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A practical guide to application of the Victorian Charter of Human Rights to administrative decision-making

By Claire Thurstans

• 20 August 2018 • 12 min read
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This article draws attention to the two main obligations that a decision-maker should be aware of: the Procedural Obligation and the Substantive Obligation.

We all know about the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). It’s been around for over a decade now. But do you know how (and whether you need to) use it in your everyday decision-making?

In this article, we provide a “refresher” on the Charter, and set out some practical guidance as to how you – a public authority – should be using it in your capacity as a decision-maker.

We consider some of the broader context first, including what human rights are, and the key obligations for public authorities under the Charter. Then we move into specific questions that you might have about how you should apply the Charter in administrative decision-making.

What are human rights?

First thing’s first: the Charter is all about protecting human rights. So what are they?

We’ve set the human rights specifically identified in the Charter in the table below:

Recognition and equality before the law Right to life Protection from torture and cruel, inhuman or degrading treatment Freedom from forced work
Freedom of movement Privacy and reputation Freedom of thought, conscience, religion and belief Freedom of expression
Peaceful assembly and freedom of association Protection of families and children Taking part in public life Cultural rights
Property rights Right to liberty and security of person Humane treatment when deprived of liberty Rights for children in criminal processes
Fair hearing Rights in criminal proceedings Right not to be tried or punished more than once Right not to be subject to retrospective criminal laws

Justified limitations on human rights

Importantly, the Charter allows for the above human rights to be limited or overridden in certain circumstances (justified limitations):

  • Justification in free and democratic society: human rights can be reasonably limited where the limitation “can be demonstrably justified in a free and democratic society.”
  • Parliament: Parliament can pass laws which are incompatible with human rights.
  • Inability to act differently: a public authority can act in a way or make a decision that is incompatible with human rights if they could not have reasonably acted differently or made a different decision.

What are the key obligations for public authorities under the Charter?

There are two key obligations relevant for public authorities when making administrative decisions, which are contained in section 38(1) of the Charter:

  • Substantive Obligation: the obligation for public authorities to act compatibly with human rights.
  • Procedural Obligation: the obligation for public authorities to give proper consideration to a relevant human right when making administrative decisions.

Both of the obligations are intertwined. In the process of making the decision, the public authority must give proper consideration to relevant human rights (Procedural Obligation) and the public authority’s final decision must be compatible with human rights (Substantive Obligation).[1]

I am a decision-maker. Does this mean the obligations under section 38(1) apply to me?

You will generally have to comply with the obligations under section 38(1) if you are a public authority and your actions, inactions, or decisions have any impact or potential impact on any human rights.

However, you will not have to comply with the obligations under section 38(1) if one of the following applies:[2]

  • You are not a public authority
    • the obligations under section 38(1) only apply to public authorities (including agents of public authorities). Public authorities include public sector employees, local councils, and police, amongst others.
  • You could not have reasonably acted differently or made a different decision
    • section 38(1) does not apply if the public authority could not have acted differently or made a different decision as a result of a statutory provision or law. Therefore, if you do not have a lot of discretion about your decision-making process or decision, because, for example, it is prescribed under statute, the obligations under section 38(1) might not apply.
  • Your decision is of a private nature
    • if you fall within the definition of “public authority”, decisions you make or actions you take will not be subject to the Charter if they are of a private nature. Decisions or actions of a “private nature” include things done outside of work (personal things, for example, who you choose to associate with outside of work and where and how you spend your personal time).

So, the section 38(1) obligations apply to me. What does that mean I have to do in practice?

If you think that the section 38(1) obligations do apply to you, you might be wondering what (in practical terms) that means you have to do to comply with the Charter.

Procedural Obligation

The gist of the Procedural Obligation is that you (the public authority) must give “proper consideration” to human rights. There’s no precise formula as to how this is to be done as a matter of practice. But Courts have come up with some useful guidance.

First of all, you are not expected to magically turn into a human rights law expert in order to comply with section 38(1) – you don’t have to have “textbooks on human rights at [your] elbows”.[3]

Rather, what you do need is to seriously turn your mind to how your decision might impact someone’s human rights and weigh that up against other relevant factors in the decision-making process.[4] More specifically, you need to:[5]

  • have a general understanding of which rights of the person affected by the decision may be relevant
  • seriously turn your mind to the possible impact of the decision on a person’s human rights and the implications for that person
  • identify countervailing interests or obligations
  • balance competing private and public interests.

Also, Courts have confirmed that even if you comply with the Procedural Obligation, if your final decision is in fact incompatible with a relevant human right (unless it falls within a justified limitation, as discussed above) you will still have breached the Substantive Obligation under section 38(1).[6]

Substantive Obligation

In essence, pursuant to the Substantive Obligation, a public authority cannot “act” in a way that is incompatible with a human right, including making a decision that is incompatible with a human right.

However, a decision that is incompatible with a human right will not be prohibited under the Charter if any interference with humans rights amounts to a justified limitation.[7]

So, if you make a decision you think seems to be incompatible with a human right, you will need to consider the nature of the right, whether there is a less restrictive decision you could make that is reasonably available that would achieve the same purpose, but has less of an impact on the right and consider whether the decision is a justifiable limitation on those rights – or not. If not, your decision may end up being challenged in a Court or Tribunal.

What could happen if I don’t comply with my obligations under s 38(1)?

If you don’t comply with your obligations under s 38(1), a person can bring a claim against you for a breach of human rights – but only if they have another proceeding on foot. There is not a separate cause of action for breaches of the Charter.[8]

In practice, this means a person may bring one of the following actions, and incorporate a ground within their application for breach of the Charter:

  • judicial review of a decision either under the Administrative Law Act 1978 (Vic) or the Supreme Court (General Civil Procedure Rules 2005 (Vic)
  • discrimination under anti-discrimination legislation such as the Equal Opportunity Act 2010 (Vic) (EOA).

So what are the remedies if a Court or other adjudicator finds that there has been a breach of the Charter? Well, unfortunately, the remedies provision of the Charter – section 39(1) – is by no means clear.[9] The provision has actually been described as “extraordinarily difficult to follow”.[10]

The best answer is that it depends what remedies are available under the particular Act under which the Charter ground is brought. For example, if someone commences a judicial review proceeding, the remedy available to them for a breach of the Charter may include invalidating the decision. Whereas, for a proceeding under the EOA, if a breach of the Charter is found, a person might be entitled to compensation.

Courts are likely to consider three factors in deciding whether or not there has been a breach of a human right under the Charter:

  • has a Charter right been engaged?
  • if so, did the public authority impose any limitation on the right?
  • was the limitation reasonable and justified within the circumstances set out in s 7(2)?[11]

Concluding remarks

Even though the Charter has been around for over a decade, there may still be some uncertainty around how it should be applied by public authorities on a day-to-day basis when making decisions. This article has drawn attention to the two main obligations that you, as a decision-maker, should be aware of: the Procedural Obligation (that is, your obligations during the decision-making process) and the Substantive Obligation (that is, your obligations with respect to the impact of your final decision). In order to comply with these obligations, you will need to genuinely engage with the Charter and seriously turn your mind to the issues highlighted in this article, and ensure decisions are compatible with human rights in all situations (other when a justified limitation is applicable.)

[1] See Certain Children v Minister for Families and Children (No 2) [2017] VSC 251 at [177].

[2] There are also other exclusions from the application of s 38(1) that are not referred to in this article.

[3] Ibid 442 [311] cited in De Bruyn (2016) 48 VR 647, 701 [142].

[4] Castles v Department of Justice (2010) 28 VR 141 at [185] – [186].

[5] See for example Bare v IBAC [2015] VSCA 197 at [288] referring to Castles v Secretary of the Department of Justice (2010) 28 VR 141.

[6] See for example PJB v Melbourne Health (Patrick’s Case) [2011] VSC 327 at [312].

[7] See for example Kracke v Mental Health Review Board [2009] VCAT 646 at [99].

[8] See s 39 of the Charter.

[9] For a discussion, see Gans. J, ‘the Charter’s Irremediable Remedies Provision’ (2009) 33 Melbourne University Law Review 105.

[10] Director of Housing v Sudi [2011] VSCA 266 at [214].

[11] See Sabet v Medical Practitioners Board [2008] VSC 346 at [108].

Need guidance on the Charter?

Contact the Administrative Law team.

By Claire Thurstans

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