IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION JUDICIAL REVIEW AND APPEALS LIST IN THE MATTER

of the Charter of Human Rights and Responsibilities Act 2006 BETWEEN: KIMBERLEY CASTLES and SECRETARY OF THE DEPARTMENT OF JUSTICE MICHELE GARDNER JOE HOVELL MANDY SMITH

No. SCL 2010 02170

Plaintiff

First Defendant Second Defendant Third Defendant Fourth Defendant

OUTLINE OF SUBMISSIONS OF THE VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION INTRODUCTION 1. The Victorian Equal Opportunity and Human Rights Commission (the Commission) intervenes as of right under s 40(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). 2. The Commission's intervention in any proceeding aims to advance the principles and objectives that underpin the enactment of the Charter, which are reflected in its Preamble, that: human rights are essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom; human rights belong to all people without discrimination, and the diversity of
Victorian Equal Opportunity and Human Rights Commission CD/10/176504

Filed on behalf of the:

the people of Victoria enhances our community; human rights come with responsibilities and must be exercised in a way that respects the human rights of others; human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australias first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters. 3. The Commissions role as intervener is to assist the Court in relation to the operation and effect of the Charter in these proceedings. 4. The Commission limits its submissions in the present case to the operation and proper construction of s 38 of the Charter. In doing so, it makes no submission on whether or not the conduct of the defendants was or was not unlawful for the purposes of s 38. The Commission further submits that the considerations

relevant to s 32 of the Charter are matters properly dealt with by the plaintiff and the defendants in light of the recently developed jurisprudence in relation to s 32 of the Charter.1 The Commission does not undertake a detailed analysis of the rights at issue in this case. It does however make brief submissions on the scope of the human rights engaged.

SUMMARY OF SUBMISSIONS

5.

It is submitted that: (a) The human rights engaged in the present case are the rights: (i) to recognition and equality before the law (s 8 of the Charter); (ii) not to be treated or punished in a cruel, inhuman or degrading way (if the failure to provide medical treatment is causing the requisite level of psychological suffering - s 10(b) of the Charter); (iii) not to have a persons privacy, family, home or correspondence unlawfully or arbitrarily interfered with (s

R v Momcilovic [2010] VSCA 50.

13(a) of the Charter); (iv) (v) to protection of families and children (s 17 of the Charter); to humane and respectful treatment when deprived of liberty (s 22(1) of the Charter). (b) A number of non-Charter human rights under international instruments to which Australia is a party are also engaged: (i) Article 16 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) which protects a womans right to decide on the number and spacing of her children and to have access to the information and means to do so; (ii) Article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR), which establishes the right to the highest attainable standard of physical and mental health, within the States available resources. This is understood as a right to the enjoyment of the facilities, goods, services and conditions necessary for health, accessible to everyone without discrimination. (c) Under s 38(1) of the Charter it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. The right(s) engaged under s 38(1) are not unqualified and may be subject to reasonable limitation in certain circumstances using the s 7 framework. This approach is consistent with Parliamentary intent. (d) Rights should be construed in the broadest way possible before consideration is given to whether they should be limited in accordance with s 7(2). (e) In a matter where the rights involve issues central to our humanity, such as the decision to procreate, the scope for a decision that limits the right is most narrowly confined. (f) An act or a decision for the purposes of s 38(1) should be interpreted to

include acts and decisions relating to process, including the allocation of resources to ensure timely actions and decisions in particularly time sensitive matters. The level of resources allocated to a decision or matter, and the urgency or timeliness with which a matter is treated, should both be carefully calibrated to the specific circumstances of the decision being made, and the nature of the rights being affected by it. This submission embodies the fact that time can, in cases such as the present one, extinguish the practical enjoyment of rights. (g) In cases involving urgent medical treatment the failure to make a timely decision will itself be unlawful under s 38 if the delay makes realization of the right practically impossible.

RELEVANT FACTS

6.

The plaintiff is currently incarcerated in Tarrengower, Victorias only minimum security womens prison. On 20 November 2009 she started serving a three-year sentence (with a non-parole period of 18 months) for an offence related to Centrelink overpayments. From November 2010 she will be eligible for home detention. As a low security prisoner Ms Castles is entitled to conjugal visits. She has her 2-year-old daughter living with her.

7.

In 2008 the plaintiff began IVF treatment. At the time she was 43 years old. Since that time she successfully fell pregnant once and subsequently miscarried. The plaintiff was due to recommence IVF in early 2010, and has requested since the start of her incarceration for this to be authorised.

8.

Once the plaintiff turns 46 on 9 December 2010 her doctor will no longer provide her with IVF treatment. Since being imprisoned she has made 14 requests to access IVF. Despite a number of indications that a decision would be forthcoming, the defendants have to date not made a decision in relation to the plaintiffs requests.

9.

The plaintiffs notice under s 35 of the Charter raises both s 32 and s 38 issues, namely:

Does s 47(1)(f) of the Corrections Act 1986, interpreted in accordance with the Charter, give the Plaintiff a right to have access to in vitro fertilisation treatment from Dr Jim Tsaltas at the Melbourne IVF Clinic in East Melbourne at the Plaintiffs own expense?

Is it unlawful for the Defendants to neglect, fail or refuse to grant the permits and approvals necessary to allow the Plaintiff to access the Medical Treatment at her own expense?

10.

As mentioned above at [4] the Commission makes submissions for the assistance of the Court in relation to s 38 of the Charter and in particular, seeks to establish the framework relevant to the application of that section in light of s 7 of the Charter. The Commission notes that there has not been, to date, a rigorous analysis of the relationship between ss 7 and 38 of the Charter as has been the case with s 32.

RIGHTS ENGAGED

11.

It is submitted that the Charter rights and non-Charter rights detailed in paragraphs 5(a) and (b), above, are engaged in the present case.

12.

The Commission goes no further in its submissions on this point other than to submit that at the point of deciding whether the rights are engaged on the facts, the rights should be construed in the broadest possible way. Once the rights are interpreted in that broad way, any conduct of a public authority that may be incompatible with the rights can be considered against the criteria in s 7(2) of the Charter in order to determine whether that conduct was incompatible with rights. That was the approach favoured by Warren CJ in Re an Application under the Major Crimes (Investigative Powers) Act 2004, who said:2 [H]uman rights should be construed in the broadest possible way. The purpose and intention of Parliament in enacting the Charter was to give effect to well recognised and established rights in the criminal justice

[2009] VSC 381 at [80].

system ... It should not be assumed that the Charter has narrowed traditional common law rights ... The Charter supports the approach that rights should be construed in the broadest possible way before consideration is given to whether they should be limited in accordance with s 7(2) of the Charter. That section serves the purpose of mitigating any damage to society that may arise from upholding an individuals right. (emphasis added) 13. In the same case, Warren CJ approved3 the reasoning of the Supreme Court of Canada in R v Big M Drug Mart Ltd,4 where it was said that: The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect ... This analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms. 14. Section 32(2) of the Charter confirms that, in identifying the scope of the rights protected by Part 2 of the Charter, regard should be had to relevant international and comparative jurisprudence.5

[2009] VSC 381, [128]. [1985] 1 SCR 295, 344. See also Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624, [53]; Andrews v Law Society of British Columbia [1989] 1 SCR 143, 175. 5 See s 32(3) of the Charter, which applies to the interpretation of the Charter itself as well as to the interpretation of other legislation.
4

SECTION 38 OF THE CHARTER

15.

Section 38(1) of the Charter provides: Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

16.

Section 38(1) is modelled on section 6 of the United Kingdom Human Rights Act 1998. In his second reading speech for the Charter, the Minister stated:6 Clause 38 is a key provision of the Charter. It seeks to ensure that human rights are observed in administrative practice and the development of policy within the public sector without the need for recourse to the courts

17.

18.

The Explanatory Memorandum7 explains that s 38(1) prohibits public authorities from doing two things: (a) (b) Acting in a way that is incompatible with human rights; and Failing to give proper consideration to relevant human rights when making a decision (emphasis added)

19. 20.

In this way, s 38 of the Charter has two limbs. Section 3(1) of the Charter defines act to include a failure to act and a proposal to act.

21.

Section 38(2) qualifies the prohibition in sub-clause (1). The prohibition does not apply if the public authority could not reasonably have acted differently or made a different decision as a result of a statutory provision or a provision made by or under an Act of the Commonwealth, or otherwise under law. The exclusion will apply where the provision gives no discretion to the public authority in the

Victorian Parliamentary Hansard, 4 May 2006, Assembly at 1293. Charter of Human Rights and Responsibilities Bill 2006, Explanatory Memorandum, p27.

exercise of its powers.

Where the provision does confer some measure of

discretion such that the public authority could have made a decision or acted in a way that was not incompatible with human rights, and provided the alternative course was reasonably open, s 38(1) will apply. It is submitted that in the present case, a discretion is conferred under s 47(1)(f) of the Corrections Act 1986, such as to trigger the operation of s 38(1) of the Charter. 22. Further qualifications are set out in sub-clauses (3) and (4). Section 38(1) does not apply to an act or decision of a private nature nor does the prohibition require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body from acting in conformity with its religious doctrines, beliefs or principles.

The nature of the obligations under s 38(1) Acting in a way that is incompatible with a human right

23.

It is submitted that what is incompatible with a human right must be assessed by reference to s 7(2) of the Charter (considered in detail below). An act of a public authority that in some way limits or restricts a human right will not be incompatible with the right if it is able to be demonstrably justified by the relevant public authority as a reasonable limitation or restriction, taking into account all relevant factors, including those in s 7(2)(a)-(e).

The nature of the obligations under s 38(1) Failing to give proper consideration to a human right when making a decision

24.

The proper consideration of human rights is mandatory in all cases where an administrative decision prima facie engages a relevant human right.

25.

The resolution of the question of whether or not a public authority has given or failed to give proper consideration to a human right when making a decision will depend on the margin of discretion that the courts will afford to the decisionmaker when assessing the reasonableness of a limitation on a right under s 7(2).

Courts may decline to find that a public authority has acted unlawfully where there is evidence that the public authority has given sufficient weight to the relevant human rights and the decision is one within a range of possible solutions acceptable under s 7. Indeed, in Sabet v Medical Practitioners Board of Victoria8 it was said by Justice Hollingworth that As far s 7(2)(e)9 is concerned, it is common ground that, in considering whether there is any less restrictive means available, there is no obligation on a public authority to choose the least intrusive means possible. Rather, the court is required to consider whether the chosen measure falls within a range of reasonable alternatives. 26. In this way, s 7(2) has work to do when considering whether or not a public authority has or has not failed to give proper consideration to a human right when making a decision.

Extending the obligations under s 38(1) allocation of resources for a timely decision

27.

The Commission refers to paragraph 5(f) above and submits that failing to act or failing to make a decision is not limited to the final decision only. The decisions that come prior to the final and substantive decision the decision about the priority to be given to a particular case (or request) and the resources allocated to making a final decision in relation to that request are important decisions that affect the impact on rights of the final decision. A decision that is not timely, in certain circumstances, may itself deny a person a human right. Those prior decisions should be made subject to s 38(1) of the Charter and be given the same treatment under a s7 analysis.

28.

Consistent with this submission, in cases involving urgent medical treatment the failure to make a timely decision will itself be unlawful under s 38(1) if the delay makes realization of the right impossible and the delay itself can not be justified under s 7(2).

[2008] VSC 346 at [188], citing RJR McDonald Inc v Attorney-General (Canada) [1995] 3 SCR 199 at [160]. 9 S 7(2)(e) of the Charter states as a factor, any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

29.

Urgent medical treatment is but one example where delay can make the realization of a human right impossible. Detention, false imprisonment, and other such decisions where a persons right is dependent on a timely decision, are other examples. Every case is to be looked at on the basis of its own set of circumstances when deciding whether or not a case or request is time sensitive or urgent from a rights perspective.

SECTION 7(2) OF THE CHARTER

30.

Section 7(2) prescribes the test to be applied to determine whether any legislative or administrative measure that limits the free exercise of a human right can be justified as reasonable and valid and sets out a non-exhaustive list of relevant factors that may be taken into account. It is therefore relevant to s 38 of the Charter, which governs administrative measures.

31.

In the second reading speech for the Charter, speaking broadly about the Charter the Minister said:10 The bill will promote better government by requiring government laws, policies and decisions to take into account civil and political rights. The Charter will make sure that there is a proper debate about whether proposed measures strike the right balance between the rights of Victorians and what limits can be justified in a free and democratic society. (emphasis added) Speaking specifically about s 7, the Minister said11: Clause 7 is a general limitations clause that lists the factors that need to be taken into account in the balancing process. It will assist courts and government in deciding when a limitation arising under the law is reasonably justified in a free and democratic society. Where a right is so limited, then action taken in accordance with the limitation will not be prohibited under the Charter, and is not

32.

10 11

Victorian Parliamentary Hansard, 4 May 2006, Assembly at 1290 Victorian Parliamentary Hansard, 4 May 2006, Assembly at 1291.

10

incompatible with the right. It is intended that the law in this context includes limitations specified by the common law as well as by statutory provisions. This approach is adopted in many modern human rights

instruments, such as those in the ACT, New Zealand, Canada and South Africa. The general limitations clause embodies what is known as the proportionality test. The weight to be attached to each of the factors listed in clause 7 will vary depending on the particular right and the circumstances that are being considered. There are some particular rights where it is necessary to detail some specific limitations. Such limitations are not exhaustive and do not exclude the application of the general limitations provision in clause 7. There are obviously many situations in which consideration of a human right may arise and it reflects common sense that the limits of the right should be determined by reference to the general limitations clause if there is no specific exception. (emphasis added) 33. It is submitted that this commentary makes clear that s 7 of the Charter is to be invoked when considering whether or not a public authority has acted in a way incompatible with a human right or failed to give proper consideration to a relevant human right in making a decision. 34. The Minister makes it clear that s 7 is directed not only to legislation but to administrative decisions. It is submitted that proposed measures, include legislative measures and administrative measures. The language is explicit, actions and considerations fall within the ambit of s 7 of the Charter. The section is directed to courts and government. Section 7 gives public authorities guidance upon which they are to direct and base their actions and decisionmaking processes. 35. Further, s 7(3) expressly engages public authorities by stating that: Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

11

36.

It is submitted that s 7 gives public authorities the framework under which to act and make decisions. To disengage s 7 from s 38 would be to disengage from the structure of the Charter itself and consequently from Parliamentary intent.

37.

It is further submitted that it is in the interests of all Victorians that public authorities use the general limitations provision when determining the limits of a right. In structuring the balancing process that administrative decision makers must undertake in matters that engage rights, the Charter is fulfilling its educative purpose.

38.

It is submitted that the question of what s 38(1) makes lawful and unlawful is not distinct from the issue of when the justification question under s 7(2) should be considered. This was a distinction made in Momcilovic12 in considering the interpretation of s 32 of the Charter. The distinction between s 32 and s 38 is that one relates to legislative measures whilst the other relates to administrative measures. An administrative measure is bound up in the consideration of reasonable limits. This is the proportionality test. The Courts apply this test but so must public authorities in their actions and decision-making when a right is engaged. If s 7(2) is not to be considered, how are public authorities to be guided by human rights considerations in their actions and decision-making?

The factors in s 7(2) 39. The Commission does not make submissions on the various factors in s 7(2) and how they should be applied to the present case. It is submitted however that a government party seeking to justify a limitation of human rights under s 7(2) will ordinarily be expected to demonstrate, by evidence, how the public interest is served by the rights-infringing provision. evidence needs to be led, and of what kind13. The nature and extent of the

infringement of rights sought to be justified will usually determine how much

12 13

[2010] VSCA 50 at [105]. R v Momcilovic [2010] VSCA 50 at [146]; Director of Housing v Sudi [2010] VCAT 328 at [123].

12

40.

Under s 1 of the Canadian Charter (on which s 7(2) was modelled), only those infringements of human rights are permitted which can be demonstrably justified in a free and democratic society. In Oakes Dixon CJ said14: When evidence is required in order to prove the constituent elements of a s 1 enquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit

41.

Warren CJ took a similar view in DAS v Victorian Human Rights & Equal Opportunity Commission where she said: The onus of demonstrably justifying the limitation in accordance with s 7 resides with the party seeking to uphold the limitation15. In light of what must be justified, the standard of proof is high. It requires a degree of probability which is commensurate with the occasion16. King J observed in Williams17 that the issue for the court is to balance the competing interests of society, including the public interest, and to determine what is required for the accused to receive a fair hearing. It follows that the evidence required to prove the elements contained in s 7 should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit.18

42.

The question of proportionality is at the heart of the enquiry mandated by s 7(2) of the Charter. As Dixon CJ said in Oakes:19 [O]nce a sufficiently significant objective is recognised, then the party invoking s 1 must show that the means chosen are reasonable and demonstrably justified. This involves a form of proportionality test. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view,

14 15

[1986] 1 SCR 103. Kracke [2009] VCAT 646 at [108]. 16 Bater v Bater [1950] 2 All ER 458, 459, per Lord Denning. 17 (2007) 16 VR 168, 181 (in reference to the decision of the Ontario Court of Appeal in R v McCallen (1999) 43 OR (3d) 56). 18 Oakes [1986] 1 SCR 103, 138. 19 [1986] 1 SCR 103, 139 (citations omitted; emphasis in original).

13

three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in the first sense, should impair as little as possible the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance.20 43. The Commission submits that in matters, such as the present, where the rights involve issues central to our humanity such as decisions about procreation, the scope for a decision that limits those rights is most narrowly confined. The Commission cites the recent decision of the European Court of Human Rights, Dickson v United Kingdom for this proposition. 44. In that case, the Court held that the policy of the UK government to grant access to artificial insemination with male prisoners sperm only in exceptional circumstances set the threshold too high against access, not allowing a balancing of the competing individual and public interests. The Court notes that where a particularly important facet of an individuals existence or identity is at stake (such as the choice to become a genetic parent), the margin of appreciation accorded to the State will in general be restricted.21 The Court held that there had been a violation of Article 8 of the European Convention, the equivalent of the Charters s 13 right to privacy and reputation.

Cited with approval in R v Momcilovic [2010] VSCA 50 at [147]; DAS v Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381, [148]. 21 Dickson v The United Kingdom (Application no. 44362/04), Strasbourg, 4 December 2007, per President Rozkalis at [77].

20

14

METHODOLOGY

45.

In Momcilovic the Court provided a step-by-step process to be undertaken in any analysis of s 32 of the Charter. A similar exercise was undertaken in relation to s 38 in Sabet v Medical Practitioners Board of Victoria22 where Hollingworth J accepted the usefulness of the following three step approach in analysing whether a public authority had complied with s 38 of the Charter: (a) (b) Has a Charter right been engaged? (the engagement question) If so, did the public authority impose any limitation on the right? (the limitation question) (c) Was any such limitation reasonable and justified within the circumstances set out in s 7(2) of the Charter? (the justification question)

46.

Post Sabet and in the case of Hakimi v Legal Aid Commissioner,23 Refshauge J in the Supreme Court of the ACT suggested a seven step test which essentially embraced the three steps in the Sabet analysis, with some variation, and added two prior and two subsequent steps: (a) (b) What is the act or decision the subject of challenge? Is the entity engaging in the relevant act or making the relevant decision a pubic authority under ss 40 and 40A? (s 4 of the Charter) (c) What is the human right engaged and what is its content? (the engagement question) (d) Is the relevant act or decision apparently inconsistent with, or does it impose a limitation on, any of the rights protected under Pt 3 of the Human Rights Act? (the limitation question) (e) Is the limitation reasonable, insofar as it can be demonstrably justified in a free and democratic society having regard inter alia, to the factors set out in s 28(2) of the Human Rights Act? To put it another way, is the limitation proportionate? (the justification question) (f) Even if the limitation is proportionate, where the matter involves making a

22 23

(2008) 2 VR 414 at [108]. [2009] ACTSC 48 at [51]-[53].

15

decision, did the decision-maker give proper consideration to the protected right? (g) Does the act or decision made under an Act or instrument give either no practical discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted under s 30 of the Human Rights Act consistently with the protected right? (s 38(2) of the Charter) 47. The Commission submits that this approach is helpful in fully spelling out the steps that are involved when invoking s 7(2) in the s 38 analysis. It is submitted however that the process articulated by the ACT Court would be better served if question (g) were asked at an earlier stage in the analysis.

C. Melis Counsel for the Commission Dated: 30 April 2010

16

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION JUDICIAL REVIEW AND APPEALS LIST

No. SCL 2010 02170

IN THE MATTER of the Charter of Human Rights and Responsibilities Act 2006 BETWEEN: KIMBERLEY CASTLES and SECRETARY OF THE DEPARTMENT OF JUSTICE MICHELE GARDNER JOE HOVELL MANDY SMITH First Defendant Second Defendant Third Defendant Fourth Defendant Plaintiff

SUBMISSIONS OF THE VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION (INTERVENING) I. 1. INTRODUCTION The Victorian Equal Opportunity and Human Rights Commission (the Commission) intervenes as of right under s 40(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). 2. The Commissions intervention is confined to making submissions concerning the operation of s 38 of the Charter. That section is one of the pivotal provisions in the Charter.1 This case provides the first occasion on which this Court will be required to examine its operation. Section 38(1) provides:
Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Charter of Human Rights and Responsibilities Bill 2006, Second Reading Speech, Victorian Parliamentary Hansard (Assembly), 4 May 2006, at 1293: Clause 38 is a key provision of the Charter.

Filed on behalf of the: Victorian Equal Opportunity and Human Rights Commission Level 3, 380 Lonsdale Street, Melbourne VIC 3000

Contact: Sarala Fitzgerald Telephone: (03) 9032 3421

3.

The First Defendant (the Secretary), the Second Defendant and the Third Defendant each admit that they are public authorities for the purpose of the Charter.2 Accordingly, they admit both that: (a) it is unlawful for them to act in a way that is incompatible with a human right; and (b) it is unlawful for them, in making a decision, to fail to give proper consideration to a relevant human right.

4.

In summary, the Commission submits that: (a) The decision of the Secretary in this case engages at least the right not to have a persons privacy, family, home or correspondence unlawfully or arbitrarily interfered with (s 13(a) of the Charter),3 and the right of all persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the person (s 22(1) of the Charter). (b) Section 38(1) of the Charter: (i) by imposing an obligation on public authorities not to act in a way that is incompatible with human rights, requires public authorities not to limit human rights unless that limitation is a reasonable limit that is demonstrably justified in a free and democratic society based on human dignity, equality and freedom. The assessment of whether a public authority has acted incompatibly with human rights requires the Court to engage in a proportionality analysis in which it must assess for itself whether the balance struck between competing considerations is justified; (ii) by imposing an obligation on public authorities in making decisions to give proper consideration to human rights, makes the rights identified in Part 2 of the Charter mandatory relevant

Defence, paragraphs 3, 4(d) and 5(b). Paragraph 6 of the Defence appears to deny paragraph 6(b) of the Statement of Claim, although issue is specifically taken only with paragraph 6(a). The denial of paragraph 6(b) is hard to reconcile with s 4 of the Charter. However, nothing turns on the status of the Fourth Defendant for the purpose of the Commissions submissions. Dickson v The United Kingdom [2007] ECHR 1050.

considerations for the purpose of all administrative decisions made by public authorities, and subjects such decisions to a higher standard of scrutiny than under the traditional relevant considerations ground of judicial review;4 (iii) imposes an onus on public authorities to prove, to a high standard, that any decision or action by them that limits human rights is necessary in a free and democratic society based on human dignity, equality and freedom. (c) Section 38(2) of the Charter gives effect to parliamentary sovereignty by ensuring that administrative action that is reasonably required by a valid law is not rendered unlawful by s 38(1). Where a public authority has a range of possible courses of action, s 38(2) is irrelevant, and s 38(1) limits the available options to those that are demonstrably justifiable having regard to the criteria in s 7(2) of the Charter. 5. The Commission does not seek to be heard on whether s 47(1)(f) of the Corrections Act 1986 (Vic) (the Act) can, pursuant to s 32 of the Charter, be interpreted as giving the Plaintiff a right to have access to in vitro fertilisation treatment at the Plaintiffs own expense. 6. The Commission likewise does not seek to be heard on any of the issues not related to the Charter.

II. 7.

SECTION 38 OF THE CHARTER The terms of s 38(1) of the Charter are set out above. The subsection plainly has, and was intended to have, 5 two limbs. It makes it unlawful: (a) to act (defined in s 3 to include a failure to act) in a way that is incompatible with human rights; and (b) in making a decision, to fail to give proper consideration to relevant human rights.

See Pound and Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (2008) [5070]. Charter of Human Rights and Responsibilities Bill 2006, Explanatory Memorandum, p 27.

8. 9.

The Plaintiff has alleged that both limbs of s 38 have been infringed.6 In order to determine whether a particular act or decision of a public authority is unlawful under s 38(1) of the Charter, it will often be helpful to ask the following questions:7 (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 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 reasonable and is it demonstrably justified having regard to the matters set out in s 7(2) of the Charter? (the proportionality 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)

(a) 10.

The engagement question The Plaintiff relies upon four human rights under the Charter. In interpreting each of those rights, Warren CJ has held that the Court should construe the rights in the broadest possible way.8 In expressing the same idea, Bell J said: 9

6 7

8 9

Statement of Claim, paragraphs 29 and 30. The first three steps are slightly modified versions of those set out in Sabet v Medical Practitioners Board (2008) 2 VR 414, [108] (Hollingworth J). The fourth and fifth steps are drawn from Hakimi v Legal Aid Commissioner [2009] ACTSC 48, [51]-[53] (Refshauge J). DAS v Victorian Equal Opportunity and Human Rights Commission [2009] VSC 381, [80]. Director of Housing v Sudi [2010] VCAT 328, [90]. See also Kracke v Mental Health Review Board [2009] VCAT 646, [75]-[91].

[T]he scope of a human right is identified in its plain state, purposefully and generously, by reference to the cardinal values which it expresses and focussing on the interests which it was meant to protect, without taking justification of potential limits into account.

11.

Similarly, in R v Big M Drug Mart Ltd10 the Supreme Court of Canada said, in a passage subsequently approved by Warren CJ: 11
The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect ... This analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms.

12.

On the facts of this case, the Commission submits that two of the rights relied upon by the Plaintiff are clearly engaged. As a result, it is unnecessary to consider the other rights upon which the Plaintiff relies.12

Privacy 13. Section 13(a) of the Charter concerns a persons right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily13 interfered with.

14.

Interpreting that right broadly and purposively in the manner identified above, it is apparent that: 14
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 individuals 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

10

11 12

13

14

[1985] 1 SCR 295, 344. See also Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624, [53]; Andrews v Law Society of British Columbia [1989] 1 SCR 143, 175. DAS v Victorian Equal Opportunity and Human Rights Commission [2009] VSC 381, [128]. For that reason, the Commission does not address the other rights identified in paragraph 29 of the Statement of Claim, being the right to recognition and equality before the law (s 8), the right not to be treated or punished in a cruel, inhuman or degrading way (s 10(b)); and the right to protection of families and children (s 17). The prohibition against arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the ICCPR, and should be, in any event, reasonable and proportionate in the particular circumstances: Human Rights Committee, General Comment No 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (1988) para 4. Kracke v Mental Health Review Board [2009] VCAT 646, [619]-[620].

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.

15.

In a similar vein, in R (Razgar) v Secretary of State for the Home Department, Lord Bingham stated:15
It is plain that "private life" is a broad term, and the court [the European Court of Human Rights] has wisely eschewed any attempt to define it comprehensively. It is relevant for present purposes that the court saw mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life . . . Elusive though the concept is, I think one must understand "private life" in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed ("The Developing Scope of article 8 of the European Convention on Human Rights" [1997] EHRLR 265, 270). "Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the State and society in ways which respect people's moral worth by taking account of their need for security.

16.

That broad approach should be adopted. Its application in the context of the present case is usefully illustrated by Dickson v United Kingdom, which concerned a refusal to allow a prisoner access to IVF services. The Grand

Chamber of the European Court of Human Rights found that that restriction violated Article 8 of the European Convention on Human Rights, which contains the equivalent right to s 13 of the Charter.16 The Grand Chamber said:17
The restriction at issue in the present case concerned the refusal to the applicants of facilities for artificial insemination ... The Court considers that Article 8 is applicable to the applicants complaints in that the refusal of artificial insemination facilities concerned their private and family lives which notions incorporate the right to respect for their decision to become genetic parents.

17.

The Grand Chamber concluded that the policy governing access to IVF set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test by the

15 16

17

[2004] 2 AC 368, [9]. See also Pretty v United Kingdom (2002) 35 EHRR 1, [61]. Note that Article 8 is expressed as a right to respect for his private and family life. That has been recognised as imposing both positive and negative obligations. Section 13 of the Charter is expressed in the negative. However, it is plain that that would not have affected the decision in Dickson, where the Court found it unnecessary to decide whether access to IVF involved the positive or negative obligation: see [2007] ECHR 1050, [70]-[71]. [2007] ECHR 1050, [65]-[66].

Secretary of State or by the domestic courts in their case, as required by the Convention.18 It accepted that, on the facts of that case (as in this case),

artificial insemination remained the only realistic hope of the applicants having a child together, and that this made the matter one of vital importance to them.19 The consequence was that the decision to deny access to IVF must be seen as falling outside any acceptable margin of appreciation so that a fair balance was not struck between the competing public and private interests involved.20 For that reason, the denial of access to IVF was held to violate Article 8 of the European Convention.

18.

On the basis of that decision, the Plaintiff has a strong argument that the conduct of the Defendants engaged her right to privacy.

Right of persons deprived of liberty to be treated with respect for inherent dignity 19. Section 22(1) of the Charter provides:
All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the person.

20.

As is apparent, that right is framed in very broad terms. The United Nations Human Rights Committee, in ICCPR General Comment No 21 concerning the humane treatment of persons deprived of liberty, has stated that this right (which is found in Article 10 of the ICCPR) imposes obligations over and above the right to be free from torture and other cruel, inhuman or degrading treatment or punishment.

21.

In particular, paragraph 3 of General Comment No 21 states that persons deprived of their liberty may not:
be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment. (emphasis added)

18 19 20

[2007] ECHR 1050, [82]. [2007] ECHR 1050, [72]. [2007] ECHR 1050, [85].

22.

The proposition that deprivation of liberty does not justify limitations on other rights is well recognized. For example, in R (Daly) v Secretary of State for the Home Department, for example, Lord Bingham said:21
Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order.

23.

The European Court of Human Rights made the same point more strongly in Dickson v United Kingdom,22 emphasizing that prisoners continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty. Any restriction on those rights must be justified in each individual case.23

24.

The above position clearly applies in Victoria. It is reflect in s 47 of the Act, because s 47(2) makes it clear that the express rights conferred on prisoners by s 47(1) of the Act are additional to any other rights that prisoners may have under any other Act or at common law.

25.

In giving content to s 22 of the Charter, it is relevant that: (a) s 32(1) of the Charter requires all statutory provisions a phrase defined in s 3 of the Charter to include the Charter itself to be interpreted so far as possible consistently with human rights. (b) s 32(2) of the Charter provides that international law may be considered in interpreting a statutory provision.

26.

Accordingly, when interpreting the human rights in the Charter, it is legitimate to look to other international treaties that may shed light on the meaning of those rights. That same point is acknowledged in the passage from R v Big M Drug Mart Ltd quoted above (see paragraph Error! Reference source not found.).

21 22 23

[2001] 2 AC 532, [5]. [2007] ECHR 1050, [67], quoting Hirst v United Kingdom (2006) 42 EHRR 41, [69]. [2007] ECHR 1050, [67].

27.

It follows that, in identifying what is required to treat a person with respect for the inherent dignity of the person, the provisions of other treaties to which Australia is a party are relevant. For present purposes, that requires attention to be given to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the International Covenant for Economic, Social and Cultural Rights (ICESCR). The relevance of those Conventions to ascertaining what is necessary to respect the inherent dignity of a person is expressly confirmed by the pre-amble to the ICESCR, which states "Recognizing that these rights derive from the inherent dignity of the human person ...". relevance: (a) Article 16(1)(e) of CEDAW requires States Parties to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and, in particular, to ensure, on a basis of equality of men and women the same rights to decide freely and responsibly on the number and spacing of their children; (emphasis added); (b) Article 10(1) of the ICESCR provides that State parties recognise that The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses; (c) Article 12 of the ICESCR provides that The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Of most

28.

The scope of Article 12 of the ICESCR is addressed by the United Nations Human Rights Committee in General Comment No 14. Of most relevance: (a) Paragraph 3 states that "The right to health is closely related to and dependent upon the realization of other human rights ... including the rights to ... human dignity. That paragraph thereby acknowledges the connection between the right to health, and the right protected by s 22 of

the Charter; (b) Paragraph 8 states that the right to heath includes the right to control one's health and body, including sexual and reproductive freedom; (c) Paragraph 9 recognises that [t]he notion of the highest attainable standard of health in article 12.1 takes into account both the individuals biological and socio-economic preconditions and the States available resources ... Consequently, the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health. The content of the right therefore varies depending upon the conditions of a specific individual; (d) Paragraph 18 notes that the ICESCR proscribes any discrimination in access to health care on grounds that include, inter alia, physical disability, civil, political, social or other status, if that discrimination has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health; (e) Paragraph 21 states that the realization of womens right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health; (f) Paragraph 34 provides that States are under an obligation to respect the right to heath by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, to preventive, curative or palliative health services; and abstaining from imposing discriminatory practices relating to womens health status and needs. In addition, it provides that States should refrain from limiting access to contraceptives and other means of maintaining sexual and reproductive health; (g) Finally, paragraph 44 identifies, as an obligation of comparable priority to the core obligations, the obligation to ensure reproductive, maternal (pre-natal as well as post-natal) and child health care.

10

29.

Both the CEDAW and the ICESCR recognize that decisions concerning the number and spacing of children, and access to health services, including in the area of sexual and reproductive health, are an aspect of the inherent dignity of a person that underlies all human rights. That assists in giving content to s 22(1) of the Charter, which itself recognizes the fundamental principle that whilst incarceration necessarily involves a limitation of the right to liberty, it correspondingly places an additional burden on the state to preserve human dignity notwithstanding that incarceration.

(b) 30.

The limitation question If the rights relied upon by the Plaintiff are engaged, it is clear that those rights have been limited by reason of the failure or refusal of the Defendants (or, at least, the Secretary) to grant a corrections administration permit pursuant to s 57A(1)(a) of the Act.

(c) 31.

The proportionality question The proportionality question will usually be the critical question in cases concerning s 38 of the Charter. In answering that question, great assistance is derived from cases concerning s 6 of the Human Rights Act 1998 (UK) (the HRA), which was the model for s 38(1) of the Charter.24 The Canadian cases concerning s 1 of the Canadian Charter are also of assistance, that section having provided the basic model for s 7(2) of the Charter.

32.

This section of the submissions addresses the issues raised by the proportionality question as follows: (a) (b) (c) (d) the burden and standard of proof; the content of the proportionality analysis; the standard of review required by proportionality analysis; the application of the proportionality analysis to this case.

24

Charter of Human Rights and Responsibilities Bill 2006, Explanatory Memorandum, p 27.

11

Burden and standard of proof 33. It is for the Defendants to show that any limitation on the Plaintiffs rights is reasonable and demonstrably justified in a free and democratic society, having regard to the specific matters identified in s 7(2) of the Charter. That was

accepted by Warren CJ in DAS, who said, in comments approved by the Court of Appeal in Momcilovic,25 that the onus of establishing that a limitation on a human right is justified is on the party seeking to uphold the limitation.26 34. In Momcilovic,27 the Court of Appeal accepted that in many cases evidence would be required to discharge that burden.28 Such evidence must be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit.29 The nature and extent of the infringement of rights that it is sought to justify will determine how much evidence needs to be led, and of what kind.30 35. Not only is the burden of proof on the Defendants, but the standard of proof is high.31 It requires a degree of probability which is commensurate with the occasion.32 The content of the proportionality analysis 36. Section 7(2) of the Charter expressly identifies the matters that must be considered as part of the proportionality analysis. In that respect, s 7(2) differs from the limitation provisions in other comparable jurisdictions (except South Africa). However, in DAS v Victorian Human Rights and Equal Opportunity

Commission (DAS), Warren CJ accepted that the analysis required by s 7(2) reflects the proportionality jurisprudence of comparable jurisdictions. In

particular, her Honour approved the decision of the Canadian Supreme Court in

25 26 27 28 29 30 31 32

R v Momcilovic [2010] VSCA 50, [144]. [2009] VSC 381 at [147], citing Kracke v Mental Health Review Board [2009] VCAT 646, [108]. R v Momcilovic [2010] VSCA 50, [144]. R v Momcilovic [2010] VSCA 50, [143]-[146]. R v Oakes [1986] 1 SCR 103, 138 (Dickson CJ). R v Momcilovic [2010] VSCA 50 at [146]; Director of Housing v Sudi [2010] VCAT 32, [123]. DAS v Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381, [147]. DAS v Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381, [147], citing Bater v Bater [1950] 2 All ER 458, 459 per Lord Denning.

12

R v Oakes.33 Speaking of s 7(2) of the Charter, Warren CJ said:34

The party seeking to justify the limitation must satisfy each of the factors in paragraphs (a)-(e), which broadly correspond to the proportionality test identified in Oakes. The notion of proportionality is a key principle embraced by the Charter and reflects the human rights jurisprudence of most comparable jurisdictions. Oakes appears to be an authoritative precedent in the field. In that case, it was said: There are three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair as little as possible the right or freedom in question ... Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance (citation omitted).

37.

That passage from Oakes was approved by the Court of Appeal in Momcilovic,35 and has also proved influential in both New Zealand36 and South Africa.37

38.

Oakes has also proved influential in the United Kingdom, despite the fact that the HRA does not contain an equivalent to s 7(2) of the Charter. Even in the

absence of an express limitations clause, the case law concerning s 6 of the HRA has developed so that United Kingdom courts are required to engage in an analysis of the same kind as is expressly required under s 7(2) of the Charter. 39. The leading case in the United Kingdom concerning that requirement is R (Daly) v Secretary of State for the Home Department (Daly),38 where Lord Steyn said:39
The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
33 34 35 36

37 38 39

[1986] 1 SCR 103, 139 (Dickson CJ). DAS v Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381, [148]. R v Momcilovic [2010] VSCA 50, [147]. R v Hansen (2007) 3 NZLR 1, [23], [42], [64], [103], [120], [185], [203]; Ministry of Transport v Noort [1992] 3 NZLR 260, 283-284. S v Manamela (2000) 3 SA 1; 5 BCLR 491, [32]. [2001] 2 AC 532. [2001] 2 AC 532, [27].

13

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

40.

Further, in Huang v Secretary of State for the Home Department,40 the House of Lords, having quoted from de Freitas, said:
This formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77

41.

The above clarification of the proportionality analysis was recently approved by the United Kingdom Supreme Court.41

42.

The endorsement of Oakes in the United Kingdom means that the United Kingdom approach to proportionality is not relevantly distinguishable from that required by s 7(2) of the Charter. There is therefore no difficulty translating the analysis in the United Kingdom cases concerning proportionality to the analysis required by s 7(2) of the Charter.

The standard of review required by proportionality analysis 43. The enactment of s 38(1) of the Charter has introduced a new standard of review into the law of Victoria in relation to the legality of the conduct and decisions of public authorities.

44.

That follows because, Parliament having enacted s 38(1) of the Charter in terms that are relevantly identical to s 6(1) of the HRA, it should be taken to have intended s 38(1) to operate in the same way as s 6(1) of the HRA. That is particularly true given that the Explanatory Memorandum for the Charter states (p

40 41

[2007] 2 AC 167, [19]. R (on the application of F (by his litigation friend F)) and Thompson (FC) v Secretary of State for the Home Department [2010] UKSC 17, [17]. The

14

27) that s 38(1) is modelled on section 6 of the United Kingdom Human Rights Act 1998 and is intended to ensure that public authorities make decisions and act compatibly with human rights. 45. The standard of review required by proportionality analysis under s 6 of the HRA was explained by Lord Steyn in Daly, in an opinion that the House of Lords has described as justly-celebrated and much-quoted. 42 Lord Steyn said:43
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach ... The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality But the intensity of review is somewhat greater under the proportionality approach ... I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights [T]he intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, "that the intensity of review in a public law case will depend on the subject matter in hand". That is so even in cases involving Convention rights. In law context is everything.

46.

In Huang, the House of Lords clarified Lord Steyns comment in Daly that what was involved in the analysis was not merits review. Their Lordships said:44
This statement has, it seems, given rise to some misunderstanding ... The point which, as we understand, Lord Steyn wished to make was that, although the Convention calls for a more exacting standard of review, it remains the case that the judge is not the primary decision-maker. It is not for him to decide what the

42 43 44

Huang v Secretary of State for the Home Department [2007] 2 AC 167, 184 [13]. [2001] 2 AC 532, [28] (emphasis added). Huang v Secretary of State for the Home Department [2007] 2 AC 167, [13] (emphasis added).

15

recruitment policy for the armed forces should be. In proceedings under the Human Rights Act, of course, the court would have to scrutinise the policy and any justification advanced for it to see whether there was sufficient justification for the discriminatory treatment.

47.

In R(SB) v Denbigh High School45 the House of Lords considered a claim that a school had breached Article 9 of the European Convention (freedom of religion and belief) in refusing to allow the 16 year old claimant to wear the stricter jilbab form of dress because it contravened its uniform policy. Lord Bingham re-stated the basic principles concerning proportionality review as follows:46
[I]t is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting ... [T]he new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department,47 in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence ex p Smith.48 The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time ... Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education and Employment.49 As Davies observed in his article cited above, "The retreat to procedure is of course a way of avoiding difficult questions". But it is in my view clear that the court must confront these questions, however difficult. The school's action cannot properly be condemned as disproportionate, with an acknowledgement that on reconsideration the same action could very well be maintained and properly so. If it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a challenger's task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.

48.

In a similar vein, Lord Hoffman said:

50

In domestic judicial review the court is usually concerned with whether the decision maker reached his decision in the right way rather than whether he got what the court might think is the right answer. But Art 9 is concerned with substance, not procedure. It confers no right to have a decision in a particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under Art 9(2).

45 46 47 48 49 50

[2007] 1 AC 100. R (SB) v Governors of Denbigh High School [2007] 1 AC 100, 116 [30]-[31]. [2001] 2 AC 532, [25]-[28]. [1996] QB 556. [2005] 2 AC 246, [51]. [2005] 2 AC 246, [68].

16

49.

More recently, the House of Lords in E v Chief Constable of the Royal Ulster Constabulary51 unanimously endorsed the approach in each of Daly, Huang and Denbigh High School, including endorsing Lord Binghams observation in Denbigh High School that what matters "is the practical outcome, not the quality of the decision-making process that led to it."52

50.

That said, there are some circumstances where a court may decline to find that a public authority has acted unlawfully where the public authority has given proper consideration to the relevant human rights and where the decision is within a range of demonstrably justifiable alternatives.53 The precise situations in which that should must be worked out on a case by case basis, but they will often involve questions that raise issues of a kind not susceptible to proof by evidence.54 As Hollingworth J pointed out in Sabet v Medical Practitioners Board of Victoria:55
As far s 7(2)(e) is concerned, it is common ground that, in considering whether there is any less restrictive means available, there is no obligation on a public authority to choose the least intrusive means possible. Rather, the court is required to consider whether the chosen measure falls within a range of reasonable alternatives.

51.

To the limited extent that the operation of s 38 of the Charter has previously been considered, the approach outlined in the United Kingdom cases has been adopted. Thus, in Director of Housing v Sudi, Bell J said:56
Although determining whether a public authority has behaved unlawfully by breaching human rights has some analytical similarities with judicial review, this is not what the tribunal would be doing in determining the issue in these proceedings. The tribunal would be determining whether the human rights standards in the Charter applied to the director, whether the standards were breached by his actions or decisions in this case and whether any breach was justified (unless this was conceded, as it effectively has been here). If the conclusion was that the director did breach the Charter, s 38(1) specifies the consequence that the actions or decisions were unlawful.

51 52 53 54

55

56

[2009] AC 536, [52]-[53]. R (SB) v Governors of Denbigh High School [2007] 1 AC 100, 116 [31]. See, e.g., R (SB) v Governors of Denbigh High School [2007] 1 AC 100. See Evans and Evans, Australian Bills of Rights: The Law of the Victorian Charter and the ACT Human Rights Act (2008) 179-186, especially [5.68]. [2008] VSC 346 at [188], citing RJR McDonald Inc v Attorney-General (Canada) [1995] 3 SCR 199, [160]. [2010] VCAT 328, [130].

17

52.

Likewise, in Rogers v Chief Commissioner, Senior Member R Davis said:57

The applicant correctly submits that proper consideration of his rights requires that public authorities give real and genuine consideration to human rights (see R (Daly) v Home Secretary [2001] 2 AC 532. While that statement is undoubtedly correct, in coming to the decision that I have in relation to engagement, I have done what I consider to be the correct approach and in fact considered whether any of the applicants human rights pursuant to the Charter have in fact been breached.

Application of the proportionality analysis 53. It is not possible to make any detailed submissions about the application of the proportionality analysis in this case prior to the close of evidence, and without having heard how the Defendants seek to justify the limitation of the Plaintiffs rights. 54. There are, however, uncontested facts which create grave reason to doubt whether those limitations are justified. They include that: (a) the capacity to procreate is a matter that goes to the very heart of human dignity, integrity and identity; (b) the Plaintiff was already engaged in a course of IVF conduct prior to her imprisonment, and intends to continue to meet the cost of that treatment, showing that she has a demonstrated pre-existing commitment to having another child; (c) the Plaintiffs age, which means that if permission is not granted she is very likely to lose the opportunity to have another child with her current partner, and to have a sibling for her daughter; (d) the Plaintiff has been classified at the lowest possible category of security (minimum security, C2);58 (e) there is a pre-existing procedure for the issue of unescorted permits,59 and the Plaintiff has been approved as being eligible for unescorted

57 58 59

[2009] VCAT 2526. Further Affidavit of Brendan Francis Money sworn 25 May 2010, paras 4 and 17. Further Affidavit of Brendan Francis Money sworn 25 May 2010, para 16, 18.

18

leave, although she has not taken that leave;60 (f) prisoners who attend medical appointments often know the date of their next appointment, meaning that the consideration that advanced knowledge of dates when permission will be given to leave a prison cannot be decisive.61 55. In DAS, Warren CJ pointed out that It is clear the more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.62 56. In this case the deleterious effects of the Secretarys refusal to issue a permit under s 57A of the Act are most severe and irreversible. Unless the Court is satisfied to a high standard that the considerations upon which the Defendants rely to limit the Plaintiffs rights are such that the denial to her of an opportunity to conceive a further child is demonstrably justified in a free and democratic society, the conduct of the Defendants should be found to be unlawful under s 38 of the Charter. 57. The Plaintiffs rights cannot reasonably be limited due to a fear of the demands of hypothetical future applicants on prison management. If the complications that are feared eventuate in the future, then at that point they may provide a demonstrable justification for refusing prisoners access to IVF. They do not do so now. (d) 58. The proper consideration question Further or alternatively, in making the decision to refuse to issue the corrections administration permit under s 57A(1)(a) of the Act, the Secretary acted unlawfully because she failed to give proper consideration to the Plaintiffs human rights.

59.

Section 6 of the HRA does not contain an equivalent to the second limb of s 38(1) of the Charter, and the Second Reading Speech and Explanatory Memorandum for the Charter do not shed any light upon the intended operation

60 61 62

Further Affidavit of Brendan Francis Money sworn 25 May 2010, para 21. Further Affidavit of Brendan Francis Money sworn 25 May 2010, paragraph 8 DAS v Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381, [150].

19

of that limb. 60. However, the language of the second limb of s 38(1) on its face: (a) makes the human rights identified in Part 2 of the Charter mandatory relevant considerations for the purpose of all administrative decisions made by public authorities;63
(b)

in requiring public authorities to give proper consideration to human rights, imposes a higher standard than the traditional relevant consideration ground of judicial review. 64

61.

The plain meaning of s 38(1) is supported by the Report of the Human Rights Consultation Committee. That report suggests that the Committee may have intended to set out expressly what was already implicit in the first limb of s 38(1). Thus, having noted that it was important that public authorities not simply give lip service to human rights, the Committee said:65
The obligation to observe Charter rights would establish the principle that human rights must be adequately considered by public authorities when making decisions and delivering services. The ability to apply for judicial review or a declaration of unlawfulness for failure to meet that obligation would mean that the traditionally narrow grounds of administrative law would be updated to give life to the enforcement of this new obligation. It would be better to set out clearly in the Charter that those two avenues are available than to allow it to develop in an ad hoc way over time.

62.

Of course, even confining attention to the traditional judicial review ground of failure to have regard to a relevant consideration, it is not the case that formulaic box-ticking would be sufficient to protect a decision from review. As the New South Wales Court of Appeal explained in Bruce v Cole, after discussing the case law in the Federal Court concerning review on the basis of a failure to give proper, genuine and realistic66 consideration to relevant factors:67

63

64

65

66

Rights Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 124. As to which see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-43, making it clear that under this ground of review there is little scope to consider the weight that a decisionmaker gives to each consideration. Rights Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 124-125. A formulation drawn from Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, 292 (Gummow J), but subsequently disapproved (at least in relation to the relevant considerations ground) in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426, [59]-[66].

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[A] similar proposition may be appropriate in the context of the relevant/irrelevant considerations ground at common law: see, for example, "any real sense", Turner v Minister for Immigration (1981) 55 FLR 180 at 184, per Toohey J; "genuinely and realistically", Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195, per Fox J and Franki J; "proper consideration", Kioa v West (1985) 159 CLR 550 at 604, per Wilson J; and in this Court, the formulation "no real opportunity ... to give consideration to", in Parramatta City Council v Hale (1982) 47 LGRA 319 at 331, per Street CJ; see also at 335-336.

63.

Subsequently, in Williams v Minister for the Environment and Heritage, Wilcox J said:68
On the other hand, and consistently with this insistence on substance over form, the law requires that, if a decision-maker is to avoid the reproach of having failed to take into account a relevant consideration, it must appear he or she has given "proper, genuine and realistic" (and not merely token) consideration to all material available and relevant to the decision. The word "relevant", in this context, was explained in Peko-Wallsend.

64.

Those passages illustrate that it was already inherent in the requirement that decision-makers have regard to a particular consideration that it be given genuine or real consideration. By imposing a requirement to give proper

consideration to human rights, the Charter builds upon that requirement, subjecting decisions by public authorities to a stricter standard of review.

65.

In most cases, the content of that stricter standard will be the same as that discussed above in relation to the proportionality analysis required by the first limb of s 38(1) of the Charter. However, there may be some cases in which a range of possible decisions will interfere with rights in a way that would be demonstrably justifiable having regard to s 7(2) of the Charter. In a case of that kind, it is possible that a decision will be made that in fact falls within the range of justifiable outcomes, even though the decision-maker did not give any, or any adequate, consideration to the human rights issue that were involved. In that situation, the public authority will have acted unlawfully, because rights will not have been properly considered as part of the decision-making process (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).

67 68

(1998) 45 NSWLR 163, 186. [2003] FCA 535, [29]-[30].

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66.

In this case, the First Defendant cannot demonstrate that she engaged in a reasoning process of the kind required by s 7(2) of the Charter. In particular, there is no evidence that she considered whether there was any less restrictive means reasonably available to achieve the purpose that the limitation on the Plaintiffs rights sought to achieve. While it may be usual prison practice that all corrections administration permits issued for medical reasons require the prisoner to be escorted,69 the application on the facts of that usual practice should have been, but apparently was not, required to be justified to a high standard of satisfaction.

(e) 67.

The inevitable infringement question By reason of s 38(2) of the Charter, a public authority does not act unlawfully under s 38(1) if it:
could not reasonably have acted differently or made a different decision as a result of a statutory provision or a provision made by or under an Act of the Commonwealth, or otherwise under law.

68.

The sole purpose of s 38(2) is to give effect to parliamentary sovereignty. The provision is necessary because the validity of legislation is not affected even if that legislation is incompatible with the Charter. For that reason, if legislation reasonably requires a public authority to take particular administrative action, that administrative action cannot be rendered lawful by s 38(1) of the Charter.70

69.

Section 38(2) of the Charter is apparently modeled on s 6(2) of the HRA. However, where s 38(2) provides that s 38(1) does not apply if, as a result of a statutory provision, a public authority could not reasonably have acted differently or made a different decision, s 6(2) of the HRA provides that:
Subsection (1) does not apply to an act if (a) (b) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or in the case of one or more provisions of primary legislation which cannot be read or given effect in a way which is compatible with the Convention

69 70

Further Affidavit of Brendan Francis Money sworn 25 May 2010, para 19. See Pound and Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (2008) [5080]; Beatson et al, Human Rights: Judicial Protection in the United Kingdom (2008) 539-540, quoting R (on the application of Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681, [51] (Lord Hoffman). See also [71], [78], [80] and [83] per Lord Hope.

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rights, the authority was acting so as to give effect to or enforce those provisions.

70.

It has been said of s 6(2) of the HRA that:71

Although the wording of s 6(2) is not entirely straightforward and it has produced some complicated case law, its effect and the intention of s 6(2) is clear enough: it is intended to provide a public authority with a defence where primary legislation requires it to act or permits it to act incompatibly with the Convention even after that legislation has been interpreted in a way which, so far as possible, requires the public authority to act compatibly with Convention rights.

71.

Section 38(2) of the Charter reflects the terms of s 6(2)(a) of the HRA, except for the addition in s 38(2) of the word reasonably. The operation of s 6(2)(a) is very narrow, the House of Lords having held that that paragraph is confined to cases where legislation imposes a duty on a public authority to act (or not act) in a manner that is incompatible with a Convention right.72

72.

The Charter does not contain any equivalent to s 6(2)(b) of the HRA. That is significant, because that section has been held to have a wider operation than s 6(2)(a). It applies at least in a case where any exercise of a statutory power would inevitably result in a breach of human rights (even if a refusal to exercise the power at all would not breach rights, because otherwise the public authority would be unable to exercise the power, with the result that it would be essentially repealed or extinguished).73 Section 6(2)(b) has generated a body of complicated law,74 at least some of which may be explained by the absence of any general limitation provision in the HRA of the kind found in s 7(2) of the Charter. It is submitted that cases that are analysed in the United Kingdom pursuant to s 6(2)(b) of the HRA are appropriately analysed in Victoria pursuant to s 7(2) of the Charter, and that this may account for the omission from s 38(2)

71 72

73

74

Beatson et al, Human Rights: Judicial Protection in the United Kingdom (2008) 541. Beatson et al, Human Rights: Judicial Protection in the United Kingdom (2008) 543-544. See R (on the application of Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681, [4], [48], [71], [95], [124]; R (on the application of Wilkinson) v Inland Revenue Commissioners [2005] 1 WLR 1718, [22]. R (on the application of Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681, [117]. See also at [172]. See, e.g., Kay v Lambeth London Borough Council [2006] 2 AC 465, [34]-[36]; Doherty v Birmingham City Council [2009] 1 AC 367, esp [52]-[55], [109], [123], [133]-[134]. These cases are apparently to be reconsidered by a panel of 9 Supreme Court Justices in Pinnock v Manchester City Corporation, which is listed for hearing from 5-8 July 2010: see Salford City Council v Mayor and Burgesses of the London Borough of Hounslow [2010] EWCA Civ 336, which provides a helpful summary of the present legal position.

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of the Charter of any equivalent to s 6(2)(b) of the HRA. 73. Accordingly, the limitation in s 38(2) should be construed narrowly. That is

consistent with the requirement in s 32 of the Charter that statutory provisions, including the Charter itself, be construed so far as is possible consistently with human rights. A narrow construction of s 38(2) enhances human rights by

ensuring that the obligation of public authorities to act compatibly with human rights under s 38(1) is as wide as possible. 74. The Court should find that s 38(2) applies only where, as a result of a statutory provision, a public authority could not reasonably have acted differently. Those words import a causal requirement such that, unless the statutory provision leaves a public authority with no reasonable option but to act incompatibly with rights, s 38(2) has no operation. It follows that s 38(2) of the Charter will rarely, if ever, have any operation in relation to a statutory discretion.75 Such a power will ordinarily permit a public authority to make a decision or to act in a way that is not incompatible with rights. While it may be the case that s 38(1) will narrow the range of options that are available to the decision-maker in the exercise of a discretion, if any of the options that are reasonably available are not incompatible with rights, then s 38(2) does not apply. 75. On the facts of this case, the Secretary clearly could reasonably have exercised her power under s 57A(1)(a) of the Act to grant the application. This is evidenced by the fact that that is the decision that the Second Defendant considered should have been made. Accordingly, s 38(2) does not have relevant operation. III. 76. COSTS As an intervener pursuant to s 40 of the Charter, the Commission does not seek costs, and submits that no order for costs should be made against it.

Dated:

28 May 2010

STEPHEN DONAGHUE Douglas Menzies Chambers

75

Pound and Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (2008) [5080].

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