submissions that an interpretation of the phrase
"mature enough to give instructions" that was
consistent with the rights of children to protection
that is in their best interests, equality and a fair
hearing required the Children's Court to look
beyond the child's chronological age and take
other relevant factors into account.
child is mature enough to give instructions
must be established by reference to a child's
development, capacity and insight and that more
than just a child's chronological age must be
considered when deciding what is in a child's
best interests. The Supreme Court considered
that this interpretation of the Act was compatible
with the Charter right of children to "such
protection as is in their best interests". As a
result, the matter was returned to the Children's
Court for reconsideration.
thought, conscience, religion and belief (section
14) were raised in the discrimination case of
Aitken & Ors v State of Victoria heard by VCAT.
primary schools complained that the method
of providing Special Religious Instruction (SRI)
directly discriminated against their children in
breach of the Equal Opportunity Act 1995 and
the Equal Opportunity Act 2010. The parents
argued that an interpretation of the Education
and Training Reform Act 2006 that authorised SRI
to take place in school hours was incompatible
with their children's rights to equality and freedom
of belief because it discriminated against them
by identifying them as different, separating
them from their classmates and not allowing
them alternative instruction. VCAT did not agree,
finding that the meaning of the Education Act
was clear and the Charter did not require it
to be interpreted differently. VCAT dismissed
the proceedings, deciding that the method of
providing SRI did not limit human rights and that
there had been no direct discrimination.
the Charter's rights in criminal proceedings
(section 25(2)(d) and (f)) and right to a fair
hearing (section 24(1)) guarantee a right to legal
representation in Slaveski v Smith.
lead up to his trial. After he disagreed with and
dismissed the counsel retained to represent him
on two occasions, he applied again for legal aid
but was refused on the basis that his conduct
rendered him ineligible. Mr Slaveski questioned
whether he was entitled to legal representation
under the Charter. The Court concluded that the
right to legal representation in section 25(2)(f)
of the Charter does not give an entitlement to
legal assistance independent to the exercise of
discretion by Victoria Legal Aid. However, the
Court did confirm that the right to a fair hearing
in section 24 does include a limited right to be
legally represented, where the absence of legal
aid means that a court would be unable to reach
a just decision.
the nature and scope of a range of rights, even
in cases where Charter-related issues were not
determinative of the outcome.
Operation Smile (inc),
(section 15) affected what could be considered
"misleading and deceptive conduct" under
the Fair Trading Act 1999.
interpretation of the offence, the Court's decision
considered comparative freedom of expression
cases in the United Kingdom and explained
where limitations on the right to freedom of
expression may be permissible.
Commissioner of Police also considered the
scope of the right to privacy (section 13(a)) in
the context of whether the reporting scheme in
the Sex Offender Registration Act 2004 arbitrarily
interfered with that right.
the Court of Appeal: Aitken & Ors v State of Victoria
[2013] VSCA 28 (22 February 2013).
right to freedom of expression in section 15 of the
Charter. The joint judgment of Warren CJ and
Cavanough AJA found it unnecessary to answer the
Charter questions.