Allens Arthur Robinson

Litigation & Dispute Resolution

Focus: Victorian Charter of Human Rights

28 April 2009

In brief: Recently, the Victorian Civil and Administrative Tribunal handed down a decision setting out in detail how the Charter of Human Rights and Responsibilities Act 2006 (Vic) is to be used to interpret legislation. Further to our Focus in October 2006 covering the general provisions of the legislation, Partner Belinda Thompson (view CV), Senior Associate Rachel Nicolson and Lawyer Monique Carroll discuss the impact of the decision and its importance for interpreting legislation in Victoria.

How does it affect you?

  • The protection afforded to human rights contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) should be considered by all public and private sector entities when determining the meaning of legislation in Victoria.
  • The human rights protected by the Charter are to be given their full operation as permitted by law, and cannot be limited in their application by public authorities.
  • The full body of international law is relevant to the meaning of Victorian legislation and to determining the humans rights obligations of public authorities.

Background

While there have been various decisions concerning the operation of the Charter since it came into force on 1 January 2007, Kracke v Mental Health Review Board is the most significant decision to date that considers how the Charter is to be used in interpreting legislation.

In this case, Mr Kracke (the applicant) was subject to involuntary medical treatment for mental illness under the Mental Health Act 1986 (Vic) (the Act) under a Community Treatment Order (CTO). The question for the Victorian Civil and Administrative Tribunal was whether the CTO remained validly in place over the applicant even though the Mental Health Review Board (the MHRB) had not conducted a review of whether the applicant was properly the subject of a CTO, within the time specified in the Act.

The Human Rights Law Resource Centre, for which Allens acted on a pro bono basis, made submissions as to how the Act should be interpreted in a manner most consistent with the human rights protected by the Charter.

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Taking the Charter into account when interpreting legislation

It is now clear from Kracke that when legislation construed using general principles has a meaning not consistent with the human rights protected by the Charter that legislation must be re-interpreted using section 32(1) of the Charter. This requires that, so far as possible, consistent with their purpose, all statutory provisions be interpreted in a manner consistent with the human rights protected by the Charter. If consistency can not be achieved this way, the Supreme Court of Victoria has the power to make a declaration of inconsistency.

Further, Justice Bell held that the Charter gives permission to consider the full range of international law – not just treaties and conventions – relevant to a human right protected by the Charter in interpreting legislation in Victoria.

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Obligations of public authorities

As the MHRB is a public authority for the purposes of the Charter, it is required to act in a way that is compatible with human rights in the Charter. Justice Bell held that this required the MHRB to act compatibly with Mr Kracke's right to a fair hearing as protected by the Charter and that it had failed to do so, by failing to conduct a hearing within a reasonable time. As such, Justice Bell made a declaration that the MHRB had breached Mr Kracke's human rights in this regard.

Importantly, Justice Bell applied broad meanings to the terms 'civil proceeding' and 'tribunal' as used in the Charter. As such, it is possible that a range of tribunal bodies or boards, as public authorities, will be required to act compatibly with the Charter. Conversely, it is also clear that courts and tribunals which are acting judicially and thus are not public authorities, are only bound to act in accordance with the limited range of human rights in the Charter affecting their functions and powers under the Charter.

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Human rights and international law

The Kracke case requires the human rights contained in the Charter and their scope, as influenced by the full range of international law, to be considered when interpreting all legislative provisions in Victoria. In this way, the decision expands the application of international law to statutory interpretation in Victoria.

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Ramifications for the private sector

The obligation on public authorities to make decisions giving proper consideration to relevant human rights will extend in influence to those corporations who are not public authorities under the Charter, but whose operations are subject to decisions of a public authority.

For instance, any public authority that is responsible for statutory leases or licensing arrangements will be required to make the decision to grant the lease or licence giving proper consideration to relevant human rights in the Charter. As such, corporations that rely on decisions of public authorities should ensure that their projects, activities and operations align with the rights in the Charter to avoid the possibility of the public authority decisionmaker deciding against the interests of the corporation to ensure that it complies with its obligations under the Charter.

Further, where corporate conduct is regulated by any Victorian statute, those statutory provisions will be subject to an interpretation that is consistent with the human rights protected by the Charter. It is therefore important for corporations to understand what that interpretation might entail.

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Conclusion

There are now new principles governing the interpretation of legislation in Victoria which necessitate that the protection afforded to the human rights contained in the Charter be considered by everyone, whether operating in the private or public sphere, when determining the meaning of legislation in Victoria and the permissible conduct of public authorities as defined by the Charter. It is also now clear that the full range of international human rights law is relevant in determining the extent of permissible conduct of entities regulated by legislation in Victoria.

Published 28 April 2009

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