Protecting us all: 2012 report on the operation of the Charter of Human Rights and Responsibilities Page 32

30 Protecting us all: 2012 report on the operation of the Charter of Human Rights and Responsibilities

Courts and tribunals play a crucial role in the
Charter's human rights protection framework.
They are a mechanism where Victorians can hold
government and public authorities to account for
conduct that infringes their rights.

There is a growing body of Charter case law from
Victoria's courts and tribunals that better informs
the way the government understands human
rights and how to comply with its obligations
under the Charter's human rights framework.

Concerns that the Charter would result in an
increase in litigation remain unrealised. The Law
Institute of Victoria has reported that since the
Charter was first raised in legal proceedings
in 2006 until the end of 2012, it has been
considered on average in 47 cases each year;
less than one per cent of the total number of
cases.

Contrary to the perception that the

Charter is relied on mainly in criminal cases, 79
per cent of cases where it has been considered
involved civil and administrative matters.

Trends in 2012

There were 50 decisions in 2012 in which the
Charter was raised by a party or referred to by
the court or tribunal.

The Charter was raised

as a central issue in 11 of those cases.

Three

further cases, which were heard in 2012 but
decided in early-2013, raised the Charter as a
central issue.

The Charter can be raised in the

courts in two ways.

· First, section 38 of the Charter requires a

public authority not to act incompatibly with a
human right and to consider relevant human
rights when it makes a decision. Courts and
tribunals can review the lawfulness of the

actions and decisions of a public authority
where there is an allegation the authority has
acted unlawfully under section 38. However,
the Charter does not create a separate cause
of action. Section 39 of the Charter sets
out that a person cannot rely on the Charter
alone and must have another basis on which
to seek a remedy. The Charter aspect adds
an additional ground to a person's claim or
application for review.

· Second, section 32 requires courts and

tribunals to interpret Victorian laws, so far as
it is possible to do so consistently with the
law's purpose, in a way that is compatible with
human rights. This means that where Victorian
laws are open to more than one interpretation,
courts and tribunals are obliged to adopt the
interpretation which least infringes human
rights. If a court is unable to interpret a law
compatibly with human rights, the Supreme
Court can make a declaration of inconsistent
interpretation (section 36).

22 Law Institute of Victoria, LIV Charter Case Audit

(December 2012). The Audit details decisions from
September 2006 to 31 December 2012, p4.

23 See Law Institute of Victoria, LIV Charter Case Audit

(December 2012). The Audit details decisions from
September 2006 to 31 December 2012, p 4: 79% of
decisions in civil or administrative matters and 21%
in criminal matters.

24 This includes the 49 decisions of 2012 referred to in

the LIV Charter Case Audit (December 2012) plus
one unreported decision not referred to in the Audit,
VPOL v Anderson & Ors (Magistrates' Court,
Unreported, 23 July 2012).

25 Hillas v Yarra Community Housing Ltd (Residential

Tenancies) [2012] VCAT 224; Slaveski v Smith
[2012] VSCA 25; Noone v Operation Smile (Aust)

Inc & Ors [2012] VSCA 19; VPOL v Anderson & Ors
(Magistrates' Court, Unreported, 23 July 2012);
Aitken & Ors v The State of Victoria Department
of Education and Early Childhood Development
(Anti-Discrimination) [2012] VCAT 1547; DPP v Leys
& Leys [2012] VSCA 304; Slaveski v R (on the
application of the prothonotary of the Supreme
Court of Victoria) [2012] VSCA 48; WBM v Chief
Commissioner of Police [2012] VSCA 159; Magee v
Delaney [2012] VSC 407; Caripis v Victoria Police
(Health and Privacy) [2012] VCAT 1472; and A & B v
Children's Court of Victoria [2012] VSC 589.

26 Victorian Toll & Anor v Taha and Anor; State of

Victoria v Brookes & Anor [2013] VSCA 37;
Bare v Small [2013] VSC 129; and Re Beth [2013]
VSC 189.