Human Rights & Responsibility Act ~ Section 13.

  • Section 13 states:

  • Privacy and reputation

    A person has the right—

    (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

    (b) not to have his or her reputation unlawfully attacked.

  • The right in s 13 is a negative obligation which comprises prohibitions on:
    • unlawful or arbitrary interference with a person’s privacy, family, home or correspondence; and
    • unlawful attacks on a person’s reputation.
  • Section 13 contains internal limitations. It permits lawful and non-arbitrary interferences with a person’s privacy, and lawful attacks on a person’s reputation.
  • To the extent that it protects against arbitrary interferences, s 13 was intended to be interpreted consistently with Victoria’s existing information privacy and health records framework (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 13). Schedule 1 of the Privacy and Data Protection Act 2014 provides Victoria’s Information Privacy Principles. If an act done or practice engaged in by an organisation is contrary to or inconsistent with those principles, it will constitute an interference with a person’s privacy for the purposes of that Act (Privacy and Data Protection Act 2014, s 16(a)). As noted in Jurecek v Director, Transport Safety Victoria (2016) 260 IR 327; [2016] VSC 285 at [65], s 13 of the Charter interacts with Victorian privacy legislation at least in the sense that ss 32(1) and 38 of the Charter apply to the interpretation and application of the Information Privacy Principles.
  • Section 13 is modelled on art 17 of the ICCPR (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 13).
  • Article 17 states that:

    1 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence nor to unlawful attacks on his honour and reputation.

    2 Everyone has the right to the protection of the law against such interference or attacks.

  • Bell J has stated that there is no difference between the scope of s 13 and the scope of art 17(1) (Kracke v Mental Health Review Board (General) (2009) 29 VAR 1; [2009] VCAT 646 [591]). This recognises that s 13 does not include an equivalent to the art 17(2) right to the protection of the law against the interferences or attacks of the kind described by s 13.
  • Much of the international jurisprudence on the privacy right relates to art 8 of the European Convention on Human Rights. There are differences between art 8, art 17 of the ICCPR and s 13 of the Charter, which should be borne in mind when referring to international materials. Article 8 of the European Convention reads:

    Right to respect for private and family life

    1 Everyone has the right to respect for his private and family life, his home and his correspondence.

    2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the right and freedoms of others.

Scope of the right

Privacy, family, home or correspondence

  1. Section 13(a) protects four items from unlawful or arbitrary interference:
    • Privacy
    • Family
    • Home
    • Correspondence
  2. The Charter does not define any of the above terms. However, some have been judicially considered either in Victoria or elsewhere.

    Privacy

  3. In Kracke, Bell J read ‘privacy’ as equivalent to the interpretation of ‘private life’ in art 8 of the European Convention on Human Rights. In that context, it ‘is a broad term not susceptible to exhaustive definition’ (Bensaid v United Kingdom [2001] ECHR 82, Application No. 44599/98, [47]; Pretty v United Kingdom [2002] ECHR 427, Application No. 2346/02, [61]; cited in Kracke v Mental Health Review Board (General) (2009) 29 VAR 1; [2009] VCAT 646 [593]).
  4. Bell J summarised the scope of the s 13(a) right to privacy as follows:

    The purpose of the right to privacy is to protect people from unjustified interference with their personal and social individuality and identity. It protects the individual’s interest in the freedom of their personal and social sphere in the broad sense. This encompasses their right to individual identity (including sexual identity) and personal development, to establish and develop meaningful social relations and to physical and psychological integrity, including personal security and mental stability.

    The fundamental values which the right to privacy expresses are the physical and psychological integrity, the individual and social identity and the autonomy and inherent dignity of the person (Kracke v Mental Health Review Board (General) (2009) 29 VAR 1; [2009] VCAT 646 [619]-[620]).

  5. ‘Privacy’ in s 13(a) has been read to include:
    • forcibly medicating a person: the making or reviewing of an involuntary treatment order or community treatment order under the Mental Health Act 2014 would constitute an interference with a person’s privacy (see, eg, Kracke v Mental Health Review Board (General) (2009) 29 VAR 1; [2009] VCAT 646 [735]-[736], noting that this decision related to the Mental Health Act 1986)
    • names and addresses: it will be an interference with privacy for a public authority to demand that a person provide their name or address (DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [132]–[134])
    • ‘territorial privacy’: in combination with s 13(a)’s prohibition on interferences with a person’s family and home, a balcony that overlooks a neighbour’s property would interfere with the neighbour’s ‘territorial privacy’ (See, eg, Smith v Hobsons Bay CC (Red Dot) (2010) 175 LGERA 221; [2010] VCAT 668 [7])
    • potentially, restrictions on employment: in ZZ v Secretary, Department of Justice, Bell J assumed, without deciding, that s 13(a) could be engaged if an employment restriction sufficiently affected an individual’s personal relationships and capacity to experience a private life (ZZ v Secretary, Department of Justice [2013] VSC 267 [94]). In that case, the refusal to issue a notice under the Working with Children Act 2005 interfered with the applicant’s privacy because it prevented him from pursuing employment for which he was qualified, in circumstances where other fields of employment were not reasonably available and he may have ended up unemployed and socially isolated if unable to pursue his chosen employment. Thus, the refusal decision affected his capacity to develop personal relationships and have a private life.
  6. In each of these situations, the question becomes whether the interference is unlawful or arbitrary, or could be demonstrably justified according to the terms of s 7(2) (Kracke v Mental Health Review Board (General) (2009) 29 VAR 1; [2009] VCAT 646 [596]).

    Family

  7. ‘Family’ is given a broad interpretation under art 17 of the ICCPR (UN Human Rights Committee, General Comment No.16: Article 17 (The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation), 32nd sess (8 April 1988), UN Doc HRI/GEN/1/Rev.9 (Vol. I) [5] (‘General Comment No. 16’)). A similarly broad interpretation is likely to be followed in relation to s 13(a) (Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 [33]).
  8. This aspect of s 13(a) is related to s 17(1) of the Charter, which states that families are entitled to protection by society and the State. Section 17(1) imposes a positive obligation on the State to ‘protect’ families, recognising that they are the ‘fundamental group unit of society’. For further information on the scope of s 17(1), see 6.11. Protection of families and children (s 17).
  9. Consistently with taking a broad approach to the interpretation of ‘family’ under s 13(a), Parliament stated that ‘families’ in the context of s 17(1) should recognise ‘the diversity of families that live in Victoria’ (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 14). It is possible that this was also itsintention with respect to the meaning of ‘family’ in s 13(a).
  10. While the meaning of ‘family’ in s 13(a) and s 17(1) may overlap, and the two rights will often arise together on the facts of a particular case, the rights themselves are not co-extensive. Section 13(a) is a negative obligation that only prohibits unlawful or arbitrary interferences with family; whereas s 17(1) is a positive obligation on society and the State.
  11. In Castles, Emerton J held that s 13(a) does not include the right to found a family. Under the European Convention on Human Rights, the art 8 obligation to respect a person’s private and family life has been extended to include respecting their decision to become a genetic parent. However, the Charter’s Explanatory Memorandum clearly states that Parliament did not intend for the protection of families and children provided by s 17 of the Charter to contain a right to found a family (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006,14). Emerton J held that this statement indicated that ‘Charter rights which might otherwise have encompassed rights to ART, recognition of legal parentage and adoption should be construed as not encompassing such rights’(Castles v Secretary to the Department of Justice (2010) 28 VR 141; [2010] VSC 310 [72]).

    Home

  12. ‘Home’ in the context of s 13 ‘is not based on ‘domestic notions of title, legal and equitable rights, and interests’ (Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 [32]; quotingHarrow London Borough Council v Qazi [2003] UKHL 43; [2004] 1 AC 983 [27]).
  13. Instead, the task of identifying a person’s ‘home’ is to be ‘approached in a common-sense and pragmatic way’, relying on a person demonstrating ‘sufficient and continuous links with a place’ (Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 [32]; quoting Harrow London Borough Council v Qazi [2003] UKHL 43; [2004] 1 AC 983 [9], [67]-[68]).
  14. In Patrick’s Case, Bell J held that Patrick’s house was his home for the purposes of s 13(a), although he had not lived in it for two consecutive years while he was in involuntary detention. The following points were relevant to that determination (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [57]):
    • Patrick owned the house and met all the financial obligations associated with ownership
    • He saw the house as his home, having spent many years living there as a husband and father
    • It was not an investment property, and had not been leased at all
    • Had he not been in involuntary detention, he would have been living there
  15. The Note to Charter s 4(1)(j) suggests that a court will be a public authority when dealing with the issuing of warrants. If that is the case, a magistrate issuing a search warrant under s 465 of the Crimes Act 158 would therefore be directly obliged to consider the impact of that decision on the s 13(a) right to privacy. For further information on when courts are public authorities, see 3. The Charter’s Effect on Public Authorities.
  16. The right not to have one’s home interfered with has particular importance in the area of public housing (Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 [31]). The serving of a notice to evict will constitute an interference with the s 13(a) right; and the question will then become whether the notice is lawful or arbitrary.

    Correspondence

  17. Bell J has said that this aspect of s 13(a) protects a person’s ‘capacity for communication (by whatever means) with others which is their correspondence’ (Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 [29]).
  18. Looking just to the ordinary meaning of ‘correspondence’, s 13(a) would protect against interferences with written correspondence, such as letters or emails which are intercepted, opened or read by a person other than an intended recipient.
  19. The Human Rights Committee has confirmed that art 17(1) extends to interferences with prisoner correspondence (UN Human Rights Committee, Views: Communication No R.7/27 (Pinkney v Canada), UN Doc CCPR/C/14/D/27/1977, (29 October1981)). The Corrections Act 1986contains a number of provisions which regulate the stopping and censorship of Victorian prisoner’s letters (see, eg, ss 47(1)(m), 47(1)(n) and 47D). While the Charter protects against unlawful and arbitrary interferences, interferences which follow the relevant requirements of the Corrections Act 1986 would be lawful, and would not infringe s 13(a).
  20. The Human Rights Committee has commented that art 17(1) extends to ‘[s]urveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations’ (UN Human Rights Committee, General Comment No. 16, [8]).
  21. Telephone interception in Victoria is regulated by the Telecommunications (Interception and Access) Act 1979 (Cth). Victoria Police are an agency for the purposes of that Act, and therefore able to apply for telecommunications intercept warrants. As a public authority under the Charter, they must act in a way that is not incompatible with Charter rights, and must not make a decision without giving proper consideration to relevant Charter rights, including s 13(a) (Charter s 38(1)).

    Interference

  22. Bell J has stated that ‘what amounts to an "interference" with the rights in s 13(a) is approached in a "simple and untechnical" manner’ (Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 [34]; quoting Harrow London Borough Council v Qazi [2003] UKHL 43; [2004] 1 AC 983 [12]).
  23. It is possible that an activity which is not sufficiently serious, or occurs in circumstances in which it could have been reasonably expected, will not be considered an ‘interference’ within the scope of s 13(a).
  24. For example, VCAT held that a protestor’s right to privacy was not affected by Victoria Police retaining group photographs from a protest which included her image. She was not named in the photographs, which were retained for training purposes and to assist with the management of future protests. Other photographs from the event, also containing her image, were publicly available on websites and social media. In the circumstances, she could not have reasonably expected privacy in the taking, publication or retention of photographs (Caripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 [62], citing Wood v Commissioner of Police of the Metropolis [2009] EWCA Civ414 [22] and Catt v the Commissioner of Police of the Metropolis [2012] EWHC 147 [39]).
  25. Similarly, a person who has committed a criminal offence cannot reasonably expect to exclude from his trial the evidence of witnesses who saw him commit the offence on the basis that his privacy has been interfered with (WK v The Queen (2011) 33 VR 516; [2011] VSCA 345 [73]).

    Internal limitation: Unlawful or arbitrary interference

  26. Section 13 contains internal limitations. If an interference with a person’s privacy, home, family or correspondence is lawful and not arbitrary, then it will not come within the scope of s 13(a). Similarly, a lawful attack on a person’s reputation will not come within the scope of s 13(b).
  27. If a proposed statutory provision, act or decision appears to interfere with a person’s privacy, then courts, legislators and public authorities should first consider whether the provision, act or decision would constitute a lawful and non-arbitrary interference. If so, the interference is not relevant to the application of s 13(a), and there is no need to undertake a s 7(2) proportionality analysis to determine whether the interference would constitute a reasonable limitation.
  28. While this approach has been followed in relation to s 13(a), the relationship between internal limitations contained in other Charter rights (such as s 21(2)-(3)) and the general limitations clause in s 7(2) is unclear. For more information about this, see 5.2. Limitations test under s 7(2).

    Unlawfully

  29. Lawful interferences with a person’s privacy, family, home or correspondence do not come within the scope of s 13(a), unless they are arbitrary. Similarly, lawful attacks on a person’s reputation do not come within the scope of s 13(b).
  30. In Burgess v Director of Housing, Macaulay J noted that an interference in s 13(a) would need to be ‘unlawful independently of the Charter’, it could not be unlawful only because of s 38 of the Charter (Burgess v Director of Housing [2014] VSC 648 [219]).
  31. Several Victorian laws permit what would otherwise constitute interferences with a person’s privacy. For example, the Serious Sex Offenders (Detention and Supervision) Act 2009 establishes a scheme for imposing supervision orders on eligible offenders within the meaning of the Act.
  32. Section 13 will not be engaged where information is to be provided under a lawful court order. For example, in Tikiri Pty Ltd v Fung, Ierodiaconou AsJ indicated that, were she to grant inspection of a list of a medical clinic’s patient names, provided to the Court through a confidential exhibit order, neither the order nor the grant of inspection would constitute an unlawful or arbitrary interference with privacy (Tikiri Pty Ltd v Fung [2016] VSC 460 [48]).
  33. Bell J has said that ‘in relation to the unlawful and arbitrary aspect, the terms of Art 17 of the covenant are not materially different to the terms of s 13 of the Charter. Such textual differences as do exist between the two do not bear on the meaning of these terms’ (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [78] (citations omitted)). In that respect, Human Rights Committee decisions have accepted that where an interference with privacy is provided for by law, it will not be ‘unlawful’ (see, eg, UN Human Rights Committee, Views: Communication No 488/1992 (Toonen v Australia), 50th sess, UN Doc CCPR/C/50/D/488/1992 (31 March 1994) [8.3]).
  34. In practice, an interference has generally been accepted as ‘lawful’ within the meaning of s 13(a) when it accords with an existing regulatory framework. For example, VCAT has held that while excessive noise from a hotel might breach the privacy of nearby residents, the available regulatory planning framework and guidelines for assessing sleep disturbances provide sufficient safeguards that, when followed, ensure that interferences are not unlawful (Swancom Pty Ltd v Yarra CC (Red Dot) (2009) 34 VPR 48; [2009] VCAT 923 [22]).
  35. Similarly, local planning schemes will generally balance one neighbour’s right to territorial privacy against another neighbour’s property right to renovate their property as they wish. A Council decision which properly addressed the relevant regulations would not be unlawful or arbitrary under s 13 (Smith v Hobsons Bay CC (Red Dot) (2010) 175 LGERA 221; [2010] VCAT 668 [31]).

    Arbitrarily

  36. A lawful interference with a person’s privacy, home, family or correspondence may still be arbitrary, and therefore come within the scope of s 13(a). However, this does not apply to s 13(b). A lawful attack on a person’s reputation will not come within the scope of s 13(b), even if it is arbitrary.
  37. There is some uncertainty about the meaning of ‘arbitrary’ in s 13(a). The two opposing views are the ‘human rights’ meaning and the ‘dictionary’ meaning. While the Court of Appeal is yet to decide the issue, the most recent authorities lean toward the position that:

    the human right in s 13(a) not to have your privacy, family, home or correspondence "arbitrarily" interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. (PJB v Melbourne Health (Patrick’s Case) [2011] VSC 327 [85]; see also DPP v Kaba [2014] VSC 52 [154]; ZZ v Secretary, Department of Justice [2013] VSC 267 [85]).

  38. The ‘human rights’ meaning was first outlined in Kracke, when Bell J drew on Human Rights Committee jurisprudence that any interference with a person’s privacy ‘must be proportional to the end sought and be necessary in the circumstances of any given case’ (Human Rights Committee, Views: Communication No 488/1992(Toonen v Australia), 50th sess, UN Doc CCPR/C/50/D/488/1992 (31 March 1994) [8.3], quoted in Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [171].
  39. However, in WBM v Chief Commissioner of Police (2010) 27 VR 469; [2010] VSC 219, Kaye J did not accept that an interference with a person’s privacy might be arbitrary if it was ‘unreasonable’ or ‘disproportionate’. According to his view, ‘arbitrary’ has a plain English meaning, and ‘ordinarily denotes a decision or action, which is not based on any relevant identifiable criterion, but which stems from an act of caprice or whim’ (WBM v Chief Commissioner of Police (2010) 27 VR 469; [2010] VSC 219 [51], [56]).
  40. On appeal, Warren CJ, with Hansen JA agreeing, found it unnecessary to decide between the two meanings (WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159 [120]). However, her Honour stated that the approach adopted by United Kingdom courts with respect to art 8 of the European Convention on Human Rights, in factually similar cases to the one before the court, could help to decide ‘what amounts to an "arbitrary interference" with privacy where arbitrariness is concerned with capriciousness, unpredictability, injustice and unreasonableness — in the sense of not being proportionate to the legitimate aim sought’ (WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159 [114]).
  41. Although the issue has not been definitively settled, the Court of Appeal in WBM seems to confirm that the ‘human rights’ meaning is appropriate (see, eg, DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [154]; ZZ v Secretary, Department of Justice [2013] VSC 267 [85]). VCAT has cited Warren CJ to say that in s 13(a) ‘[a]rbitrary refers to something which is unjust, capricious, unpredictable, unreasonable or disproportionate’ (see, eg, Raytheon Australia Limited (Human Rights) [2014] VCAT 1370 [109]).
  42. Elsewhere, in the context of the Charter’s s 21 right not to be arbitrarily deprived of liberty, Tate JA has expressed the view that the ‘human rights’ meaning of arbitrary applies (Victorian Toll v Taha; State of Victoria v Brookes (2013) 49 VR 1; [2013] VSCA 37 [198]–[199]).

    Unlawful attack on a person’s reputation

  43. Section 13(b) of the Charter provides that a person has a right not to have their reputation unlawfully attacked. This aspect of s 13 has not yet been substantially considered in Victorian courts.
  44. For information about the meaning of ‘unlawfully’, see above ‘Internal limitation: Unlawful or arbitrary interference’.
  45. Section 13(b) will often be considered together with s 15 of the Charter, since s 15(3)(a) states that the freedom of expression it prescribes is subject to lawful restrictions which are reasonably necessary ‘to respect the rights and reputation of other persons’.
  46. Section 13(b) is most likely to arise in the context of defamation laws. Since lawful attacks on a reputation do not come within the scope of this right, it would not be engaged by conduct which is defensible under the Defamation Act 2005.
  47. McAdam v Victoria University (Anti-Discrimination) [2011] VCAT 1262 may provide an example of the type of conduct which will not constitute an attack on a person’s reputation, and therefore not come within s 13(b). The applicant was a PhD candidate who argued that her reputation was attacked by the conduct of staff in Victoria University’s Psychology department. Among other things, the applicant claimed that a report of the School of Psychology’s Post-Graduate Research Committee which outlined concerns about her PhD pre-candidature proposal constituted an attack on her reputation. Judge Davis considered that it did not constitute such an attack, because the Committee’s views were expressed only to a limited circle of people and were a necessary part of the academic process of constructing and refining a PhD proposal (McAdam v Victoria University (Anti-Discrimination) [2011] VCAT 1262 [83]).

Reasonable and justified limits under s 7(2)

  1. Section 13 contains internal limitations which affect the scope of the right. Section 13(a) permits lawful and non-arbitrary interferences with a person’s privacy, and s 13(b) permits lawful attacks on a person’s reputation.
  2. The inclusion of s 7(2) in the Charter means that while an unlawful or arbitrary interference, or an unlawful attack, will engage the rights contained in s 13, they may still constitute a reasonable limitation on those rights.

    Reasonable and justified limits on s 13(a)

  3. If an interference with a person’s privacy, family home or correspondence is both lawful and not arbitrary, it will not be necessary to consider whether the interference is demonstrably justified according to the terms of s 7(2). However, where an interference is either unlawful or arbitrary, it will be necessary to undertake such an analysis.
  4. As discussed under ‘Scope of the right’, there is currently some uncertainty around the meaning of arbitrary in s 13(a). If the ‘human rights’ meaning is adopted, then an interference will be arbitrary when it has qualities of ‘capriciousness, unpredictability, injustice and unreasonableness — in the sense of not being proportionate to the legitimate aim sought’ (WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159 [114]).
  5. Taking a ‘human rights’ approach to arbitrariness will involve a degree of proportionality analysis, and will take into account some of the considerations set out in s 7(2). It is therefore likely that many of the factors which are required to be considered under s 7(2) will be dealt with at the time that a court or tribunal decides whether the statute, act or decision is arbitrary. If the court or tribunal decides that the interference is arbitrary in the ‘human rights’ sense, then the interference is also likely to limit the right in a way that cannot be demonstrably justified under s 7(2). Much of the s 7(2) analysis may already have been undertaken when deciding whether or not the interference was arbitrary.
  6. This is demonstrated in the VCAT decision of Raytheon Australia Ltd (Human Rights) [2014] VCAT 1370. The deciding member first outlined detailed reasons for finding that a proposed limitation on s 8 of the Charter (the right to equality) would be justified by s 7(2). When considering whether the s 13(a) right to privacy was also engaged, the tribunal member referred to her reasons for finding that s 8 was justifiably limited as supporting her view that the proposed interference with privacy was not arbitrary and therefore did not come within the scope of s 13(a). This meant that a further s 7(2) analysis was not required (Raytheon Australia Ltd (Human Rights) [2014] VCAT 1370 [109]-[111].
  7. If, however, the ‘dictionary’ meaning applies, then arbitrary simply ‘denotes a decision or action, which is not based on any relevant identifiable criterion, but which stems from an act of caprice or whim’(WBM v Chief Commissioner of Police (2010) 27 VR 469; [2010] VSC 219 [51]). Deciding that something is arbitrary according to the ‘dictionary’ meaning is unlikely to involve the kind of proportionality analysis required if the ‘human rights’ approach is adopted. Thus, greater attention may be required at the stage of addressing whether such an interference in a person’s privacy, family, home, or correspondence is justifiable under s 7(2).
  8. In Re Beth (No 3) [2014] VSC 121, the Secretary to the Department of Human Services sought orders which would limit the privacy of a 17-year-old intellectually disabled girl, Beth. The orders would authorise use of restrictive interventions to keep Beth in a residential facility. Interventions were required to be the least restrictive possible but could include locking internal areas and the use of reasonable force. Because the orders sought were limited in duration, provided for progress reports and required independent supervision of the order, Osborn JA was satisfied that the order constituted a reasonable limitation upon Beth’s right to privacy (and other Charter rights) (Re Beth (No 3) [2014] VSC 121 [10], [49]).

    Reasonable and justified limits on s 13(b)

  9. Lawful attacks on a person’s reputation do not come within the scope of s 13(b).Where a person’s reputation is unlawfully attacked, it will be necessary to consider whether the limitation that unlawful attack imposes on s 13(b) can be demonstrably justified within the terms of s 7(2).
  10. Where s 13(b) has been considered by Victorian courts, the right has not been engaged and therefore there has been no need to undertake the s 7(2) analysis (see, eg, McAdam v Victoria University (Anti-Discrimination) [2011] VCAT 1262 [83]). As such, there is currently very little Victorian judicial guidance as to what may constitute a reasonable limitation on s 13(b).
  11. While there is no equivalent to s 7(2) in the ICCPR, the Human Rights Committee have found that an unlawful attack on a person’s reputation could be permissible if it was reasonable within the circumstances of the case (see, eg, UN Human Rights Committee, Views: Communication No. 1482/2006 (M.G. v Germany), 93rd sess, UN Doc CCPR/C/93/D/1482/2006 (2 September 2008) [10.1]). This requirement of reasonableness requires a proportionality analysis akin to that set out in s 7(2) of the Charter, meaning that guidance may be available in Human Rights Committee jurisprudence.

 

 


 

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