The Charter:
What it means for
administrative
decision-making
Your speakers:
Catherine Roberts
Managing Principal
Solicitor
Bruce Chen
Solicitor
What will this workshop cover?
Generally:
•
Overview of the Charter
•
Public authorities (s 4)
•
Conduct of public authorities (s 38)
•
Interpretation (s 32)
•
“Seeking” relief or remedy & “unlawfulness” (s 39)
What will this workshop cover?
Specific issues:
• VCAT as a public authority
• Subordinate legislation
• Statutory discretions and authorisations
• Deference and weight
• Scope for challenging decisions
• Potential administrative law remedies
Overview of the Charter
• Statutory bill of rights
• Promotes and protects human rights by:
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Setting out human rights Parliament seeks to protect
Ensuring statute interpreted compatibly with human rights
Imposing obligation on public authorities to act compatibly
Requiring statements of compatibility for Bills
• Dialogue model
• In Australia, unique to Victoria and ACT
Public authorities
• VGSO clients usually will be a public authority:
see s 4(1) categories
• Do exceptions apply?
• VCAT will be a public authority when acting in an
administrative capacity: s 4(1)(j)
Conduct of public authorities
• s 38(1) – two limbs
– Procedural obligation: must not ‘fail to give proper consideration to a
relevant human right’
– Substantive obligation: must not ‘act in a way that is incompatible with a
human right
• s 38(2) exception – where ‘could not reasonably have acted
differently or made a different decision’
• s 38(3) exception – does not apply to act or decision ‘of a private
nature’
Conduct of public authorities
•
Subordinate legislation
– Section 32(3)(b)
• s 32(1) ‘does not affect the validity of … a subordinate instrument or
provision that is incompatible with a human right and is empowered
to be so by the Act under which it is made.’
– What does this mean for s 38(2)?
Conduct of public authorities
• ‘Proper consideration’
– Not a ‘sophisticated legal exercise’: Castles v Secretary, DOJ
– Whether has ‘seriously turned his or her mind to the possible impact of
the decision on a person’s human rights and the implications thereof for
the affected person, and that the countervailing interests or
obligations were identified’: Castles v Secretary, DOJ
– Not expected to approach it like a judge ‘with textbooks on human rights
at their elbows’: PJB citing R (SB) v Denbigh High School (UK HL)
Conduct of public authorities
• Act compatibly
– Scope of right
– Assess whether right limited
– Section 7(2) – justification and proportionality
• Role in s 38: in our view, only incompatible if any limit imposed is
not reasonable and unjustified
• See:
– PJB
– implicit support in Momcilovic per Gummow, Hayne, Heydon and Bell
JJ
Straying into merits review?
• Proportionality analysis more rigorous than for eg.
Wednesbury unreasonableness
• ‘[D]raws the court more deeply into the facts, the balance
which has been struck and the resolution of the
competing interests’: PJB at [317]
• Matter of ‘deference’, ‘weight’ and ‘latitude’: PJB
Interpretation
• Section 32(1):
– Applies to all decision-makers, including the courts
– Reflects the principle of legality: Momcilovic v R
• The Court of Appeal applying Momcilovic, in Slaveski v Smith at
[24]:
[I]f the words of a statue are clear, the court must give them that meaning. If
the words of a statute are capable of more than one meaning, the court should
give them whichever of those meanings best accords with the human right in
question. Exceptionally, a court may depart from grammatical rules to give an
unusual or strained meaning to a provision if the grammatical construction would
contradict the apparent purpose of the enactment. Even if, however, it is not
otherwise possible to ensure that the enjoyment of the human right in question is not
defeated or diminished, it is impermissible for a court to attribute a meaning to a
provision which is inconsistent with both the grammatical meaning and
apparent purpose of the enactment.
Interpretation
• Section 7(2) – justification and proportionality
– Role in s 32? Unsettled
– No binding approach in Momcilovic; awaiting Court of
Appeal re a definitive position
Interpretation
• Broad statutory discretions
– Issue: does s 32(1) confine statutory discretions so as
to act compatibly with human rights?
– Section 38(1) clearly does.
– Why does it matter in administrative law?
Section 39
• ‘If, otherwise than because of this Charter’ … may ‘seek any relief or
remedy on a ground of unlawfulness’ arising because of Charter
• Director of Housing v Sudi
– Not a free-standing cause of action
– Judicial review as the usual avenue for challenge
– Does not enlarge VCAT’s jurisdiction
Section 39
• ‘Unlawfulness’
– Issue: in the strict admin law sense, or broader
concept?
– For eg. VCAT’s broad jurisdiction dealing with many
areas where actions prohibited by an Act
– See Caripis v Victoria Police
Section 39
• Ramifications of breach in administrative law
proceedings
• Same as jurisdictional error? Relatively undecided.
• See:
– PJB
– Director of Housing v Sudi [49] per Warren CJ
– Bare (decision reserved)
• Application of Project Blue Sky
Case citations
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Caripis v Victoria Police [2012] VCAT 1472
Castles v Secretary, DOJ [2010] VSC 310
Director of Housing v Sudi [2011] VSCA 266
Kracke v Mental Health Review Board (2009) 29 VAR 1
Lifestyle Communities Ltd (No 3) [2009] VCAT 1869
Magee v Delaney [2012] VSC 407
Momcilovic v R (2011) 245 CLR 1
Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors
[2012] VSCA 91
PJB v Melbourne Health & Anor (Patrick's case) [2011] VSC 327
Slaveski v Smith [2012] VSCA 25
XYZ v Victoria Police [2010] VCAT 255
Further information
Joanna Davidson, Special Counsel
•
8684 0899 and joanna.davidson@vgso.vic.gov.au
Catherine Dixon, Special Counsel
•
catherine.dixon@vgso.vic.gov.au
Catherine Roberts, Managing Principal Solicitor
•
8684 0261 and catherine.roberts@vgso.vic.gov.au
Jessica Cleaver, Acting Managing Principal Solicitor
•
8684 0247 and jessica.cleaver@vgso.vic.gov.au
Eleanor Thomas, Senior Solicitor
•
8684 0431 and eleanor.thomas@vgso.vic.gov.au
Bruce Chen, Solicitor
•
8684 0425 and bruce.chen@vgso.vic.gov.au
Questions?