [...]
The Residential Tenancies List of the Victorian Civil and Administrative Tribunal rejected submissions that making a compliance order against a tenant would be contrary to the Charter. Member Nihill considered that the proceedings did engage the s 13 Charter ‘privacy’ right however considered the compliance procedure to be a reasonable limitation under s 7 of [...]
In overturning a decision by the Director of Public Transport to refuse to grant XFJ, the applicant, accreditation to drive commercial taxi vehicles under the Transport Act 1983 (Act) , VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights. Detailed case note.
This case raises issues in relation to the scope of human rights and the contradictions which will necessarily exist between statutory provisions such as s 191 of the Disability Act and the Charter. It is ultimately the case that decisions made under many of these provisions will be considered under the test for demonstrably justified [...]
In this case Vickery J decided that it was appropriate in a free and democratic society to temporarily curtail freedom of media expression to guarantee X the right to a fair trial. Detailed case note.
VCAT has granted a restricted exemption from employment-related provisions of the Equal Opportunity Act 1995 (Vic) to a defence-related contractor, allowing the contractor to discriminate against its employees on the basis of nationality. Detailed case note.
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 [...]
In this case, VCAT considered that the rights to privacy and family, and to protection of children and the family unit, were relevant to determining whether an application for an order of possession by the Director of Housing should be granted as against a single mother of four children. Detailed case note.
This was a case regarding an application for permits to subdivide land and construct various buildings ancillary to a freeway which would involve the removal of native vegetation to the detriment of the Growling Grass Frog. During the hearing of the merits, a challenge was made to VCAT’s jurisdiction to hear the matter and submissions [...]
The Victorian Civil and Administrative Tribunal has held that a government authority’s refusal to issue a commercial driver’s licence on the basis of the applicant’s history of insurance fraud did not engage the applicant’s right to freedom from double punishment under s 26 of the Victorian Charter. However, on the facts, the applicant was nevertheless [...]
In a decision regarding the review of an involuntary treatment order under the Mental Health Act 1986 (Vic), VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights. Detailed case note.
In this recent decision of the Victorian Civil and Administrative Tribunal, s 32(1) of the Charter was used to reject the previous interpretation of certain sections of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Detailed case note.
In this case, the Supreme Court was asked to consider the proper construction of s 6(2)(b) of the Charter, which provides that the ‘Charter applies to courts and tribunals to the extent that they have functions under Part 2’. Part 2 of the Charter enshrines a body of civil and political rights largely derived from [...]
The applicants had been charged with terrorism-related offences under the Commonwealth Criminal Code. They applied to have the trial stayed on grounds of unfairness, arguing the conditions of their incarceration and of their transport to and from Court each trial day were increasingly affecting their capacity to properly defend the charges against them. Detailed case [...]
In a recent decision of the Supreme Court of Victoria, Habersberger J considered the extent to which the rights protected under the Victorian Charter apply to the acts and decisions of public authorities that are connected with a judicial proceeding. Detailed case note.
In a recent decision, the Victorian Court of Appeal (Warren CJ, Vincent and Kellam JJA) considered the jurisdiction of a trial judge to make suppression orders to restrain an apprehended contempt of court. In doing so, it discussed issues that will be relevant in balancing the Charter right to freedom of expression (protected by s [...]
The Victorian Civil and Administrative Tribunal has allowed an application to reconstitute the Tribunal, on the basis that a respondent to the proceedings would not receive a fair hearing before a particular Tribunal Member. The Tribunal’s decision stated that the Charter has reinforced the positive duty of courts and tribunals to provide assistance to litigants [...]
In a significant decision, the Supreme Court of Victoria has outlined the nature and scope of the principle of ‘equality of arms’ as an aspect of the right to a fair hearing. While the Court held that the Victorian Charter did not apply to the proceeding (as it was commenced prior to the entry into [...]
In the first decision to substantively consider the Victorian Charter of Human Rights since it became justiciable on 1 January 2008, Bongiorno J has held that the Charter guarantees the right to a timely trial and that the appropriate remedies for failure of the Crown to provide such a trial are release of the accused [...]
Under ss 17(1)(c) and 17(1)(d) of the Summary Offences Act 1966 (Vic), it is an offence to use insulting words and behave in an insulting manner in a public place. In this decision, Harper J held that these sections are subject to the decision in Coleman v Power (2004) 220 CLR 1 (that is, ‘whether [...]
In sentencing a young offender found guilty of murder, Bell J of the Supreme Court of Victoria had regard to international human rights principles, including the rights of the child under the Convention on the Rights of the Child, in the exercise of his sentencing discretion. Detailed case note. Full text decision: www.austlii.edu.au/au/cases/vic/VSC/2007/489.html
In a very significant decision, the Supreme Court of Victoria has considered the relevance and application of the human rights to equality before the law, access to justice and the right to a fair hearing under the ICCPR to the right to a fair trial under Victorian law and the obligations of the court to [...]
The incarceration in prison of a person with a severe psychiatric illness may amount to a violation of the Victorian Charter of Human Rights, according to Bongiorno J of the Supreme Court of Victoria. Detailed case note. The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/142.html.
Supreme Court of Victoria Considers Right to Legal Counsel under Charter of Human Rights – ss 6, 7, 4, 25, 49(2). Detailed case note. The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/2.html.
Extended supervision of convicted sex offender – Limitations on human rights under s 7 Detailed case note. The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSCA/2006/199.html.
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