The below table lists important Charter Act litigation including links to the judgments on Austlii:

 

Case Charter Issues Notes Case Summary
22 March 2016 - De Bruyn v Victorian Institute of Forensic Mental Health (Supreme Court of Victoria)
This case concerned whether a patient's human rights were breached when a Victorian mental health hospital implemented a smoke free policy (smoking ban). The Court held that: 
 
(i) the hospital did not fail to give proper consideration to the plaintiff's Charter rights to property (s 20), humane treatment when deprived of liberty (s 22(1) and (3)) and right not to be subjected to medical treatment without consent (s 20(c)); 
(ii) the hospital's smoke free policy was within the hospital's powers under the Mental Health Act 2014; and 
(iii) the hospital's smoke free policy was not inconsistent with the Tobacco Act 1987. 
  Summary
30 December 2015 - ZEH (Guardianship) (VCAT) This case concerned an application to VCAT by the parents of an intellectually disabled woman for VCAT's consent to perform a tubal ligation as a form of permanent contraception. VCAT was not satisfied that there was a therapeutic basis for the procedure or that tubal ligation was the least restrictive option for preventing pregnancy. The application was rejected. VCAT noted that preventing a person from becoming a parent administering such a procedure without their full and informed consent represents a denial of their fundamental human rights.    Summary

Goode v Common Equity Housing [2016] VCAT

VCAT originally dismissed Ms Goode’s discrimination claims in 2013, but did not consider her Charter arguments.  She successfully appealed to the Supreme Court on this point and the matter was remitted back to VCAT to be heard and decided again.   
 
VCAT found that Common Equity, when exercising the function of providing affordable social or community housing for low income tenants, and when regulated under the Housing Act as to the exercise of this function, is a public authority under the Charter.   The functions exercised are of a public nature and the service provided is the provision of social housing (described as a function of government of fundamental importance).  VCAT was ‘satisfied that the function performed by Common Equity of providing affordable housing to low income tenants is sufficiently connected to functions of government’.  Further, that Common Equity is publicly funded to perform these functions and is exercising those functions on behalf of the State.  
 
However, VCAT did not consider it open to find that there had been a failure on the part of Common Equity to turn their minds to the possible impacts of administrative matters on human rights.  Common Equity  had made ongoing attempts to resolve grievances, e.g. through meetings and correspondence, and had considered various rent payment options.  It was reasonable for Common Equity to seek a means by which rent can be paid to it and that it had a responsibility to manage its housing efficiently and to collect appropriate rent. 

 

Therefore, no Charter breaches were found to have occurred. 

  Summary
Hoskin v Greater Bendigo City Council [2015] VSCA 350

This case concerned objections to the proposed building of a mosque in Bendigo.  The court held that the Tribunal did not err in its merits review, in particular in its decision that there is no requirement for a social impact assessment and that it was not open to the objectors to object to a form of religious worship in itself.  

 

Further, the court held that the Charter also imposes an obligation under s 38 on the Council to have regard to the human rights of the proposed future users of the mosque when deciding whether or not to grant the permit. The court stated that 'the Tribunal was both entitled, and indeed required by the operation of the Charter on the proper construction of the P&E Act, to disregard the objections to the practice of Islamic religious worship in mosques and such'. 

  Summary
McKay v Taylor [2015] 

This case concerned an appeal against a conviction and sentence in relation to a charge of refusing to accompany a police officer for breath analysis under s 55 of the Road Safety Act 1986.  The Court found that there was no Charter jurisdiction, because there was no other remedy or relief being sought on the basis of non-Charter unlawfulness.

 

In any event, her Honour was not satisfied that there had been any breach of the Charter under s 38, as the informant, in requiring the appellant to travel in the pod of the police van, did not fail to give proper consideration to a relevant human right. Notably, her Honour confirmed that the ‘proper consideration’ test in s 38 ‘can be met in a manner which recognises the practical realities of such decision-making.’

  Summary
Fraser v Walker [2015] VCC 1911

This proceeding was an appeal from the Magistrates' Court regarding a conviction under the Summary Offences Act of displaying an obscene figure in a public place (East Mebourne Fertility Clinic).

 

The Court found that the images were indeed obscene.  The  implied constitutional right to freedom of political communication is not unlimited and the Judge was not satisfied that what the appellant was displaying could be properly characterised as political communication—it was not directed to government, but rather to the attendants of the clinic. 

  Summary
North Australian Aboriginal Justice Agency (NAAJA) v Northern Territory of Australia [2015] HCA 41

Charter issues: In this case, the High Court of Australia upheld the validity of laws granting police in the Northern Territory new powers of post-arrest detention for infringement offences (known as 'paperless arrests' powers). The North Australian Aboriginal Justice Agency (NAAJA) and the plaintiff challenged the constitutional validity of the laws and argued that: - the detention power was punitive in nature and contravened the separation of powers under Ch III of the Constitution (which they argued applied in the NT) - alternatively, it undermined the institutional integrity of the NT courts contrary to the principle in Kable v DPP (which invalidates state and territory legislation that requires courts to act in a way inconsistent with their Federal jurisdiction).

In a 6:1 decision, the Court held that the legislation was valid. In a joint judgment, French CJ, Kiefel and Bell JJ affirmed the principle of legality, which favours an interpretation minimising the impact on fundamental rights and freedoms, including the right to liberty. Whilst finding the legislation was valid because it did not breach the separation of powers doctrine, their honours noted the limits on the detention power, including that legislation which removes the court's ability to supervise detention may breach the separation of powers doctrine.

Gageler J dissented and found that the legislation was invalid on Kable grounds. He concluded that the legislation authorised punitive detention; the period of detention was not reasonably necessary to achieve any proper law enforcement purpose and was left open to the discretion of police. Therefore, it was a punitive power, under which police acted not as accuser but as judge.

  Summary
BARE v IBAC - Court of Appeal
On 29 July 2015, the Court of Appeal, by majority, allowed an appeal by Nassir Bare against a decision of a single judge of the Supreme Court. The trial judge had upheld the original decision of the Director (Director) of the Office of Police Integrity (OPI) not to investigate a complaint against a member of Victoria Police of cruel, inhuman or degrading treatment. Among other things, Mr Bare complained to the OPI that he was capsicum sprayed by police while handcuffed, had his teeth chipped on the gutter during his arrest and was racially abused by officers. 
 
The Court of Appeal held that the decision was unlawful on the basis of an error of law on the face of the record – specifically, the Director’s failure to give proper consideration to Mr Bare’s human rights, as required by section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Charter). The Court of Appeal quashed the decision and ordered the Independent Broad-based Anti-corruption Commission (IBAC)–which has since replaced the OPI – to reconsider Mr Bare’s complaint and to give proper consideration to his human rights under the Charter when doing so.
  Summary
Carolan v The Queen [2015] VSCA 167

This case concerned Mr Carolan, a serious sex offender, who was under an indefinite sentence of imprisonment.  The Court of Appeal discharged the indefinite detention order, finding the County Court erred in placing Mr Carolan under this order.  The Court of Appeal also used section 32 of the Charter to interpret the SSODSA provisions in a more rights compatible way.

 

The Court also noted the extreme nature of indefinite sentences and that their use should be confined to exceptional circumstances.

  Summary
Kuyken v Chief Commissioner of Police [2015] VSC 204

This proceeding concerned an allegation that the Chief Commissioner of Police had discriminated against Mr Kuyken in settling new grooming standards for Victoria Police.

Mr Kuyken submitted that the interpretative obligation in s 32 of the Charter should affect the meaning of the relevant provision of the Police Regulation Act 1958(PR Act) to take account of his right to protection from discrimination under the Charter.

Garde J concluded that the relevant provision of the PR Act gave the Chief Commissioner power to set grooming standards that might otherwise be discriminatory, and that this was clearly the intention of Parliament. His Honour held that the interpretative obligation in s 32 of the Charter’ could not alter that meaning.

  Summary
Goode v Common Equity Housing VSC 585

This case was on appeal from an order made in the Tribunal that dismissed Ms Goode's application against Common Equity Housing and allegations of prohibited discrimination and breaches of the Charter. 

 Justice Bell found that when a person is entitled to seek relief or remedy in the tribunal on a ground of non-Charter unlawfulness, it does not lose the jurisdiction to grant relief or remedy on a ground of Charter unlawfulness because the non-Charter ground is rejected.

   
Kerrison v Melbourne City Council (Occupy Melbourne case) FCAFC 130

Appeal from Muldoon was dismissed. 

The Court concluded that the making of Local Laws could not be challenged under s 38(1) of the Charter.

  Summary
Rich v The Queen [2014] VSCA 126

An amendment to the Evidence Act 1968 retrospectively validated affidavits that had not been made on oath or affirmation.  The applicant argued that this was inconsistent with his right to a fair trial.

The Court held that the amendment was not inconsistent with the right to a fair trial.  There was no public policy, fairness or other legal reason why the evidence should have been excluded.

As there was no police impropriety in obtaining the evidence and the crime was very serious, it would not have been right to exclude the evidence because of the defect in swearing of the affidavit.

  Summary
DPP v Bryar (Supreme Court) [2014] VSC 224

In this case a judicial registrar found the accused guilty of a lesser offence than one charged.  The police informant sought review of this decision, but the Magistrate accepted a plea of autrefois convict (double jeopardy). 

On appeal to the Supreme Court, Rush J found that the intent of the legislation was to provide all parties, incouding police informants, with a right of appeal by way of hearing de novo before a magistrate from a proceeding determined by a judicial registrar.

Rush J also held that while the Charter Act embraces the common law principle against double jeopardy, that does not permit an interpretation that is inconsistent with the grammatical meaning and purpose of the relevant section.

For more information, see under the 'Resources' tab.

 

Summary

 

Decision

Christian Youth Camps (CYC) v Cobaw Community Health Services (Court of Appeal) [2014] VSCA 75 The Court of Appeal dismissed CYC's appeal.  By majority, the court found that there was no error in VCAT's findings that: (i) there was discrimination on the basis of sexual orientation; and (ii) neither of the exemptions directed at preserving religious freedom applied in the circumstances of the case.  

Summary

 

Decision

DPP v JPH (No 2) (Supreme Court) [2014] VSC 177

JPH is a serious sexual offender on a supervision order.  The DPP applied for a detention order (which has the effect of committing an offender to detention in prison for the period of the order). 

Forrest J found that JPH posed an unacceptable risk of committing a sexual offence and the risk would be unacceptable unless a detention order was made.  No less restrictive means were available for managing the risk.

There was no inconsistency between the detention order regime and Charter Act rights, particurlarly section 21 (liberty and security of person) and section 22 (humane treatment when deprived of liberty).

  Summary
Paul Slattery v Manningham City Council (Victorian Civil and Administrative Tribunal) 30 October 2013   Senior Member Nihill found that the declaration prohibiting Mr Slattery from attending any building owned, occupied or managed by the Council constituted direct discrimination in the provision of services on the grounds of disability in breach of s 44 of the EO Act 2010. It was also in breach of section 38 of the Charter Act. VEOHRC intervened in the proceeding.   See yellow box above for decision (it has not been published)

Summary  

 

Decision

Muldoon v Melbourne City Council [2013] FCA 994

 The human rights relied upon were the right to freedom of expression, peaceful assembly and freedom of association 
The same reasons for finding that the impugned provisions do not impermissibly burden the implied freedom of political communication applies to the Charter arguments.  Therefore, the limits are reasonable limits within the terms of ss 7(2) and 15(3) of the Charter
 
It is unnecessary to decide whether s 38 of the Charter applies to legislative acts of the Council.  If it were necessary to do so, the arguments of the Council and AG arguments that the section does not apply to such acts would have been accepted.

  See VGSO notes on the decision.

 

Applicants have appealed.

 

 

 

 

Summary

Bare v Small [2013] VSC 219

Plaintiff challenged two decisions by the Office of Police Integrity (OPI) to refer an investigation to Victoria Police on the grounds that it breached his right to an independent investigation of his allegations of cruel, inhuman or degrading treatment by officers of Victoria Police under s 10(b) of the Charter Act.

 

Williams J held there is no implied procedural right under s 10(b) of the Charter Act to an effective investigation. Her Honour also held s 109 of the Policy Integrity Act prevents the Court from determing Bare's claims that the decisions by the OPI were contrary to the Charter Act.

 Plaintiff has appealed.  
Victorian Toll & Anor v Taha and Anor; State of Victoria v Brookes & Anor [2013] VSCA 37

Court of Appeal unanimously upheld the Supreme Court decision that, together with the Charter Act and common law principles of interpretation, section 160 of the Infringements Act 2006 was to be read as a unified whole so that the conditions which permit relief from imprisonment are considered before an order of imprisonment is made.

 

Tate JA in particular makes extensive comment regarding the Charter Act, stating that section 32 of the Charter Act requires statutes to be adopted in accordance with the principle of legality as extended to the range of rights protected under the Charter Act.

   
Aitken v DEECD [2012] VCAT 1547

Three parents of children at three Victorian State primary schools brought proceedings on behalf of their children arguing that the method of providing Special Religious Instruction (SRI) in these schools directly discriminates against their children in breach of the Equal Opportunity Act.

 

Judge Ginnane found that the complainants did not establish any discrimination against their children.  Ginnane J found that the children had not been treated less favourably nor subject to unfavourable treatment.

   
Magee v Delaney [2012] VSC 407) Supreme Court considered freedom of expression (section 15), finding that painting over an advertisement in an act of protest against advertising was capable of imparting information. However, damage to a third person's property was not protected under the Charter Act. Section 15 is subject to lawful restrictions to protect property rights of other persons (persons given a wide interpretation to include corporations). Note the appellant in this case was also ordered to pay the respondent and Attorney General's costs .  
Victoria Police v Anderson (Max Brenner) The Magistrates' Court dismissed charges of trespass against 16 protesters demonstrating outside Max Brenner's Chocolate Bar. The Magistrate found any inconvenience to the public was not enough to warrant a prohibition on their right to demonstrate and express their political opinions under the Charter Act.    
Slaveski v Smith & Anor [2012] VSCA 25

Question of whether parliament intended by s 25(2)(d) or (f) of the Charter to convey that Victoria Legal Aid (VLA) must always exercise the power to grant legal aid favourably to an applicant that satisfies requirements. Held the power conferred on VLA is discretionary and the Charter Act does not extend VLA's obligations.

   
Taha v Broadmeadows Magistrates' Court [2011] VSC 642 Supreme Court used section 32(1) of the Charter in interpreting s 160(1) of the Infringements Act 2006 in overturning the decision of the Magistrates' Court to jail Mr Taha, an intellectually disabled man, noting the Magistrate was not made aware of his disability and did not consider sections 160(2) & (3) of the Act, which allow the making of special orders for offenders where circumstances require.      
WK v DPP [2011] VSCA 345

The Court of Appeal, in dismissing an appeal by the accused, found that, following the Momcilovic High Court decision, section 32 of the Charter Act could not be used to give section 6 of the Surveillance Devices Act 1999 a broader interpretation.

   

Momcilovic v The Queen [2011] HCA 34

The judgment discussed a number of important Charter Act issues, including:

* The constitutional validity of section 32 of the Charter Act (a majority of the Court found it was constitutionally valid).

*The constitutional validity of section 36 of the Charter Act (a majority of the Court found it was constitutionally valid).

* The role of limitations of rights under s 7 of the Charter in the functions under sections 32 and 36.

The first major decision on the Charter Act handed down by the High Court.

 

Director of Housing v Sudi [2011] VSCA 266 (6 September 2011)

The Court of Appeal overturned the decision of Bell J in VCAT (see Director of Housing v Sudi [2010] VCAT 328 (31 March 2010).

The Court of Appeal found that:

* The principal mechanism for challenging decisions of public authorities is through judicial review proceedings.

* While Charter Act issues may arise for determination in VCAT poceedings in other ways, the Charter Act does not confer upon VCAT a power to conduct a collateral review of a decision of the public authority.

* A separate ground of unlawfulness is required before a person can rely upon unlawfulness based upon a breach of section 38 of the Charter Act.

  VGSO Case Summary - Sudi

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

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.

Considered the application of sections 7, 32, 38 and 39. Also applied equality (8), movement (12), privacy (13) and property (20).

   

DPP v W [2011] VCC (2 May 2011)

It is the first case to find a breach of section 38(1) of the Charter Act by Victoria Police and the first case to find a public authority in breach of section 38(1) of the Charter Act by reason of a failure to give proper consideration to a relevant human right.

A breach of a public authority's obligations under s 38 of the Charter Act can be the basis for a application for exclusion of evidence under section 138 of the Evidence Act. However, whether the evidence will be admitted or excluded in a particular case will involve a balancing of the competing interests, in the same way as any other unlawfully or improperly obtained evidence.

Appealed to Court of Appeal, see WK v DPP [2011] VSCA 345  above. VGSO Case Summary - W

Secretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011) 

The Supreme Court held that a child welfare proceeding is a ‘civil proceeding’ to which the Charter of Human Rights applies.

Applied the rights of Families and Children (17), Cultural Rights (19) and Fair Hearing (24).

   

Cobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613 (8 October 2010)

VCAT ruled that a Christian resort  discriminated against a gay youth suicide prevention group by denying them access to its camping facilities because of their sexual orientation. Appealed to the Court of Appeal. Appeal is awaiting hearing.  

Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010)

Considers the application of section 32 and applies the right to equality (8).    
Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)

The Charter Act did not determine the issue before the Court.  Nevertheless, the judgment includes extensive comment on various Charter Act provisions including the rights to equality (8), privacy (13) and humane treatment when deprived of liberty (22) and also the meaning of "proper consideration" under section 38(1).

   

WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010); [2012] VSCA 159

Considers the right to privacy (13) in relation to the Sex Offences Registration Act 2004. Initially held registration was not incompatible with Charter Act. Appealed to the Court of Appeal. Held the Charter Act did not apply retrospectively to the Registration Act, but if it did, there was no incompatibility.  

Director of Housing v Sudi [2010] VCAT 328 (31 March 2010)

Considered the Director's obligations under section 38 of the Charter Act.

Applied the right to privacy (section 13).

Overturned on appeal to the Court of Appeal .  

R v Momcilovic [2010] VSCA 50 (17 March 2010)

Considered the meaning of the interpretive provision of the Charter Act (section 32).

Resulted in the first declaration of inconsistent interpretation under section 36 of the Charter Act.

Overturned on appeal to the High Court . However, much of the reasoning on s 32 of the Charter Act was confirmed by the High Court.

 

Metro West v Sudi [2009] VCAT 2025 (9 October 2009)

Section 4(c): Considered the meaning of ‘public authority’ and the application of the Charter Act to non-government bodies. The Victorian Civil and Administrative Tribunal held that a non-profit housing agency is a ‘public authority’  

Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009)

The Supreme Court found that a provision of the Major Crime (Investigative Powers) Act 2004 (Vic), which provides for the abrogation of the privilege against self-incrimination (25(2)(k)), must be interpreted as extending derivative use immunity to a person, so as to be compatible with human rights. SARC adopted Practice Note 3 subsequent to this decision.  

Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009)

 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).

Applied the right to a fair hearing (24).

Approach taken to s 32 of the Charter Act was not followed by the Court of Appeal in Momcilovic .