Human Rights & Responsibilities Act ~ Public Authorities.

Public authorities

The meaning of ‘public authority’ (s 4)

Overview

1. Section 4(1) defines the term public authority for the purposes of the Charter. The full definition can be found below.
2. The emphasis of the definition of public authorities:

   is on matters of substance, not form or technicalities. This accords with the statement in the second reading speech that the ’intent is that the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature’ (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [111]).

3. The definition in s 4(1) recognises that certain entities will always be public authorities (‘core’ public authorities) whereas other entities will be public authorities only when performing functions on behalf of the State or another public authority (‘functional’ public authorities) (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 3–4).
4. Subsections 4(1)(a)-(b) and (d)–(g) specify core public authorities. Some of these subsections are specific; they refer to particular entities, such as Victoria Police or Ministers, or to entities defined in other legislation, such as public officials or Councils. Subsection (b), however, is more general; it sets out criteria for determining whether any given entity is a core public authority.
5. Subsection 4(1)(c) provides for functional public authorities and, like s 4(1)(b), it sets out criteria for determining whether and when a particular entity will be a public authority rather than naming any specific entity.
6. A key criterion for determining whether a certain entity is a public authority under either ss 4(1)(b) or 4(1)(c) is whether it has functions ‘of a public nature’. Section 4(2) sets out a list of factors that may be taken into account in deciding whether a particular function is of a public nature. The factors are not exhaustive and the existence of one or more of the listed factors, in respect of a particular entity, is not determinative (s 4(3)).
7. Regulations made pursuant to the Charter can declare any entity to be a public authority (s 4(1)(h)) or not to be a public authority (s 4(1)(k)). The regulations currently do not declare any entities as public authorities, but they declare that the Adult Parole Board, Youth Residential Board and Youth Parole Board are not public authorities. The regulations will be remain in force until 22 October 2023 unless amended or repealed (Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013, regulation 5, endnotes).
8. Finally, subsections 4(1)(i)–(k) specify entities that are not public authorities.

   Core and functional public authorities

   Core public authorities – named institutional entities

9. Public officials (s 4(1)(a)), Victoria Police (s 4(1)(d)), Councils (s 4(1)(e)), and Ministers (s 4(1)(f)) are all specifically named as ‘core’ public authorities. Members of Parliamentary Committees, when they are acting in an administrative capacity (s 4(1)(g)), are also core public authorities (Metro West v Sudi [2009] VCAT 2025 [88]).
10. Public officials are defined with reference to the meaning of that term in the Public Administration Act 2004, and include:

    employees of the public service, including the Head of a government department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Victorian Public Sector Commissioner. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices (Note to Charter s 4(1)(a)).

11. The definition of ‘public official’ in the Public Administration Act 2004 specifies that certain people are not public officials, and those people are therefore also not public authorities under s 4(1)(a) of the Charter. They may, however, fall within one of the other subsections of the public authority definition. The list of people specified as not being public officials includes:
    • the Governor or the Lieutenant-Governor
    • Judges, magistrates, coroners or members of VCAT
    • Parliamentary Secretaries
    • the President of the Legislative Council
    • the Speaker of the Legislative Assembly
    • certain Ministerial officers
    • Royal Commission commissioners
    • Board of Inquiry or Formal Review members
12. Councils are defined with reference to the Local Government Act 1989. Councillors and Council staff within the meaning of that Act are also included in the definition of public authorities (s 4(1)(e)).

    Core public authorities – s 4(1)(b) entities

13. More generally, any entity will be a core public authority, under s 4(1)(b), if it is established by a statutory provision and has functions of a public nature. For example, the Office of the Ombudsman is a core public authority under s 4(1)(b) (Metro West v Sudi [2009] VCAT 2025[106], citing Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1293 (Rob Hulls, Attorney-General)).
14. Entities can be legal persons, human beings or unincorporated bodies (Note to s 4(1)(b)).
15. Courts and tribunals are generally considered to fall into this s 4(1)(b) category of core public authorities, but their status as such is limited by s 4(1)(j). Section 4(1)(j) states that courts and tribunals are public authorities only when acting in an administrative capacity. For more information see 2.4. Courts and tribunals as public authorities.
16. The meaning of ‘functions of a public nature’ is discussed below.

    Entities declared public authorities under regulation

17. Entities declared to be public authorities under Charter regulations pursuant to s 4(1)(h) may presumably be either core or functional public authorities, depending on the nature of the entity and the wording of the regulation. Currently, the regulations do not declare any entities as public authorities under s 4(1)(h).

    Functional public authorities – s 4(1)(c) entities

18. A functional public authority is an entity ‘whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority’ (s 4(1)(c)). This is a reflection of the modern tendency to outsource functions of a typically governmental nature to private entities to manage and deliver services (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 4; Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1294 (Rob Hulls, Attorney-General)).
19. Two criteria are used to determine whether an entity is a functional public authority under s 4(1)(c). Firstly, the entity must be exercising functions on behalf of the State or a public authority, whether under contract or otherwise. Second, those functions must be or must include functions of a public nature.
20. Subsections 4(4)–(5) assist with deciding whether an entity is acting ‘on behalf of the State or a public authority’ for the purposes of s 4(1)(c). Section 4(4) states that an agency relationship is not required. A more informal or ‘loosely connected arrangement’ between the entity in question and the State or public authority may suffice, such as the entity acting as a representative of the State or public authority or for its purposes (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 6).
21. The Explanatory Memorandum suggests that the degree of government regulation and control of the functions being performed by the entity should be considered when looking at this question (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 6).
22. Section 4(5) notes that public funding of an entity to perform a function does not necessarily mean that the function is being exercised on behalf of the State or a public authority. However, this factor may be relevant in determining the nature of the function itself, that is, whether it is of a public nature.
23. In Metro West v Sudi, VCAT found that Metro West Housing Services Limited was acting on behalf of the State or a public authority under s 4(1)(c). Metro West was a private company incorporated by a number of community-based organisations. It was an independent contractor to the Victorian government, providing transitional housing to those at risk of homelessness. It was not established, owned or controlled by the government. Relevant factors included:
    • The government exercised a substantial measure of control over Metro West, including through the incorporation of government policies and regulations and accounting and reporting requirements into Metro West’s contract.
    • Government officers entered into the contract with Metro West under powers conferred by statute.
    • Metro West’s housing function was conferred under a statutory provision. It was delegated power under s 35 of the Housing Act 1983, allowing it to lease, sub-lease, acquire and dispose of property.
    • Metro West was publicly funded by the government to exercise the public function of providing social housing(Metro West v Sudi [2009] VCAT 2025 [149]–[160]).
    • Metro West was therefore acting on behalf of the Director of Housing and the Secretary of the Department of Human Services, each of whom could be characterised as the State and as a public authority under s 4(1)(a).
24. Section 4(1)(c) has been applied in relation to a corporation which managed one of five sport and recreation centres in the Hobsons Bay municipality on behalf of the Council, and to private welfare agencies under contract with the Department of Housing (Hobsons Bay City Council (Anti-Discrimination Exemption) [2009] VCAT 1198 [35]; Homeground Services v Mohamed [2009] VCAT 1131 [1]–[2]; AVW v Nadrasca Ltd (Residential Tenancies) [2017] VCAT 1462 [78]).
25. The second criterion for determining whether an entity is a functional public authority under s 4(1)(c) is whether all or some of its functions are public in nature. This factor is relevant not only to functional public authorities under s 4(1)(c), but also to the category of core public authorities under s 4(1)(b: entities established by a statutory provision that have functions of a public nature.

    Functions of a public nature

26. Two categories of public authorities are defined by having ‘functions of a public nature’ (s 4(1)(b)–(c)).
27. In the Charter, the term ‘function’ also refers to a power, authority and duty, and the ‘exercise of a function’ includes the performance of a duty, where the function is a duty (s 3(2)).
28. Section 4(2)(a)–(e) sets out an open list of factors that may be taken into account in determining whether a particular entity has functions of a public nature:
    • the function is conferred on the entity by or under a statutory provision
      • For example, powers of arrest conferred by the Transport (Compliance and Miscellaneous) Act 1983
      • Conferral can be direct or through delegation under statutory authority (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 5)
    • the function is connected to or generally identified with functions of government
      • For example, providing correctional services, like managing a prison (Example, s 4(2)(b); Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 5)
    • the function is of a regulatory nature
    • the entity is publicly funded to perform the function
    • the entity is a company and all of its shares are held by or on behalf of the State
      • For example, Victorian water suppliers (Example, s 4(2)(b))
29. The list of factors is explicitly open (s 4(3)(a)). The presence of one or more of these factors may be relevant, but does not necessarily mean a function is ‘public’ (s 4(3)(b)).
30. The Charter and the Explanatory Memorandum provide some examples of functions that may be of a public nature:
    • School education (Example, s 4(1)(c))
    • Statutory disciplinary, ethical or qualification powers of a professional association (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 5; see also Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414; [2008] VSC 346 [116]–[117])
31. Metro West Housing Services Limited was found to be an entity with functions ‘of a public nature’ and was therefore a functional public authority under s 4(1)(c) when exercising those public functions. Metro West was an independent contractor to the Victorian government, providing transitional housing to those at risk of homelessness. Relevant factors included:
    • The provision of social housing is a fundamentally important function, which the government exercises on behalf of the community in the public interest.
    • The government had a well-developed set of policies and programs by which this function was carried out, and those policies had a statutory foundation.
    • The government publicly funded the exercise of this function by community-based organisations like, and including, Metro West (Metro West v Sudi [2009] VCAT 2025 [143]–[148])
32. The following are examples of entities found to have functions ‘of a public nature’ under:
    • Section 4(1)(b) (core public authorities):
      • The Chief Examiner - controlling the compulsory examination process under Major Crime (Investigative Powers) Act 2004 (DPP v Debono [2013] VSC 407 [93])
      • The Medical Practitioners Board of Victoria - the registration, supervision and regulation of medical practitioners, the regulation of professional standards of practice in the public interest, and the creation and publication of codes of practice (Sabet v Medical Practioners Board of Victoria [2008] VSC 346 [116] – [118])
    • Section 4(1)(c) (functional public authorities):
      • Leisure Management Services Pty Ltd – in managing one of five sport and recreation centres in the Hobsons Bay municipality on behalf of the Council (Hobsons Bay City Council [2009] VCAT 1198 [35])
      • Homeground Services - a private welfare agency providing transitional housing to impoverished tenants under contract with the Department of Housing (Homeground Services v Mohamed [2009] VCAT 1131 [1] – [3])
      • Nadrasca Ltd – a not for profit organisation and disability service provider that provides residential services to people with a disability, through subleasing a group home from the Director of Housing (AVW v Nadrasca Ltd (Residential Tenancies) [2017] VCAT 1462 [78])
33. The factors in s 4(2) were taken from United Kingdom decisions on the Human Rights Act 1998 (UK) and New Zealand decisions on the Bill of Rights Act 1990 (NZ) (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 4).

    Which entities are not public authorities?

34. The definition of public authority explicitly excludes Parliament and those exercising functions in connection with Parliamentary proceedings (s 4(1)(i)). This is a complete carve out, so that Parliament and Members of Parliament, in their capacity as such, are never bound as public authorities under the Charter whether or not they are acting in an administrative capacity.
35. Courts and tribunals are also excluded from the definition of public authorities, other than when they are acting in an administrative capacity (s 4(1)(j)). They are not public authorities under the Charter when they are acting in a judicial capacity. For more information see 2.4. Courts and tribunals as public authorities.
36. Like courts and tribunals, members of Parliamentary Committees are public authorities only when they are acting in an administrative capacity (s 4(1)(g)). The Charter provides no examples, but the Explanatory Memorandum gives ‘hiring staff’ as an example of acting in an administrative capacity (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 4).
37. Section 4(1)(k) excludes any entities that have been declared not to be a public authority under Charter regulations. The entities so excluded, under regulation 5 of the Charter of Human Rights And Responsibilities (Public Authorities) Regulations 2013, are:
    • the Adult Parole Board established by s 61 of the Corrections Act 1986
    • the Youth Residential Board continued in existence by s 431 of the Children, Youth and Families Act 2005
    • the Youth Parole Board continued in existence by s442 of the Children, Youth and Families Act 2005

    Charter extract - s 4: What is a public authority?

    4 What is a public authority?

    (1) For the purposes of this Charter a public authority is—

    (a) a public official within the meaning of the Public Administration Act 2004; or

    Note

    A public official under the Public Administration Act 2004 includes employees of the public service, including the Head of a government department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Victorian Public Sector Commissioner. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices.

    (b) an entity established by a statutory provision that has functions of a public nature; or

    Notes

    1 In section 38 of the Interpretation of Legislation Act 1984 entity is defined to include a person (both a human being and a legal person) and an unincorporated body.

    2 See subsection (2) in relation to "functions of a public nature".

    (c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise); or

    Example

    A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the State it is not a public authority for the purposes of this Charter.

    Note

    See subsections (4) and (5) in relation to "on behalf of the State or a public authority".

    (d) Victoria Police; or

    (e) a Council within the meaning of the Local Government Act 1989 and Councillors and members of Council staff within the meaning of that Act; or

    (f) a Minister; or

    (g) members of a Parliamentary Committee when the Committee is acting in an administrative capacity; or

    (h) an entity declared by the regulations to be a public authority for the purposes of this Charter—

    but does not include—

    (i) Parliament or a person exercising functions in connection with proceedings in Parliament; or

    (j) a court or tribunal except when it is acting in an administrative capacity; or

    Note

    Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

    (k) an entity declared by the regulations not to be a public authority for the purposes of this Charter.

    (2) In determining if a function is of a public nature the factors that may be taken into account include—

    (a) that the function is conferred on the entity by or under a statutory provision;

    Example

    The Transport (Compliance and Miscellaneous) Act 1983 confers powers of arrest on an authorised officer under that Act.

    (b) that the function is connected to or generally identified with functions of government;

    Example

    Under the Corrections Act 1986 a private company may have the function of providing correctional services (such as managing a prison), which is a function generally identified as being a function of government.

    (c) that the function is of a regulatory nature;

    (d) that the entity is publicly funded to perform the function;

    (e) that the entity that performs the function is a company (within the meaning of the Corporations Act) all of the shares in which are held by or on behalf of the State.

    Example

    All the shares in the companies responsible for the retail supply of water within Melbourne are held by or on behalf of the State.

    (3) To avoid doubt—

    (a) the factors listed in subsection (2) are not exhaustive of the factors that may be taken into account in determining if a function is of a public nature; and

    (b) the fact that one or more of the factors set out in subsection (2) are present in relation to a function does not necessarily result in the function being of a public nature.

    (4) For the purposes of subsection (1)(c), an entity may be acting on behalf of the State or a public authority even if there is no agency relationship between the entity and the State or public authority.

    (5) For the purposes of subsection (1)(c), the fact that an entity is publicly funded to perform a function does not necessarily mean that it is exercising that function on behalf of the State or a public authority.

 

Obligations on public authorities (s 38)

1. Section 38(1) states that it is ‘unlawful for a public authority to act in a way that is incompatible with a [Charter] right or, in making a decision, to fail to give proper consideration to a relevant [Charter] right’, subject to certain exceptions set out in the remainder of the section.
2. Section 38(1) imposes obligations on public authorities to observe Charter rights, in accordance with the intention of Parliament that the Charter have a normative effect on administrative practice (Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [271] (Weinberg JA)).
3. The obligations imposed by s 38(1) apply regardless of whether it is possible to identify a particular person who will be affected by the act or decision in question. It is enough for there to be a potential impact on the Charter rights of a class of persons (Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251 [190] (‘Certain Children (No 2)’).
4. The rest of s 38 sets out exceptions to the rule. Section 38(1) does not apply:
   • If, under law, the public authority could not reasonably have acted differently or made a different decision (s 38(2))
   • To an act or decision of a private nature (s 38(3))
   • If it would impede or prevent a religious body (including the public authority itself, if relevant) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which it operates (s 38(4))
5. A public authority is not bound by s 38(1) when it makes subordinate legislation. Rather, the subordinate legislation is subject to interpretation in accordance with the interpretative provision in s 32(1). However, the acts or decisions of public authorities taken under the subordinate legislation will be subject to s 38(1), unless the s 38(2) exception applies (Kerrison v Melbourne City Council (2014) 228 FCR 87; [2014] FCAFC 130 [189]–[200]).
6. Non-compliance with s 38(1) results in unlawfulness, but the consequences of this unlawfulness is not clear. No cause of action is created by s 38, or its companion ‘remedies provision’, s 39 (Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [214] (Weinberg JA)). See 3.3. Proceedings for breach of the Charter (s 39) for further discussion.
7. Section 38(1) was modelled on s 6 of the Human Rights Act 1996 (UK) (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 27).

   Procedural limb: proper consideration of Charter rights

8. A public authority must give proper consideration to relevant Charter rights when making a decision (s 38(1)). This is known as the ‘procedural’ limb of s 38(1), as opposed to the ‘substantive’ limb, which requires public authorities to act compatibly with Charter rights (see, eg, Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [245] (Tate JA)). It is an obligation that must be undertaken before the decision making power has been exercised; giving consideration to Charter rights after the decision has been made will not be sufficient (Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 [190]-[191] (‘Certain Children (No 1)’).
9. Administrative decisions are the ‘lynchpin’ of administrative law, and are subject to judicial review by the Supreme Court, including on the ground of failure to take into account relevant considerations (see, eg, Justice Emilios Kyrou, ‘Obligations of Public Authorities under section 38 of the Victorian Charter of Human Rights and Responsibilities’ (2014) 2 Judicial College of Victoria Journal 77, 78).
10. However, the word ‘proper’ implies that the procedural limb of s 38(1)is more stringent than the common law requirement of those involved in public administration to take into account relevant considerations (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [235], [275]–[276] (Tate JA); Certain Children (No 1) [2016] VSC 796 [183]-[184]).
11. The test for proper consideration under s 38(1) was set out in Castles v Secretary of the Department of Justice (2010) 28 VR 141; [2010] VSC 310. Proper consideration under s 38(1) involves:

    understanding 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 that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.

    While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker 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 of the Department of Justice (2010) 28 VR 141; [2010] VSC 310 [185]–[186] (‘Castles’); cited in Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [279]–[280] (Tate JA), [535] (Santamaria JA); PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [311]; De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647; [2016] VSC 111 [139]; Certain Children (No 1) [2016] VSC 796 [186]; Certain Children (No 2) [2017] VSC 251 [221]; see also Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [217], [221]–[222] (Warren CJ); Giotopoulos v Director of Housing [2011] VSC 20 [90]; Minogue v Dougherty [2017] VSC 724 [90]).

12. The requirements of the 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)).
13. Regarding the first and second steps above, s 38(1) obliges a public authority to give proper consideration to whichever Charter rights may be relevant in the circumstances. There is no need for the statute conferring the decision-making power on the public authority to refer to any specific rights or to independently require their consideration. Rather:

    the procedural limb of s 38(1) operates as a constraint on the exercise of public power; it constrains the power a public authority exercises by requiring that, in the exercise of the power, the public authority give proper consideration to the relevant human rights that arise in the circumstances of the case (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [318]–[322] (Tate JA), see also [227] (Warren CJ), [536] (Santamaria JA)).

14. The decision-maker need not identify the section under which the right is protected, or ‘explain any content of any right by reference to legal principles or jurisprudence’. Rather, the nature and extent of the effect of the decision on a person’s rights must be identified in general terms (De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647; [2016] VSC 111 [141]). A court reviewing the obligation to give consideration will consider the substance of the consideration rather than its form (Certain Children (No 1) [2016] VSC 796 [189]).
15. The standard of consideration required will differ depending on the circumstances, including the identity of the decision maker, the rights affected, and the vulnerability of the rights-holders. For example, in Certain Children (No 2), John Dixon J considered that the standard of consideration required to discharge the s 38(1) obligation would have been much higher than the standard required of the decision maker in Castles. In Certain Children (No 2), the decision maker was a Minister who had the benefit of an earlier, directly relevant, Supreme Court decision and a Charter compatibility briefing prepared by the Victorian Government Solicitor’s Office, and the rights-holders were child detainees 'highly vulnerable by reason of their age and ... their incarceration' (Certain Children (No 2) [2017] VSC 251 [203], [491]-[492]).
16. The obligation extends to considering how the decision will operate in practice and whether any guidelines designed to ameliorate the effect of a decision are capable of operating effectively. For example, in Certain Children (No 2) [2017] VSC 251, John Dixon J considered a decision about when OC spray could be used inside a prison. He explained that ‘proper consideration’ required considering the circumstances in which OC spray would be used, including its potential use in a manner contrary to any guidance, for example, as an instinctive response to an escalating situation. Also relevant was the potential for other prisoners (as persons deprived of liberty for the purpose of s 22(1)), who were not involved in an escalating situation, to be affected by the spray (Certain Children (No 2) [2017] VSC 251 [525]-[526]).
17. The obligation to give proper consideration to Charter rights is not suspended when decisions are made in an emergency or other extreme circumstances. Such circumstances increase the risk that Charter rights will be overlooked, and nothing in the language of s 38(1) indicates that it does not apply in such situations (Certain Children (No 1) [2016] VSC 796 [187]-[188]).

    Proportionality analysis: s 7(2)

18. Proper consideration of Charter rights, under the third and fourth steps above, will include the exercise of identifying and comparing rights and obligations to determine whether any limit placed on the applicant’s rights could be justified under s 7(2) of the Charter (Bare v IBAC(2015) 48 VR 129; [2015] VSCA 197 [284]–[285] (Tate JA), see also [146] (Warren CJ), [620] (Santamaria JA)).
19. Section 7(2) of the Charter, the justification or proportionality provision, comes into play when Charter rights are limited. Section 7(2) states:

     (2) A human right 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, and 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.

20. The countervailing interests or obligations relevant to the justification analysis will include those made relevant by the legislation giving the public authority its power (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [536] (Santamaria JA)).

    Substantive limb: acts compatible with Charter rights

21. The ‘substantive limb’ of s 38(1) requires public authorities to act compatibly with Charter rights. It is stated in the negative: ‘it is unlawful for a public authority to act in a way that is incompatible with a human right’ (s 38(1)).
22. In the Charter, ‘act’ includes a failure to act and a proposal to act (s 3(1)).
23. Courts have developed the following suggested approach for establishing whether there has been a breach of Charter rights under the substantive limb of s 38(1):
    • First, consider whether a Charter right has been engaged in the circumstances of the case;
    • Second, determine whether a public authority has limited or interfered with the right through its action or inaction; and
    • Third, with reference to the s 7(2) proportionality analysis, determine whether any limitation imposed was reasonable and justified in the circumstances (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [306], [309]–[312]; Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [70], [135]; Sabet v Medical Practitioner’s Board (Vic) (2008) 20 VR 414; [2008] VSC 346 [108]; DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [468]; Certain Children (No 1) [2016] VSC 796 [205]-[206]; Certain Children (No 2) [2017] VSC 251 [199]; Baker v DPP [2017] VSCA 58 [57]-[58]).
24. The above steps establish whether the conduct of the relevant public authority was ‘compatible’ with Charter rights under s 38(1). If any limitations on Charter rights were not justified in terms of s 7(2), the act or decision would be incompatible with Charter rights, and so breach s 38(1) and be unlawful (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]; Certain Children (No 1) [2016] VSC 796 [206]; Baker v DPP [2017] VSCA 58 [57-58]).
25. In Patrick’s Case, Bell J found that judicial review for unlawfulness under s 38(1) did not amount to merits review. However, because it includes a proportionality analysis under s 7(2), it is a more intensive review than traditional judicial review for unlawfulness and therefore:

    draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests than traditional judicial review (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [315]–[317]; Certain Children (No 2)[2017] VSC 251 [212]).

26. In the same way as the procedural limb, the level of review required may differ depending on the circumstances. In Certain Children (No 2), John Dixon J suggested that

    [p]recisely what ‘intensity’ [of review] is required and what that actually means is likely to depend on the particular circumstances before the court that will vary from case to case. Context and circumstances may include the experience and expertise of the primary decision-maker, the information that a decision-maker acts on and the extent to which a decision is supported and objectively justified by a transparent process of reasoning. A detailed brief that informed the decision or detailed reasons from the decision maker may be persuasive. (Certain Children (No 2) [2017] VSC 251 [217])

27. In his Honour’s view, in relation to the substantive limb of s 38(1), a limited degree of deference to the decision-maker is required. This may be in terms of fact-finding, discretionary considerations, or in balancing judgments. However, the court must perform its own s 7(2) analysis, to reach an objective decision on whether the limitation is proportionate (Certain Children (No 2) [2017] VSC 251 [218]).
28. If a reviewing court determines that a Charter right has been limited by a public authority’s actions, the onus is then on the justifying party to demonstrate that the limitation is demonstrably justified in the terms of s 7(2) (Certain Children (No 2) [2017] VSC 251 [175], [200]). For further discussion, see 5. Limitations on Charter Rights.

    Cumulative operation of procedural and substantive limbs

29. Although s 38(1) refers to both acts and decisions of public authorities, it is not always clear which of the two is relevant: decisions are often implemented by acts, and acts involve the decision to act.
30. Although appellate courts have not decided the point, the balance of current authority suggests the procedural and substantive limbs are cumulative, rather than mutually exclusive. This means that s 38(1) requires a public authority to give proper consideration to any Charter rights that are engaged when making a decision, and reach a decision that is substantively compatible with Charter rights. If only one aspect of s 38(1) is fulfilled, and the other is not, the public authority would not have met the s 38(1) obligation and there will have been Charter unlawfulness (Certain Children (No 2) [2017] VSC 251 [177]; see also PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [312]; Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [70]; Minogue v Dougherty [2017] VSC 724 [74]).
31. For example, in Certain Children (No 2), John Dixon J found that even if the decision maker’s interference with rights was demonstrably justified, the failure to give proper consideration to Charter rights in the decision making process meant that the decision maker acted unlawfully. His Honour explained:

    This is a matter of real practical significance even if the decision that was made involved a justifiable interference with rights, because if rights had been properly considered a different decision might have been made. If this were not so, the obligation to give proper consideration would be negated such that its utility would be diminished or void. The requirement for a public authority to give proper consideration to human rights must be given work to do. (Certain Children (No 2) [2017] VSC 251 [226])

32. However, appellate courts have not directly considered this issue. It remains possible that s 38(1) requires the conduct in question to be categorised discretely as either an act or a decision, so that only the relevant corresponding limb of s 38(1) applies (Justice Emilios Kyrou, ‘Obligations of Public Authorities under section 38 of the Victorian Charter of Human Rights and Responsibilities’ (2014) 2 Judicial College of Victoria Journal 77, 78).

    ‘Roadmap’ for assessing s 38 compatibility

33. In Minogue v Dougherty [2017] VSC 724, at [74] John Dixon J endorsed the ‘roadmap’ that VEOHRC had identified in Certain Children (No 2) for assessing s 38 incompatibility. A court should approach its task by considering:

    (a) is any human right relevant to the decision or action that a public authority has made, taken, proposed to take or failed to take? (the relevance or engagement question);

    (b) if so, has the public authority done or failed to do anything that limits that right? (the limitation question);

    (c) if so, is that limit under law reasonable and is it demonstrably justified having regard to the matters set out in s 7(2) of the Charter? (the proportionality or justification question);

    (d) even if the limit is proportionate, if the public authority has made a decision, did it give proper consideration to the right? (the proper consideration question);

    (e) was the act or decision made under an Act or instrument that gave the public authority no discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted under s 32 of the Charter in a way that is consistent with the protected right (the inevitable infringement question).

34. This ‘roadmap’ reflects the cumulative approach to the s 38 obligations, where both the procedural and substantive limbs of s 38 must be satisfied. As discussed above, while the balance of current authority supports the cumulative approach, rather than the mutually exclusive approach, appellate courts have not yet determined this point.

    Breach of s 38(1): jurisdictional or non-jurisdictional error?

35. While breach of s 38(1) is an error of law, it is an open question as to whether it is jurisdictional or non-jurisdictional error (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [378] (Tate JA), [600] (Santamaria JA); Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [49] (Warren CJ), [214], [271] (Weinberg JA); cf Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [145] (Warren CJ)).
36. Jurisdictional error is a species of error of law. When a court finds jurisdictional error in relation to administrative conduct, the usual consequence is that the relevant conduct is invalid. There is no bright line distinction between what does and does not amount to jurisdictional error, but the general rule is that jurisdictional error occurs where the ‘decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do’ (Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 [56], [66] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 [163]).
37. The distinction between jurisdictional and non-jurisdictional error is important, not only because jurisdictional error renders the relevant conduct invalid, but because the Supreme Court’s power to review administrative conduct for jurisdictional error cannot be ousted by the Victorian Parliament through a privative clause (Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1[55], [100](French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Aronson and Groves, Judicial Review of Administrative Action (5 ed, Thomson Reuters, 2013), 17-18).
38. So, if s 38(1) unlawfulness necessarily amounts to jurisdictional error, the Victorian Parliament will not have the power to oust judicial review for a breach of s 38(1).
39. Although the question was left open by the majority of the Court of Appeal in Bare v IBAC, Warren CJ held that a breach of s 38(1) did not necessarily amount to jurisdictional error. Warren CJ applied the Project Blue Sky test for breach of a statutory requirement, which is to ask ‘whether it was a purpose of the legislation that an act done in breach of the provision should be invalid’ (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [140], [145] (Warren CJ), see also [622]–[626] (Santamaria JA), citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 [93]).
40. Project Blue Sky refers to two factors that assist in applying the test. These are:
    • first, whether the relevant provision relates to the exercise of functions already conferred or, alternatively, imposes a condition on the exercise of the function; and
    • secondly, whether the provision has a rule-like quality which can be easily identified and applied (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [142] (Warren CJ), citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 [94]-[95]).
41. Warren CJ found that it is not the purpose of s 38(1) or of the Charter generally to invalidate acts inconsistent with it. In part, that was because of the impact that would have on government operations, and because s 38(1) does not have the requisite rule-like quality for its breach to amount to jurisdictional error. The various factors in the s 7(2) proportionality provision, which is relevant to s 38(1) compliance, and the various exceptions to s 38(1) contained in ss 38(2)–(4), render it too imprecise to pass this test (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [146], [149], [151] (Warren CJ); see also Santamaria JA at [620]).
42. A decision made in breach of s 38(1) is ‘unlawful’, irrespective of whether it is invalid for jurisdictional error. It could be quashed, if it appears on the record, or the remedies of declaration and injunction may be available to a plaintiff with standing. The provision would therefore retain its normative force, even if its breach did not necessarily result in jurisdictional error and invalidity (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [150]–[152] (Warren CJ), [624] Santamaria JA).
43. While not deciding this question, Tate and Santamaria JJA also identified some concerns with the characterisation of s 38(1) unlawfulness as jurisdictional error. Section 38(1) deems Charter rights to be relevant considerations, and stipulates that a breach results in ‘unlawfulness’. This may suggest an intention by Parliament that a failure to comply with s 38(1)is material to the decision arrived at, resulting in jurisdictional error. On the other hand, the Charter does not confer power on public authorities to act or make decisions. Section 38(1) may therefore regulate the performance of functions conferred elsewhere, rather than impose essential requirements on their exercise, per the Project Blue Sky test. If this is the case, the breach would not exceed the power of the administrator and would therefore not result in invalidity, even though it would be ‘unlawful’ (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [386]–[389] (Tate JA), [617]-[619] (Santamaria JA)).
44. Another observation relates to the interaction between s 38(1) and the override provision in s 31 of the Charter. If a s 38(1) breach gave rise to jurisdictional error, Parliament could not enact an ouster clause precluding judicial review of contravention of s 38(1), but it could make an override declaration with respect to the statutory power enabling the act or decision so as to exclude the requirements of the Charter – an anomalous position (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [379] (Tate JA)).
45. The Court recognised that the concept of ‘unlawfulness’ should be treated the same way across both ss 38 and 39. It would be hard to treat ‘unlawful’ under s 38(1) as giving rise to jurisdictional error – meaning that the conduct or decision was invalid - while at the same time not warranting relief under s 39 unless some other ground of unlawfulness could be found (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [150] (Warren CJ) [392] (Tate JA), [625] (Santamaria JA)). Section 39 is discussed in more detail below, see 3.3. Proceedings for breach of the Charter (s 39).

    The public authority could not reasonably have acted or decided differently (s 38(2))

46. Section 38(2) states:

    Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

    Example

    Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

47. The exception under s 38(2) allows for circumstances where the power conferred on the public authority clearly could not be exercised consistently with s 38(1). That is, the exception applies where a conflict of duties arises between s 38(1) and a statute that requires or authorises a public authority to act incompatibly with, or not to consider, a Charter right. In that case, the exception reflects the fact that legislation that is incompatible with Charter rights is nevertheless valid and enforceable (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [325]–[326] (Tate JA)).
48. For example, the Supreme Court in Kaba found that s 59(1) of the Road Safety Act authorised police to randomly stop vehicles and request the driver’s name, address and licence. These acts necessarily curtailed the driver’s rights to freedom of movement (s 12), privacy (s 13) and liberty (s 21). However, they were authorised by the legislation and the police could not reasonably have acted differently in performing them, so the exception in s 38(2) applied (DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [447], see also Caserta v Director of Public Transport [2011] VCAT 98).
49. However, had the police interfered with Charter rights ‘beyond those involved as an ordinary and natural consequence of the due exercise of the power concerned’, the exception in s 38(2) would not have applied (DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [448]).

    The meaning of ‘reasonably’

50. A provision may not authorise or require a specific action, as in the Kaba example, but rather authorise some discretion on the part of a public authority in respect of their acts or decisions taken under the provision. In those circumstances, the relevant test in s 38(2) is whether the public authority, in exercising the relevant discretion, could reasonably have acted differently or made a different decision such that s 38(1) was not infringed.
51. It is a presumption of the common law that a statutory discretion must be exercised reasonably. In respect of that presumption, it has been held that the standard of reasonableness is that indicated by the statute in question, as a matter of construction (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 [63], [67] (Hayne, Kiefel and Bell JJ)).
52. It seems that the same applies in respect of s 38(2), particularly given the requirements of the Charter’s interpretative provision in s 32(1). It is therefore unlikely that it could be ‘reasonable’ to limit Charter rights if the discretion in question allowed for any alternative decision or act that did not limit them, that is, that complied with s 38(1). This is the standard of reasonableness that Warren CJ seems to endorse in Bare v IBAC:

    [W]hen a public authority is called upon to exercise a statutory power it must do two things: it must first construe the power, and then exercise that power. In the process of construction there is no doubt that s 32 has work to do in ensuring that the relevant provision, as far as possible, is construed in a way that is compatible with human rights. In some instances the only possible way to construe the provision would require the public authority to act in breach of s 38(1), hence the exception in s 38(2). However, in most cases, as in this one, once the construction process has occurred s 38(1) will act as a constraint on the exercise of the power to ensure that proper consideration is given to human rights and that the authority does not act incompatibly with human rights (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [227] (Warren CJ)).

53. Additionally, the Supreme Court has found that the exemption in s 38(2) will not be relevant where a number of possible courses of action are open. That is because s 38(1) limits the options to those demonstrably justified according to the criteria in s 7(2) (PJB v Melbourne Health (2011) 39 VR;[2011] VSC 327 [230]).

    Acts or decisions of a private nature (s 38(3))

54. Section 38(1) ‘does not apply to an act or a decision of a private nature’ (s 38(3)).
55. The Charter does not define the phrase ‘of a private nature’. It is likely meant to be contrasted with functions ‘of a public nature’, an expression used to assist with the definition of public authorities in s 4.
56. Section 4(2) sets out factors that may be relevant to whether a particular function is ‘of a public nature’. The converse of the s 4(2) factors may therefore be relevant to whether a particular act or decision is ‘of a private nature’. If that is correct, the following may be of some relevance to determining whether an act or decision is private in nature:
    • the power to act or make the decision is not conferred on the public authority by or under a statutory provision
    • the act or decision is not connected to or generally identified with functions of government
    • the act or decision is not of a regulatory nature
    • the entity is not publicly funded to perform the act or decision
57. Certain entities are public authorities for Charter purposes only when they are exercising functions of a public nature (s 4(1)(c)), whereas other entities are always public authorities under the Charter (s 4(1)(a)–(b), (d)–(g)). These are known as ‘functional’ and ‘core’ entities respectively. See 3.1. Public authorities.
58. The s 38(3) exception is more relevant to core public authorities, who are always public authorities irrespective of the nature of the function they are performing. The exception serves to limit the obligations of core public authorities to when they are acting or making decisions of a public nature.
59. Functional public authorities, however, are public authorities only when they are exercising functions of a public nature. When they are acting or making a decision of a private nature, it is unlikely that they would fall within the definition of public authorities, and therefore unlikely they would be bound by s 38(1), in respect of those acts and/or decisions.
60. For example, the decision of a private security firm providing services to both public and private organisations may be a public authority in respect of its services to public organisations. However, if the firm was to require a manager in its private unit to relocate to Perth, that would likely fall within its private functions so that it was not a public authority for those purposes. Since it would not be a public authority in those circumstances, neither the obligations in s 38(1) nor the exception in s 38(3) would be relevant.

    Religious bodies (ss 38(4)–(5))

61. Section 38(4) excludes the operation of s 38(1) when compliance with that section would impede or prevent a religious body from conforming with its own doctrines, beliefs or principles. It applies where a public authority is a religious body, or when it interacts with a religious body, for example, by funding or licensing the functions of that body (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 28).
62. Sections 38(4)–(5) state the following:

    (4) Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

    (5) In this section "religious body" means—

    (a) a body established for a religious purpose; or

    (b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.

63. Section 81 of the Equal Opportunity Act 2010 uses the same definition of religious bodies, which are exempt by s 82 of that Act from its prohibitions on discrimination.
64. The Equal Opportunity Act prohibitions on discrimination apply more widely than the Charter’s s 38(1) obligations, which are binding only on public authorities. Accordingly, the Equal Opportunity Act also includes exceptions for religious schools and on the basis of personal religious belief (Equal Opportunity Act 2010, ss 83-84). The exceptions also apply in different circumstances: if the discriminatory conduct of the religious body conforms with the doctrines, beliefs or principles of the relevant religion, or is reasonably necessary to avoid injury to the religious sensitivities of adherents of that religion (Equal Opportunity Act 2010, s 82).
65. Despite these differences, some guidance on the religious body exception in the Equal Opportunity Act 2010, and its predecessor the Equal Opportunity Act 1995, may assist the courts in applying the definition in s 38(5) of the Charter.
66. In the context of the Equal Opportunity Act 1995, the phrase ‘established for a religious purpose’ was interpreted as not relating to the purpose of the entity when it was actually established. Rather, it requires an examination of the character and purpose of the activities at the time of the alleged conduct, irrespective of whether it was originally established for a religious purpose (Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256; [2014] VSCA 75 [155], [223]–[224] (Maxwell P), [361] (Neave JA), [441] (Redlich JA)).For s 38(4) of the Charter, that would likely equate to the time the public authority acted or made its decision.
67. In Christian Youth Camps, the entity in question was found not to be a religious body under the Equal Opportunity Act 1995. Christian Youth Camps, although it conducted Christian camps at its resort, also conducted secular school camps, corporate camps and other groups with no explicit religious connection and did not require any religious content or observance from these groups. The activities were not ancillary to or supportive of the entity’s religious purposes, but were the very purposes for which it existed. Its purpose or activity was therefore not religious for the purposes of the definition (Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256; [2014] VSCA 75, [216]–[218], [245]–[246] (Maxwell P)[361] (Neave JA), [441] (Redlich JA)).
68. The provisions in the Charter and the Equal Opportunity Act both require the courts to analyse whether the religious body’s conduct conforms with its doctrines, beliefs or principles. To satisfy this requirement, the Court in Christian Youth Camps found that since the exception allowed for conduct that would otherwise be unlawful (as does the Charter exception in s 38(4)) it would be necessary to show that the religious doctrine ‘requires, obliges or dictates that the person act in a particular way when confronted by the [relevant] circumstances’ (emphasis added) (Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256; [2014] VSCA 75, [286] – [287] (Maxwell P), citing Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613 [315]).
69. In the Equal Opportunity Act, the aim of the exceptions is to strike a balance between the rights of equal opportunity and non-discrimination and the right to religious freedom (see, eg, Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256; [2014] VSCA 75, [155] (Maxwell P)).
70. The Charter includes the right to freedom of thought, conscience, religion and belief (s 14) and a general limitations or proportionality analysis in s 7(2), which allows for the balancing of competing rights against one another. A proportionality analysis, using the factors set out in s 7(2), is part of the process of determining whether s 38(1) has been breached. However, as an exception to s 38(1), s 38(4) means that public authorities do not need to engage in proportionality analyses or balancing exercises when acting or making a decision that would impede or prevent a religious body from acting in accordance with its beliefs.

 

Proceedings for breach of the Charter (s 39)

Section 39(1) – proceedings for breach of s 38(1)

1. The s 38 obligations on public authorities should be read with s 39, the only other provision in Division 4 of Part 3 of the Charter ‘Obligations on public authorities’.
2. Section 39 does not create an independent cause of action for breach of the Charter, but it provides for relief or remedy in certain circumstances. Section 39(1) states:

   39 Legal proceedings

   (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

3. The Consultation Committee recommended that remedies already available under existing Victorian law should also be available for breaches of the Charter (Rights, Responsibilities and Respect: The Report of the Victorian Human Rights Consultation Committee, 2006, 114).
4. The operation of s 39(1) is conditional and supplementary. It is conditional on whether a person can seek relief ‘in respect of an act or decision of a public authority on the ground that the act or decision was unlawful’ independently of the Charter. If so, the person can seek the same relief or remedy on a supplementary Charter ground (Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [96] (Maxwell P), citing PJB v Melbourne Health (2011) 39 VR; [2011] VSC 327 [296]–[297]).
5. The condition appears to be satisfied when unlawfulness on the part of a public authority is directly in issue, because a rule or law attaches consequences to such unlawfulness. For example, the condition would be satisfied when a breach of s 38(1) supplies the unlawfulness element required for an existing cause of action or interlocutory proceeding.
6. The operation of s 39(1) to certain administrative law proceedings for judicial review remains an open question: Can the Charter supply the sole ground of unlawfulness with respect to administrative conduct of a kind that is reviewable? Alternatively, is breach of the Charter as a ground of review available only when it supplements another unlawfulness ground on which the litigant is relying in the specific circumstances of the case?
7. The precise scope and application of s 39(1) has been the subject of some criticism and controversy, and it remains unclear. As a result, the following material is provided as a guide only and should be used with caution.
8. Unlike most Charter provisions, s 39 has no equivalent in the foreign or international human rights instruments on which the Charter was based. Commentary suggests that it may have been enacted as a compromise, taking into account concerns that the Charter would vastly increase litigation on one hand, and concerns that it would have no effect without justiciable remedies, on the other (see, eg, Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [267]–[277] (Weinberg JA); Jeremy Gans, ‘The Charter’s Irremediable Remedies Provision’ (2009) 33 Melbourne University Law Review 105).

   Unlawfulness as an element in an existing cause of action

9. When unlawfulness is directly in issue because of the nature of the proceedings, for example, as an element required to obtain the relief sought, it appears the condition in s 39(1) is met. The cause of action already exists independently of the Charter, so that the relief or remedy sought under it is sought ‘otherwise than because of [the] Charter’. Additionally, since unlawfulness is an element in that cause of action, any relief sought under it would be ‘on the ground that the act or decision was unlawful’.
10. Therefore, s 39(1) allows a breach of s 38(1) to supply the unlawfulness element in any cause of action that requires it (Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (LexisNexis, 2008) 126; see also Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [215] (Weinberg JA)).
11. Evans and Evans give the following examples of existing causes of actions or proceedings which they say ‘may now have a wider scope because the unlawful conduct that is required to be proved in each of them has been expanded to include violation of Charter rights’:
    • The courts’ discretion to exclude evidence obtained as a result of unlawful or improper conduct
    • The tort of misfeasance in public office
    • The tort of false imprisonment
    • Industrial torts, such as for interference with a contract (Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (LexisNexis, 2008) 126-127).
12. For example, courts have a discretion to exclude evidence when that evidence is obtained as a result of unlawful or improper conduct. When a public authority, like the police, acts incompatibly with Charter rights, they are acting unlawfully in terms of s 38(1). So if the police acted incompatibly with Charter rights in obtaining evidence, the evidence would have been obtained as a result of unlawful conduct and the discretion to exclude the evidence is enlivened.
13. This approach to s 39 was adopted in Slattery, when VCAT found that it could consider whether s 38(1) had been breached because the unlawfulness of the Council’s decision to maintain the ban on Mr Slattery entering any Council premises was the issue before VCAT in the proceedings. VCAT was dealing directly with the question of whether the Council’s act or decision was lawful in order to determine whether it was in breach of the Equal Opportunity Act 2010 (Slattery v Manningham City Council [2013] VCAT 1869 [156]–[160]).

    Administrative law remedies

14. Section 39(1) also plays a role in expanding existing administrative law remedies, such that a breach of the Charter can be a ground for judicial review in certain circumstances. However, the availability of judicial review will depend on whether the condition in s 39(1) is met, that is whether, aside from the Charter, relief or remedy in respect of an act or decision of a public authority could have been sought on the ground that the act or decision was unlawful.
15. Commentators and the courts have identified two competing interpretations to the condition in s 39. They are known as the ‘factual availability’ and ‘abstract availability’ interpretations respectively. These interpretations can be explained as follows:

    Taking as an example a case where the non-Charter relief or remedy is based on judicial review, does s 39 require that the plaintiff must in fact have a non-Charter ground for seeking judicial review, or does it merely require that the act or decision in question is amenable to judicial review in the abstract, that is, without regard to the facts of the particular case? (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [394] (Tate JA), citing Mark Moshinsky QC, ‘Bringing Legal Proceedings Against Public Authorities for Breach of the Charter of Human Rights and Responsibilities’(2014) 2 Judicial College of Victoria Journal 91, 96).

16. The ‘abstract availability’ approach can be equated with having standing to apply for judicial review of the administrative conduct in question. Therefore, although the Charter does not itself supply a free standing cause of action for judicial review, under the abstract approach, s 39(1) would, in effect, provide a direct right to a remedy for breach of the obligations the Charter places on public authorities.
17. ‘Abstract’ availability appears to be analogous to the approach to s 39(1) described above in ‘Unlawfulness as an element in an existing cause of action’. The applicant would need to show all the other required elements of the relevant administrative law action, using existing rules and procedures, but the breach of s 38(1) would supply the unlawfulness ground of review (Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (LexisNexis, 2008) 134).
18. The factual availability approach, on the other hand, requires a traditional ground of administrative review to be relied on in the same legal proceedings before an additional Charter ground may also be raised. Under the factual approach, the traditional non-Charter ground must be a genuine one, that is, not susceptible to strike out, but it need not be finally determined or successful in order to meet the requirements of the s 39(1) condition (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [303]; Director of Public Prosecutions v Debono [2013] VSC 407 [82]; Goodev Common Equity Housing [2014] VSC 585 [28]–[29]; Burgess v Director of Housing [2014] VSC 648 [217]; Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251 [549]-[550]).
19. The question of which of these approaches to the interaction of s 39(1) and judicial review is correct remains open (Bare v IBAC [2015] VSCA 197 [396] (Tate JA), see also [125]–[126], [134]–[135], [150] (Warren CJ)).
20. In Sudi, Maxwell P held that the condition in s 39(1) would be satisfied in an application for judicial review, whether at common law in accordance with Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 or under the Administrative Law Act 1978 (Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [97] (Maxwell P)). It was not clear, however, whether Maxwell P was referring to the abstract or the factual approach to the interpretation of s 39.
21. In Sabet v Medical Practitioners Board of Victoria, s 39 was available to the applicant because he sought relief in the nature of certiorari and an injunction, on the ground of denial of natural justice. He was therefore able to seek the same relief on the ground that the decision was unlawful under s 38 of the Charter (Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414; [2008] VSC 346 [105]). The circumstances in Sabet are compatible with either the abstract or the factual interpretation of s 39(1).
22. Similarly, in Patrick’s Case, Bell J found that the condition for the operation of s 39(1) would be satisfied in judicial review proceedings, or in statutory appeals on questions of law, on grounds of Wednesbury unreasonableness, improper purpose or breach of the rules of natural justice, all of which would result in unlawfulness if successful (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [297]–[303]; see also Goodev Common Equity Housing [2014] VSC 585 [26]–[39];Director of Public Prosecutions v Debono [2013] VSC 407 [81]–[82]).
23. In Goode, the satisfaction of the condition appeared to turn on the tribunal’s jurisdiction to hear the matter, rather than whether any non-Charter ground of unlawfulness was actually determined or rejected (Goodev Common Equity Housing [2014] VSC 585 [26]–[39]). This appears to support the abstract approach, but it does not preclude the factual approach.
24. In Debono, the s 39(1) condition was satisfied by the availability of a collateral challenge to the validity of an administrative act. The applicant had a right, in the context of a criminal proceeding, under s 199(1)(c) of the Criminal Procedure Act 2009 to seek relief or remedy, in the form of an order quashing the relevant charge. This right was independent of the Charter, and was found to satisfy the s 39(1) condition (Director of Public Prosecutions v Debono [2013] VSC 407 [85]–[86]); cf Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [282] (Weinberg JA)).

    Jurisdiction: judicial review

25. The Supreme Court is the only court that has judicial review jurisdiction, including with respect to the compliance of public authorities with s 38. Inferior courts have only ‘collateral review’ jurisdiction, that is, they may hear a challenge to the validity of an administrative decision that validly arises as an incident to the proceedings before that court.
26. Whether a lower court can undertake collateral review is a matter of construing the statutory provisions conferring jurisdiction on the court, and any privative clauses limiting the review of the administrative action. It will also depend on whether the review is for jurisdictional error (Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [27]–[28] (Warren CJ), [66] (Maxwell P), [221]–[225] (Weinberg JA)). See ‘Breach of s 38(1): jurisdictional or non-jurisdictional error?’ in 3.2. Obligations on public authorities (s 38) above.
27. VCAT has no jurisdiction to undertake collateral review in respect of the s 38 obligations on public authorities when hearing an application by the Director of Housing for possession of public housing (Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [14] (Warren CJ), [62]–[63] (Maxwell P), [281] (Weinberg JA)). In Sudi, the Court of Appeal found that the Residential Tenancies Act 1997 did not confer any jurisdiction on VCAT to decide on the lawfulness of the Director’s decision to apply for possession. It also found that neither the Victorian Civil and Administrative Tribunal Act 1998 nor the Charter conferred any original review jurisdiction on VCAT.
28. Because VCAT did not have jurisdiction under the Residential Tenancies Act 1997 to hear a collateral challenge to the lawfulness of the Director’s decision, it could not hear such a challenge on Charter grounds either, since the condition in s 39(1) was not met. However, where an applicant is entitled to seek relief or remedy in VCAT on a non-Charter ground of unlawfulness, the condition will be met and VCAT will have jurisdiction to hear the s 38(1) matter (Goodev Common Equity Housing [2014] VSC 585 [32]–[35]).
29. However, VCAT can also determine whether a public authority has complied with s 38 when that question arises directly in the course of proceedings. For example, where the unlawfulness of such conduct is an element of the cause of action in the proceeding or where illegality on the part of that public authority is a defence to the cause of action (Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [152] (Weinberg JA); see, eg, Slattery v Manningham City Council [2013] VCAT 1869 [156]–[160]).

    No effect on non-Charter rights to seek relief or remedy (s 39(2))

30. Section 39(2) preserves existing rights to seek judicial review or a declaration of unlawfulness on non-Charter grounds. The subsection states:

    (2) [Section 39] does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—

    (a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

    (b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

    Damages (ss 39(3) – (4))

31. Section 39(3) – (4) state:

    (3) A person is not entitled to be awarded any damages because of a breach of this Charter.

    (4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

32. The prohibition on awarding damages for breach of the Charter was intended to focus remedies on ‘practical outcomes rather than monetary compensation’ (Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1294 (Rob Hulls, Attorney-General)).
33. Section 39(3) is said to confirm Parliament’s intention that the Charter not introduce an independent cause of action or type of relief (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 29).
34. The relationship between s 39(3) and s 39(1), which allows any relief or remedy to be sought, has not been definitively determined. On one view, s 39(3) seems clear enough to preclude damages in any proceedings in which s 38(1) is relied on to establish unlawfulness on the part of a public authority, as an award of damages in those circumstances would be ‘because of a breach of [the] Charter’.
35. However, Evans and Evans have argued that s 39 should be interpreted as allowing a remedy for breach of Charter rights whenever possible. They argue that damages should be allowed for a breach of s 38(1), whenever that breach supplies the unlawfulness element in a pre-existing cause of action for which damages may be awarded, such as the tort of misfeasance in public office (Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (LexisNexis, 2008) 128 - 129).

 

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