38 obligation informs the conduct of public
authorities.
pseudonym), the Secretary to the Department
of Human Services identified that the right of
a child to protection in his or her best interests
(section 17) and the right to liberty (section 21)
were relevant to the Secretary's application
for orders enabling a child to be placed in a
locked residence after all other options proved
inadequate for her care and protection. While
the Charter did not restrict the Court's powers
to make the orders, and those orders would be
binding regardless of their compatibility with
human rights,
submitted that the Court should be satisfied that
the Secretary, who is a public authority under the
Charter, would be acting compatibly with human
rights if the orders were made.
made submissions that the placement would
result in significant limitations on Beth's rights
to liberty, privacy and, freedom of movement
and, that, if it was to be compatible with her
rights, that it must be the least restrictive option
necessary for the important purpose of ensuring
her care and protection. The Commission
made submissions on essential safeguards
that must apply to the placement to ensure
the restrictions on Beth's right to liberty were
proportionate. These included regular review of
the placement, effective independent oversight
and the requirement that Beth have independent
legal representation when the Court undertook a
review of the orders authorising the placement.
interests must be illuminated by a consideration
of the child's rights and ensuring as the
Charter requires that any limit on human rights
is reasonable, necessary and proportionate in
the circumstances of the case. Importantly, the
Court recognised that the voice of the child is a
significant factor in ascertaining what is in the
best interests of the child.
placement subject to specific conditions
relating to oversight, reporting, regular review
and the safeguard of independent legal
representation after taking Beth's human rights
into account and being satisfied on the evidence
that it was in Beth's best interests and necessary
for her ongoing care and protection.
man of Ethiopian descent complained
to the Office of Police Integrity (OPI) that
he was treated in a cruel, inhuman and
degrading way by Victoria Police. The OPI
referred his complaint to Victoria Police for
internal investigation rather than conducting
an independent investigation. Mr Bare
sought a review of the OPI's decision.
intervened in the case argued that the
right to protection from cruel, inhuman and
degrading treatment (section 10(b) of the
Charter) includes an implied procedural
right to an effective and independent
investigation of a complaint of cruel,
inhuman and degrading treatment. On that
basis, it was argued that OPI had acted
unlawfully under section 38 of the Charter
because its decision to refer the complaint
was incompatible with, and had failed to
properly consider, section 10(b).
10(b) does not include an implied
procedural right to an effective and
independent investigation.
decision been incompatible with human
rights, a privative clause in the Police
Integrity Act 2008 excluded the decision
from judicial review unless it was made in
jurisdictional error. A public authority acts
in jurisdictional error where it lacks the
authority to make a decision.
under section 38 was not a jurisdictional
error. The decision is subject to an appeal.
Anti-Corruption Commission.
2013.