Protecting us all: 2012 report on the operation of the Charter of Human Rights and Responsibilities Page 34

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

special circumstance,

the Magistrate was not

aware of Mr Taha's disability. In Ms Brookes'
case, the Magistrates' Court refused to consider
her mental illness before sentencing her to 134
days imprisonment for defaulting on the payment
of 69 outstanding fines. There was no right under
the Infringements Act to appeal the decisions or
seek a rehearing of the orders. Mr Taha and Ms
Brookes sought judicial review of the Magistrates'
decisions, alleging they were incompatible with
their human rights.

The Court of Appeal considered that an
interpretation of the Infringements Act that
least restricted an individual's rights required a
Magistrate to inquire about and consider that
individual's circumstances in order to address
whether a less severe order was appropriate
in the circumstances.

The right to liberty

(section 21) and the right to a fair hearing
(section 24) required the court to consider
whether imprisonment was reasonable in the
circumstances after a hearing which had regard
to an offender's circumstances. The right to equal
protection of the law (section 8(3)) reinforced the
need for special treatment of individuals with an
intellectual disability who may be inappropriately
caught up in the infringement system. Because
the Magistrates had not inquired about the
circumstances of Mr Taha and Ms Brookes, the
decision to order imprisonment was not validly
made.

What rights are raised?

A range of human rights recognised by the
Charter were raised before Victorian courts and
tribunals in 2012. These include:

· the right to recognition and equality before the

law (section 8)

· the right to protection from cruel, inhuman and

degrading treatment (section 10(b))

· the right to privacy (section 13(a))
· the right to freedom of thought, conscience,

religion and belief (section 14)

· the right to freedom of expression (section 15)
· the right to peaceful assembly and freedom of

association (section 16)

· the right of children to protection in their best

interests (section 17(2))

· the right to liberty (section 21)
· the right to a fair hearing (section 24)
· rights in criminal proceedings (section 25).

The rights to equality (section 8), liberty (section
21) and a fair hearing (section 24) were relied on
in Taha v Broadmeadows Court & Ors; Brookes
v Magistrates' Court of Victoria & Anor,

which

resulted in a positive outcome for two individuals
who faced imprisonment for defaulting on
repayments of outstanding infringement offence
fines.

Mr Taha has an intellectual disability and Ms
Brookes has a mental illness. Mr Taha had been
sentenced in the Magistrates' Court to 84 days
imprisonment in lieu of paying 30 fines he had
accumulated. Although the Magistrate was
empowered to discharge outstanding fines under
the Infringements Act 2006 where a person has
an intellectual disability, mental illness or other

33 [2013] VSCA 37.

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

Victoria v Brookes & Anor [2013] VSCA 37.

The Court of Appeal heard the case in
December 2012.

35 Infringements Act 2006, section 160(2).

36 The Court of Appeal heard the case in December

2012 and decided the case in March 2013. The
Court of Appeal agreed with the Supreme Court
decision below in Taha v Broadmeadows Court &
Ors; Brookes v Magistrates' Court of Victoria & Anor
[2011] VSC 64.

37 The Commission intervened in this case under

section 40 of the Charter. Because the Commission
intervened in the Supreme Court proceeding it was
a party to the appeal. The Commission made
submissions on the relevance of the human rights to
equality (section 8), the right to a fair trial hearing
(section 24) and the right to liberty (section 21) and
how those rights apply to the case and how the
Magistrates' Court should take those rights into
account through the interpretive obligation in section
32 of the Charter and the direct application of
certain rights through section 6(2)(b) of the Charter.
The Commission submitted that, in accordance with
these obligations, the Magistrate, acting consistently
with these rights, was required to consider the
individual circumstances of an individual and
determine whether alternatives to imprisonment
were available and appropriate.