Your speakers:

Catherine RobertsManaging Principal Solicitor

Bruce ChenSolicitor

The Charter: What it means for administrative decision-making

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:

– 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

• 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 informationJoanna 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?