VCAT Charter Cases A Review The Honourable Justice Garde AO RFD, President of VCAT Paper delivered on 15 May 2013 to a seminar hosted by the Law Institute of Victoria 1. INTRODUCTION The Victorian Civil and Administrative Tribunal ( the Tribunal ) is Australia s largest administrative tribunal, with 89,470 originating applications in the 2011-2012 financial year. The Tribunal is a creature of statute, and has no jurisdiction to entertain any application unless such jurisdiction is explicitly conferred on it by an enabling enactment. The Tribunal currently has a dedicated Human Rights List within the Human Rights Division, which is an amalgamation of the old Health and Privacy, Mental Health, and Anti-Discrimination Lists. The new List hears matters under the Disability Act 2006, the Equal Opportunity Act 2010 and the Assisted Reproductive Treatment Act 2008, among others. Jurisdiction under the Charter of Human Rights and Responsibilities Act 2006 ( the Charter ) is enlivened in the Tribunal under two separate provisions. Firstly, under section 32(1), when interpreting and applying the provisions of a Victorian Act, the Tribunal is required to keep Charter rights in mind and consider whether the legislative provisions can be construed both consistently with their purposes and compatibly with human rights. Secondly, as a public authority when acting in an administrative capacity (under section 4), the Tribunal must not fail to give proper consideration to a relevant human right, under section 38(1) of the Charter. 2. LIMITATION S ON THE TRIBUNAL S JURISDICTION The Tribunal does not have the power to entertain any claim in relation to the Charter, however. This is demonstrated clearly in the case of Director of Housing v Sudi. 1 In this case, the Director applied to the Tribunal under section 344 of the Residential Tenancies Act 1997 ( the RTA) for a possession order against Mr Sudi, on the basis that the Director was entitled to possession. The granting of a possession order would effectively deprive Mr Sudi and his son of their accommodation. Mr Sudi argued that the Director s decision to apply for the order was made in breach of the Charter, and therefore that the Tribunal should dismiss the proceedings. This argument was accepted, with the Tribunal finding that where the making of the application itself is unlawful, it has no jurisdiction to hear and determine the application and make the possession order. 2 As the Director s decision to apply for the possession order was considered to have been made in breach of the Charter, the matter was dismissed. 1 [2010] VCAT 328 (31 March 2010). 2 Ibid [121]. President s Chambers 55 King Street Melbourne VIC 3000 Page 1 of 5
On appeal to the Court of Appeal, 3 however, it was held that this was not a valid exercise of jurisdiction on the part of the Tribunal. The Court found that the Tribunal has no jurisdiction to determine whether the Director s administrative decision was made in compliance with the Charter where there was no jurisdiction to review the decision independently of the Charter. Rather, in deciding whether to grant the order of possession, the Tribunal could only consider whether the Director was entitled to possession and whether there are reasonable grounds for believing that a person is occupying the premises without licence or consent, as outlined in the RTA. 4 As such, Mr Sudi could only pursue his complaint of the Director s non-compliance with the Charter in the Supreme Court. 3. COMMON APPLICATIONS OF THE CHARTER As expected, the Charter is most commonly considered in the Human Rights List, particularly in proceedings under the Equal Opportunity Act 2010 ( the EOA ) and the Mental Health Act 1986 ( the MHA ). The most well-known application of the Charter under the MHA is that of Kracke v Mental Health Review Board. 5 This case is particularly complex and deserving of a study on its own, so I will not go into the details of the matter here. The other context in which the Charter is most commonly considered is in applications for an exemption under section 89(5)(a) of the EOA. Applications under this section are typically made to allow a business to discriminate on a particular basis for the purposes of employment. In this context, the Charter is used to balance the right to equality with the justification given by the applicant in the application for the exemption. An important case in this area is the matter of Cobaw Community Health Services Ltd v Christian Youth Camps Ltd. 6 Given that the proceeding is before the Court of Appeal, and reserved for judgment, I will not speak about the issues involved. The decision will have wide-spread significance, as it will determine the extent to which the Charter can and should be applied in the application and interpretation of the EOA. a. DISCRIMINATION Two cases serve to demonstrate the competing interests that will be considered by the Tribunal in applications for an exemption under section 89(5)(a). The first is the case of Georgina Martina Inc., 7 in which the applicant was seeking an exemption from the Tribunal to allow it to engage in gender discrimination. The applicant ran a high security, 24-hour women s refuge facility, and was seeking to employ only women and offer services and accommodation only to women and their children. The second case is the matter of Travel Sisters, 8 in which the applicant sought an exemption from the Tribunal to be able it to advertise and organise tours and trips for women only. Under section 90 of the EOA, the Tribunal is required to consider whether the proposed exemption is a reasonable limitation on the right to equality as set out in the Charter. In Georgina Martina Inc., 9 it was argued that women in crisis were 3 Director of Housing v Sudi [2011] VSCA 266 (6 September 2011). 4 Residential Tenancies Act 1997 (Vic) s 345. 5 (2009) 29 VAR 1. 6 [2010] VCAT 1613 (29 June 2010). 7 [2012] VCAT 1384 (12 September 2012). 8 [2009] VCAT 2427 (17 November 2009). 9 [2012] VCAT 1384 (12 September 2012). President s Chambers Page 2 of 5
demonstrably in need of a different range of services when compared with men who were in crisis. Furthermore, it was demonstrated that the primary use of such facilities was by women who had suffered family violence. Due to their particular circumstances, and particularly due to the possible trauma involved in having close contact with men after such violence has been suffered, the Tribunal granted the exemption. In Travel Sisters, 10 similar arguments were advanced in relation to the benefits of the female-only tours and trips. The applicant pointed to the past decision of Morris, 11 where the applicant was granted an exemption by the Tribunal. In both cases, it was argued that the exemption was justified on the following bases: Women who felt uncomfortable travelling alone would feel safer in a group of women; Services and itineraries could be tailored to women s interests; Partners would be more comfortable with their girlfriends/wives travelling in a group without any males present; Women may feel uncomfortable around men for cultural or religious reasons; and Women who have suffered any kind of sexual or domestic abuse would be uncomfortable travelling with men. These grounds were accepted as sufficient for the Tribunal to grant an exemption in Morris. 12 However, in Travel Sisters, 13 the Tribunal considered that the exemption should not be granted. The most significant difference between the cases was the fact that it had become necessary to assess exemption applications in light of the Charter since Morris was decided. 14 The Tribunal noted that the new framework required it to apply a very stringent test in deciding whether or not an exemption should be granted. 15 The test was met in Georgina Martina, where the safety and security concerns ran to the core of the services being provided, but not in the case of Travel Sisters, where the concerns reflected a mere preference on the part of the women who would be involved in the trips. 4. OTHER CHARTER APPLICATIONS While matters in the Human Rights List most commonly involve Charter arguments, the Charter has been argued and considered in a number of other jurisdictions within the Tribunal. a. ADMINISTRATIVE MATTERS In Caripis v Victoria Police, 16 the applicant complained of the conduct of the police in taking and subsequently retaining images of her presence at a protest. The applicant wanted the images destroyed under the Information Privacy Act 2000 ( the IPA ), 17 and argued that the police s failure to do so interfered with her right to privacy under the Charter. However, section 6(1) of the IPA emphasises the paramountcy of other 10 [2009] VCAT 2427 (17 November 2009). 11 [2007] VCAT 380 (9 March 2007). 12 Ibid. 13 [2009] VCAT 2427 (17 November 2009). 14 Ibid [13]. 15 Ibid [32]. 16 [2012] VCAT 1472 (27 September 2012). 17 Under s 14 of the IPA, an act of an organisation is an interference with privacy if it is contrary to an Information Privacy Principle (IPP) as outlined in Schedule 1 to the IPA. Ms Caripis argued that the retention of the images was contrary to IPP 4.2, which states that an organisation must take reasonable steps to destroy personal information if it is no longer needed for any purpose. President s Chambers Page 3 of 5
legislation over the IPA. Section 19 of the Public Records Act 1973 ( the PRA ) provides that it is an offence to damage or destroy a public record unlawfully, and outlines the circumstances in which a public document can be lawfully destroyed. In this case, it was held that the ordinary construction of the relevant legislation was not inconsistent with human rights as they were outlined in the Charter, and the police were able to retain the images under the PRA. In Pham & Anor v Clark & Anor, 18 Mr Pham applied for a review of a decision of the principal registrar to reject an application filed against Members of the Tribunal under section 71 of the Victorian Civil and Administrative Tribunal Act 1998 ( the VCAT Act ). The principal registrar had rejected the application on the basis that it would be a fundamental breach of the rules of natural justice for the Tribunal to entertain a complaint directly relating to Tribunal Members. Mr Pham argued that this decision breached his right to a fair hearing and his right to seek relief on a ground of unlawfulness arising because of the Charter. The Tribunal held that section 71, given its ordinary meaning, could be read compatibly with the Charter. It was considered that the limitation of Mr Pham s rights by the decision of the principal registrar was justified under section 7(2) of the Charter, and the application was dismissed. b. PLANNING In Smith v Hobson s Bay City Council, 19 the Tribunal was asked to consider whether the deletion of a condition of a planning permit, which had originally required a balcony screen to be erected, was in breach of the applicant s right to privacy under the Charter. It was argued that the planning scheme, as it dealt with the issue of overlooking, was incompatible with the Charter and therefore that the permit condition requiring the screen should be imposed so as to be compatible with Charter rights. However, the Tribunal noted that the right to privacy under the Charter is qualified, in that a person has the right not to have their privacy interfered with unlawfully or arbitrarily. In this case, it was held that the provision in the planning scheme was neither unlawful nor arbitrary. Alternatively, if the planning scheme did unlawfully or arbitrarily limit the right to privacy, then this limitation was justified under section 7(2) of the Charter. c. CIVIL PROCEDURE In Guss v Aldy Corporation & Anor, 20 Ms Guss applied for the Tribunal to re-open an order that was made at a compulsory conference under section 120 of the VCAT Act. This section allows for an order to be reviewed where the person did not appear and was not represented at the hearing at which the order was made. It was argued that the Charter required this provision to be interpreted widely, with a compulsory conference being included as a hearing for the purposes of the section. The Tribunal held that, on a proper construction of the VCAT Act, review under section 120 was available where a party did not appear and was not represented at a compulsory conference. This was considered appropriate first on the basis of the process that is undertaken in making appropriate orders in the absence of a party to the matter, and secondly on the basis that it was a remedial provision and so should be construed liberally. 21 Charter considerations were a third reason to construe the term hearing in section 120 as including a compulsory conference, 22 and so further emphasised and underpinned the original legislative intention. 18 [2012] VCAT 801 (13 June 2012). 19 (2010) 175 LGERA 221. 20 [2008] VCAT 912 (1 May 2008). 21 Ibid [25]-[26]. 22 Ibid [33]. President s Chambers Page 4 of 5
5. COMMON THEMES In many of the above cases, it can be seen that the application of the Charter runs together with the ordinary construction of the Act, with both considerations reflecting a similar underlying legislative intention. This can also be seen in a recent Supreme Court case involving an appeal from the Children s Court. 23 The Children s Court had ordered that the children involved in the proceeding were not mature enough to be represented on the basis of direct instructions. In that case, I held that an application of the Charter was not necessary, as the ordinary meaning given to the relevant provisions under the principles of construction was fully consistent with the rights contained in the Charter. This outcome is to be expected and is, to a certain extent, welcome, as it demonstrates that the ordinary construction and original intention underpinning the legislation considered was already in accordance with the relevant human rights. The enactment of the Charter has merely made explicit the previously implicit human rights considerations supporting the legislative provisions as drafted, requiring a departure from what the legislation would otherwise require only in rare cases. 6. CONCLUSION In spite of the limitation of the Tribunal s jurisdiction to hear Charter arguments by the Court of Appeal in Sudi, 24 the Charter continues to be considered regularly in the Tribunal. While this occurs most often in relation to discrimination matters and mental health matters in the Human Rights List, the Charter has been considered across many jurisdictions within the Tribunal and, even where it does not apply directly to the subject-matter of the dispute, can be considered in relation to process and procedure in the Tribunal as demonstrated by Guss, 25 discussed above. 23 A & B v Children s Court of Victoria [2012] VSC 589 (5 December 2012). 24 Director of Housing v Sudi [2011] VSCA 266 (6 September 2011). 25 [2008] VCAT 912 (1 May 2008). President s Chambers Page 5 of 5