seek conditional access to the footage through
a discovery process in civil proceedings. As a
public authority, VCAT accepted that it had to
act compatibly with the individual's right to seek,
receive and impart information (section 15(2) of
the Charter) and that right includes a positive
right to access government-held documents.
However, it held that the application of the
exemptions in the Freedom of Information Act to
restrict the right are reasonable and justifiable
and that the government and VCAT will be acting
compatibly with that right where requests for
access to documents are properly processed
under the Act.
legal proceedings
and tribunals can order relief or a remedy where
a public authority breaches its human rights
obligations.
raised in cases in the residential tenancies list in
VCAT. For example, in some cases, it was argued
by tenants that VCAT should dismiss applications
by the Director of Housing for a possession order
where it could be shown that the Director had
not given proper consideration to relevant human
rights or was acting incompatibly with the tenant's
human rights.
determined in Director of Housing v Sudi that
VCAT did not have the power to decide whether
the Director had complied with the Charter
when applying for a possession order under the
Residential Tenancies Act 1997.
a public authority has acted unlawfully under
section 38 in bringing VCAT proceedings that
threaten their rights (for example, in possession
order proceedings) but must instead seek judicial
review of the authority's decision or action in the
Supreme Court.
only been raised in two residential tenancies
decisions, each in relation to how to interpret the
Residential Tenancies Act 1997 in accordance
with section 32 of the Charter. There were
no Supreme Court judicial review decisions
regarding residential tenancies in 2012.
that the Sudi decision may discourage human
rights arguments in non-tenancy matters at VCAT
because there is uncertainty as to where VCAT
has jurisdiction to consider a public authority's
compliance with the Charter. Victoria Legal Aid
has observed that while the Sudi decision has
made VCAT "a less desirable jurisdiction in which
to pursue Charter questions", the Charter is still
raised as an argument in some VCAT cases. Also,
Privacy Victoria reports that the Charter informs
its intervention function at VCAT in information
privacy matters.
to examine whether a public authority has acted
compatibly with human rights in cases in VCAT
where the public authority's decision or action is
being directly reviewed by the Tribunal. Although
VCAT concluded that the retention of protest
footage by Victoria Police containing images of
Ms Caripis was compatible with her human rights,
because it did not infringe her right to privacy,
VCAT did confirm that it had jurisdiction to
consider whether the police had acted unlawfully
under the Charter. This was because Victoria
Police's decision to retain images of Ms Caripis
was under direct challenge in the proceeding.
VCAT said that this is different to the situation in
Sudi, where the Director of Housing was applying
to VCAT for a decision to be made. The Director's
decision to bring the proceeding before VCAT
(the application for a possession order) was not
a matter VCAT could review because its decision
was "collateral" to the proceeding itself.
Advocate has also observed that Charter rights
are relevant in Children's Court matters. The
right to a fair hearing and the right to recognition
before the law are relevant considerations in
matters where litigation guardians are appointed
for people, including parents with a disability.