Charter Rights and when they may be limited ~ Section 7

Section 7 introduces the Charter rights that form the remainder of Part 2, and sets out the test for when those rights may be limited.
Section 7(1) states that rights contained in the remainder of Part 2, ss 8 – 27, are those that Parliament specifically seeks to promote and protect.
Section 7(2) provides for the limitation of these Charter rights. The section sets out a test for when Charter rights may be limited, which includes a number of factors that must be considered. For more information, see 5.2. Limitations test under s 7(2).
The application of s 7(2) remains somewhat controversial, particularly its interaction with the process of statutory interpretation under s 32(1). However, in the context of statements of compatibility and conduct by public authorities, it is generally accepted that where a limit on a Charter right is justified under s 7(2), that limit is ‘compatible’ with the Charter right.
Section 7(3) clarifies that the Charter does not give any person, entity or public authority a right to limit Charter rights, other than as provided for in the Charter, or to destroy Charter rights

Limitations test under s 7(2)

Introduction

Section 7(2) provides that Charter rights:
may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including:

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
Section 7(2) is a general limitations clause that applies to all the Charter rights. Limitations on Charter rights are permissible, that is, compatible with the right in question, only when they comply with s 7(2) (ReApplication under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 [144]).
Section 7(2) recognises that Charter rights are not absolute and must be balanced against one another and against other competing private and public interests. The factors envision a balancing or proportionality exercise between the protection of Charter rights (which may conflict with one another) and the need to limit those rights to achieve other legitimate purposes (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [307]–[308]).
For this reason, the test under s 7(2) is known as a ‘proportionality’ analysis (see, eg, Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 [22] (French CJ)).
The proportionality analysis was included in recognition of the necessity that some laws limit Charter rights, for example, laws that protect security, public order, public safety or public health and which are justified in a free and democratic society. The proportionality analysis was also meant to apply in widely recognised situations of justified human rights limitations. These include, for example, situations where consent to medical treatment might not be possible, such as in an emergency, or where the right to freedom of movement is limited by a properly made order of detention (Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1291 (Rob Hulls, Attorney-General)).
Consideration of Charter rights and their limitations may arise in many situations. The general limitations provision reflects this fact, by allowing each situation to be determined in accordance with the test in s 7(2). This allows for a principled but flexible approach to limits on Charter rights, and was considered preferable to limitations operating on right-specific basis (Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1291 (Rob Hulls, Attorney-General); Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 8).
Interaction between s 7(2) and specific limitations
A number of Charter rights also contain their own internal limitations. Cases have identified two approaches on how internal limitations on Charter rights interact with the general limitations clause in s 7(2).
On one approach, internal limitations reduce the scope or ‘plain state’ of the right. If the conduct in question is found to meet the requirements of the specific or internal limitation, the right is not considered to be ‘limited’, and so the general limitations analysis in s 7(2) will not be relevant (Magee v Delaney (2012) 39 VR 50; [2012] VSC 407 [157] (s 15); LM [2008] VCAT 2084 [117] (s 21); PJB v Melbourne Health (Patrick's case) (2011) 39 VR 373; [2011] VSC 327 [74]-[75] (s 13)).
The alternative approach, set out in Kracke, is that internal limitations within the Charter rights themselves should be considered as part of a general limitations analysis under s 7(2). They should be ‘seen as an indication of what might be considered in determining whether any limitations are reasonable and justified’, rather than to reduce the nature and content of the right in its ‘plain state’ (Kracke v Mental Health Board (2009) 29 VAR 1; [2009] VCAT 646 [109]-[110]); AC [2009] VCAT 1186 [122]-[123]).
Bell J reconsidered the view he expressed in Kracke, in response to caselaw stating that s 7(2) does not form part of the process of interpretation required by s 32(1) of the Charter (PJB v Melbourne Health (Patrick's case) (2011) 39 VR 373; [2011] VSC 327 [74]-[75]). In McDonald v Legal Services Commissioner (No 2)[2017] VSC 89, however, Bell J returned to his initial position in Kracke, stating that internal limitations such as s 15(3) do not reduce the substantive scope of a right. On this approach, rights are to be construed broadly before any proportionality analysis occurs. Internal limitations will complement and inform the application of s 7(2) (McDonald v Legal Services Commissioner (No 2) [2017] VSC 89 [31]-[36]).
Following the High Court decision in Momcilovicv The Queen (2011) 245 CLR 1; [2011] HCA 34, it remains an open question as to whether s 7(2) forms part of the interpretative process.
For more information, the internal limitations on Charter rights are discussed under the individual Charter rights where they exist, for example, s 15 (freedom of expression).
Application
Section 7(2) is the mechanism for deciding whether a limit on a Charter right is nonetheless ‘compatible’ with that right. Where a right is justifiably limited in terms of s 7(2), ‘then action taken in accordance with that limitation will not be prohibited under the [C]harter, and is not incompatible with the right’ (Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1291 (Rob Hulls, Attorney-General)).
The concept of ‘compatibility’ with Charter rights comes up in relation to the operative provisions of the Charter, dealing with interpreting legislation, the acts of public authorities and the assessment of Bills prior to their enactment (ss 28, 30, 31, 32,38).
These provisions are foreshadowed in s 1 of the Charter. Section 1(2)(b) – (d) states that:
(2) The main purpose of this Charter is to protect and promote human rights by—

…

(b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and

(c) imposing an obligation on all public authorities to act in a way that is compatible with human rights; and

(d) requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; …

Threshold requirement: limitation of Charter rights
Section 7(2) applies to determine whether a limit on a Charter right is nonetheless compatible with that right. It is therefore only engaged when a Charter right is limited, by legislation, for example, or by the act of a public authority. There are three stages to the enquiry as to whether certain conduct or law is incompatible with Charter rights:
1. Has a Charter right been engaged?
2. If so, has any limitation been imposed on the right?
3. If so, was the limitation reasonable and justified under s 7(2)?
Regarding the first of these enquiries, the engagement question, Charter rights should be given a broad construction:
The Charter supports the approach that rights should be construed in the broadest possible way before consideration is given to whether they should be limited in accordance with s 7(2) of the Charter. That section serves the purpose of mitigating any damage to society that may arise from upholding an individual’s right (Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 [80]).
However, it may be that the conduct or statute in question does not fall within the scope of the relevant right at all. For example, in Magee v Delaney (2012) 39 VR 50; [2012] VSC 407, the Court found that the right to freedom of expression in s 15(2) does not include expression in the form of damage to a third party’s property or a threat of such damage. Where no Charter right is relevant, there is no question of its limitation and s 7(2) is not applicable (Magee v Delaney (2012) 39 VR 50; [2012] VSC 407 [157]).
Statutory interpretation
Section 32(1) deals with statutory interpretation under the Charter. It requires that:
So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
When a particular statutory provision limits Charter rights, s 7(2) can be applied to determine whether the limit in question is reasonable and justified.
However, following the High Court decision in Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34, it is an open question as to whether this analysis under s 7(2) forms part of the interpretative process or whether it is a separate subsequent analysis.
For more information, see ‘The interaction between s 32(1) and s 7(2)’ in 2.2. Statutory interpretation (s 32).
Obligations on public authorities
Section 38(1) requires public authorities to observe Charter rights. It states that:
it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
The section imposes two obligations, the obligation to give proper consideration to Charter rights when making a decision (the procedural limb) and the obligation to act compatibly with Charter rights (the substantive limb).
When a public authority is making a decision, proper consideration of Charter rights under the procedural limb of s 38(1) includes consideration of whether any limitations on Charter rights caused by the decision are justified in terms of s 7(2). When courts review the decisions of public authorities for compliance with s 38(1), they must therefore examine whether this consideration was properly given (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [217], [221]–[222] (Warren CJ); [279]-[280] (Tate JA), [535] (Santamaria JA); PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [311]; Castles v Secretary of the Department of Justice (2010) 28 VR 141; [2010] VSC 310 [185]–[186]).
The requirements of this procedural limb of s 38(1) can be summarised as follows. The decision maker must:
1. understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision;
2. seriously turn 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;
3. identify the countervailing interests or obligations; and
4. balance competing private and public interests as part of the exercise of justification (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [220]–[224] (Warren CJ), [288]–[289] (Tate JA), [538], [559] (Santamaria JA)).
Under the substantive limb, when courts review the acts of public authorities for compliance with s 38(1), they will need to assess whether the act limited any Charter rights and if so, whether the limits on Charter rights are justified under s 7(2). If the limits are justified under s 7(2), the act in question will be compatible with Charter rights and will comply with s 38(1) (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR; [2011] VSC 327 [306], [309]–[312]; Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [70], [135]).
For more information, see 3.2. Obligations on public authorities (s 38).
Assessing new legislation
When a Bill is introduced to Parliament in Victoria, the Charter requires that the Member of Parliament introducing the Bill and the Scrutiny of Acts and Regulations Committee (SARC) each make a statement as to the Bill’s compatibility with Charter rights (ss 28, 30).
Legislation ‘compatible’ with Charter rights in this context is understood to include legislation that limits Charter rights if that limitation is justified in terms of s 7(2).
Requirements
Section 7(2) sets out a number of distinct requirements. A limit on a Charter right must be:
- under law; and
- reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom.
The conclusion that a limit is reasonable and justified must be reached after weighing up all the relevant factors, including those listed in s 7(2)(a)–(e).
Onus and standard of proof
The limitation must be demonstrably justified, which, in proceedings, will generally call for evidence in accordance with the civil standard of proof, by the party seeking to rely on the limitation (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [310]; Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381[147]; Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251 [175], [200] (‘Certain Children (No 2)’)).
Section 7(2) is a stringent standard of justification, requiring ‘cogent and persuasive’ evidence, given what needs to be justified (Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 [164], citing R v Oakes [1986] 1 SCR 103, 42; see also R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50; PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [332]; Certain Children (No 2) [2017] VSC 251 [175], [203]).
While the civil standard of proof applies, the standard of evidence required to justify an act or decision may differ depending on the circumstances of the case. For example, it may be more difficult to justify a limitation when the limitation affects the Charter rights of vulnerable groups such as children (see, eg, Certain Children (No 2) [2017] VSC 251 [203]).
In exceptional circumstances the justification for limiting a Charter right, by the means used, may be self-evident (R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 [146]).
Under law (legality)
The first requirement of s 7(2) is that the limitation be ‘under law’, known as the legality requirement (Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [107]; Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 [318].
The Attorney-General, referring to s 7 in his second reading speech, said it was ‘intended that the law in this context includes limitations specified by the common law as well as by statutory provisions’ (Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1291 (Rob Hulls, Attorney-General); see also Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [742]; Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 8).
However, whether ‘under law’ in s 7(2) includes the common law has been described as an open question of statutory construction (Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 [165] (Gummow J)).
In Kracke, the legality requirement was found to encompass both procedure and substance. Any limitation of a Charter right must be in accordance with procedure prescribed by law (the procedural requirement), and compatible with the rule of law, that is, sufficiently certain, accessible, and non-arbitrary (the substantive requirement) (Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [163], [165], [744], citing the Canadian Charter of Rights and Freedoms, s 1; Bill of Rights Act 1990 (NZ), s 5; Constitution of the Republic of South Africa Act 1996, s 36(1)).
Similarly, in Certain Children (No 2), John Dixon J agreed with the plaintiff’s submission that ‘under law’ requires ‘that any limiting act must conform with the legislation that authorised the decision maker’s action, and any limit on human rights that is not [in accordance] with the law relied upon to authorise the limit on the right cannot be said to be ‘under law’ for the purposes of s 7(2)’ (Certain Children (No 2) [2017] VSC 251 [202]).
Proportionality
The second requirement of s 7(2) is that limits on Charter rights must be ‘reasonable’ and ‘justified in a free and democratic society based on human dignity, equality and freedom’. This requirement is known as the proportionality test (see, eg, Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 [22] (French CJ)).
Proportionality is a well-known mechanism for determining the extent of allowable limits on human rights. For example, s 7(2) is modelled on s 36 of the South African Bill of Rights contained in the Constitution of the Republic of South Africa 1996 and s 5 of the Bill of Rights Act 1990 (NZ) (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 9).
Section 7(2) also ‘broadly correspond[s] to the proportionality test in Oakes’, a decision of the Supreme Court of Canada and a leading international authority on the concept of proportionality (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [308], citing Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 [148]).
The proportionality test requires ‘all relevant factors’ to be taken into account, and these factors specifically include those listed in s 7(2)(a)–(e). However, courts are not limited to those factors, and other criteria may be considered. The test remains a global one of justification in a free and democratic society rather than a check-list of the listed factors (Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [133], see also Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [620] (Santamaria JA); R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 [147]).
The phrase ‘free and democratic society based on human dignity, equality and freedom’ reflects the founding principles of the Charter articulated in the Preamble. The proportionality analysis ‘serves the purpose of mitigating any damage to society that may arise from upholding an individual's right’ (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [160] (Warren CJ), citing Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 [80]: see also, eg, Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [142]).
The concept of a free and democratic society encompasses principles such as respect for the dignity of individuals, social justice and equality, cultural identity, and participation in social and political institutions. The concept is the source of Charter rights and is the standard against which limits on those rights must be measured; it is ‘the fundamental hallmark of our system of governance and way of life’ (Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 [80]; quoting R v Oakes [1986] 1 SCR 103, 40).
The proportionality test requires looking at the relationship between the limits on Charter rights in question and the social advantages that are offered as justification for those limits, that is, whether the end justifies the means. For example:
It seems a matter of logic that the measures adopted in limitation of the right must be of sufficient importance to [] uphold a free and democratic society to justify limiting a human right guaranteed by the Charter. It is clear the ‘more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society’ (Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381[150], quoting R v Oakes [1986] 1 SCR 103, 44; see also PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [345]).
Courts are not limited to the factors listed in s 7(2)(a)-(e), and must consider all relevant factors when applying the proportionality assessment (Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [133], see also Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [620] (Santamaria JA); R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 [147]; Certain Children (No 2) [2017] VSC 251 [474]-[476]).
Section 7(2)(a) – (e) factors
In determining whether limits on Charter rights are proportional under s 7(2), the following factors must be taken into account.
(a) The nature of the right
Section 7(2)(a) refers to the right or rights identified as being limited in the relevant circumstances. In determining whether a Charter right has been limited, the scope of the right is identified broadly and purposively (see, eg, Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 [80] (Warren CJ)).
The ‘nature’ of the right refers to the fundamental interests it protects and the values it embodies (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [335]; Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [130]).
Whether the right is considered absolute or non-derogable under international law may also be considered as part of the nature of the right. An absolute right is one that cannot be limited in any way, at any time, for any reason, such as the right to be free from torture. A non-derogable right is one that can be appropriately limited, but applies even in a state of emergency, such as the right to life or to freedom of thought, conscience, religion and belief (Human Rights Law Centre, Absolute and Non-Derogable Rights at International Law (21 July 2011), Parliament of Victoria, http://www.parliament.vic.gov.au/images/stories/committees/sarc/charter_review/supplementary_info/263_-_Addendum.pdf).
(b) The importance of the purpose of the limitation
Section 7(2)(b) refers to the importance of the purpose behind the limitation of the relevant Charter right or rights (the end), not the importance of the limitation itself (the means) (Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [144]).
The purpose behind limiting the right must be properly understood. The purpose must relate to ‘pressing and substantial’ social concerns, and be aimed at achieving legitimate values and interests, in order to be sufficiently important to justify limiting a Charter right. The more pressing and substantial the purpose, the greater the limitation it will justify (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [340]; Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [145], citing R v Oakes [1986] 1 SCR 103, [69]).
As Charter rights can be in competition with each other, the purpose of the limitation of one Charter right may be to protect another. For example, the right to freedom of expression might be limited in certain circumstances, in order to protect property rights (see, eg, Magee v Delaney (2012) 39 VR 50; [2012] VSC 407 [184]).
(c) The nature and extent of the limitation
Section 7(2)(c) focuses on the limitation itself, the means of achieving the purpose identified in s 7(2)(b) (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [345]).
The court must identify objectively how and to what extent the relevant Charter right has been limited in the circumstances (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [345]).
It is necessary to identify how great the limitation on the right is because the greater the limitation, ‘the more compelling must be its justification’ (Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [150]; PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [345]).
(d) The relationship between the limitation and its purpose
Section 7(2)(d) refers to the relationship between the limitation (the means) and the purpose (the end it is seeking to achieve). The purpose must be ‘rationally connected to and carefully designed to achieve the legitimate end’ (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [347]; see also Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [153]).
If the limitation on the right is not rationally connected to the relevant purpose, it cannot be justified by that purpose, no matter how important a purpose it is. The following example was given in Kracke, taken from the proportionality jurisprudence on the South African general limitations clause. One of the purposes given for imposing the death penalty in South Africa was deterrence, a sentencing principle widely acknowledged as serving a legitimate and important purpose. However, the evidence did not establish that imposing the death penalty achieved the purpose of deterrence. Therefore, the limitation on human rights involved in imposing the death penalty was not justified by that purpose (Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [154], citing S v Makwanyane 1995 (3) SA 391).
The more important the purpose of the limitation, the greater the extent of the limitation that may be reasonable and justified. Likewise, less pressing and substantial purposes will justify only correspondingly lesser limitations of Charter rights (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [340]).
(e) Any less restrictive means reasonably available to achieve the purpose
Section 7(2)(e) requires courts and public authorities to consider whether any less restrictive means are reasonably available to achieve the purpose, that is, whether it is reasonably possible to achieve the purpose in another way that does not limit Charter rights or does so to a lesser extent.
In some cases, courts have found it unnecessary for the limitation to be the least intrusive possible to give effect to the relevant purpose. Rather, the limitation in question must be within a range of reasonable alternatives (Sabet v Medical Practioners Board of Victoria (2008) 20 VR 414; [2008] VSC 346 [188]; Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [158]-[160], citing RJR-MacDonald v Canada (1995) 127 DLR (4th) 1; [1995] 3 SCR 199, [160]).
However, this question is not entirely settled, as s 7(2)(e) has also been interpreted as requiring the least restrictive means reasonably available. The argument is that if less restrictive measures were reasonably available, which could have been used to achieve the purpose in question, then the measure chosen would be excessive and therefore disproportionate (PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 [352]; Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 [556] (Crennan and Kiefel JJ)).

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Limitations test under s 7(2)