Recent s 38 cases
One of the ways in which the Charter seeks to affect the exercise of public power is through s 38, which imposes an obligation on public authorities to act in a way that is compatible with human rights and to give proper consideration to human rights when making a decision. These obligations have been considered recently in three cases coming out of the Supreme Court. Briefly, these cases involved:
- VCAT's failure to act compatibly with the rights of two patients to equality, privacy, and freedom from non-consensual medical treatment under ss 8, 13 and 10 when assessing their mental capacity to refuse electro-convulsive treatment (PBU & NJE v Mental Health Tribunal);
- a police officer's failure to act compatibly with an Italian speaker's right to equal and effective protection against discrimination under s 8 in conducting a police interview without an interpreter present (DPP v Natale (Ruling)); and
- a prison governor's failure to properly consider a prisoner's rights to religion and expression under ss 14 and 15 when deciding to withhold four tarot cards required for his practice of paganism (Haigh v Ryan).
Given the importance of public authorities properly considering relevant human rights in decision-making, the SG focused on the question — what does 'proper' consideration mean? The obligation in s 38 enforces a higher benchmark than the common law requirement to take account of relevant considerations, however, there is ambiguity regarding the standard it requires. The SG provided some guidance, referring to principles from Castles v Secretary, Bare v IBAC and Certain Children (No 2). She also highlighted the importance of recording Charter considerations during the decision-making process (including in the written record and affidavits), getting the facts right, obtaining legal advice (although noting that this may increase the standard required for proper consideration) and ensuring that the exercise is not a mere 'mantra' or formula.
There is no one-size-fits-all method to fulfil the requirements of s 38; instead, what is required is a case-specific, calibrated exercise that will depend on the powers being exercised, the rights and interests engaged, and the circumstances of the individual whose rights may be affected. These requirements reflect the underlying purpose of the Charter, which is to create a normative effect on the everyday conduct of public authorities and to institute a culture of human rights in government decision-making.
In addition to discussing the meaning of proper consideration under s 38, the SG highlighted some of the complexities that still surround the operation of the Charter. These include:
- the application of the Charter to courts under s 6(2)(b), considered in the recent case of Cemino v Cannan, where it was held that the Magistrates' Court had an obligation to apply the Charter, not as a public authority but as a court exercising judicial power to the extent that its functions pertained to relevant human rights;
- whether an assessment of the compatibility of a statutory provision with human rights (under s 32) should involve consideration of the reasonable limitation of those rights (under s 7(2)), an issue which arose in the recent case of DPP v Rayment; and
- the requirements of s 39, which allow a person to bring a claim for unlawfulness under the Charter if certain conditions are met
The SG concluded by looking to the future of the Charter. In particular, she considered the effect that the introduction of the Human Rights Act in Queensland would have on the Victorian Charter. Finding the two acts to be broadly similar, the SG commented that the Queensland Act is a welcome development that will assist in the interpretation of the Victorian Charter as well as enrich human rights jurisprudence in Australia.
To find out more contact:
Managing Principal Solicitor
Victorian Government Solicitors Office
T: 03 86840247
Victorian Government Solicitors Office
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