Protecting us all: 2012 report on the operation of the Charter of Human Rights and Responsibilities Page 42

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

Ongoing interventions in 2012

The Commission was involved in four ongoing
interventions. At the time of writing, one decision
is yet to be handed down.

Aitken & Ors v The State of Victoria (VCAT)

Discussed at page 34.

Bare v Small (Supreme Court)

Discussed at page 36.

Taha v Broadmeadows Magistrates' Court
(Court of Appeal)

Discussed at page 32.

Christian Youth Camps v Cobaw Community
Health Services Ltd & Anor (Court of Appeal)

This was an appeal from a decision of VCAT
which found that Christian Youth Camps had
unlawfully discriminated against a group of
same-sex attracted youth by denying them use
of a Christian Youth Camps-owned and operated
adventure resort.

The Commission intervened in

the VCAT proceeding under the Charter and was
therefore a party to the appeal.

In the Court of Appeal, the Commission made
submissions on the proper interpretation of the
religious exceptions in the Equal Opportunity Act
2010 compatibly with the human rights to equality
and freedom of religion in the Charter; namely
that the Charter requires a narrow interpretation
of the religious exceptions.

The appeal was heard by the Court of Appeal in
February 2013. At the time of writing, the decision
was reserved.

New interventions in 2012

The Commission intervened in five new matters
in 2012, four of which have been heard and
decided and one in which the decision is
reserved.

Slaveski v The Queen (Court of Appeal)

The case involved an appeal against a decision
of the Supreme Court that found Mr Slaveski
guilty of contempt of court for threatening and
insulting the trial judge. The case considered
whether the right to a fair trial (section 24)

required the court to grant an adjournment in
order to allow Mr Slaveski further time to seek
legal representation. It also considered whether
the court was a public authority when making
adjournment decisions.

The Commission submitted that when a trial
judge grants or refuses adjournment of a trial, the
judge is a public authority bound by section 38 of
the Charter to act compatibly with human rights.

The Court decided that courts are not public
authorities under the Charter when making
adjournment decisions because this is a judicial,
not an administrative, function. Further, the
Court decided that the right to a fair trial did not
require the granting of an adjournment in the
circumstances.

DPP v Leys & Leys (Court of Appeal)

In this appeal of a sentencing decision, a
question was raised as to the interpretation of
a transitional provision in the Sentencing Act
1991 compatibly with the right to liberty (section
21).

On a literal interpretation of the provision,

while the previous regime of community-based
sentencing orders had been repealed, the new
scheme had not yet commenced which, in the
circumstances, would leave the Court with the
sole sentencing option of imprisonment.

The Commission submitted that a literal
interpretation was incompatible with the right
to liberty and that section 32 of the Charter
required an interpretation of the provision that
the new scheme entered into operation on the
date that the old scheme was repealed, making a
community order an available sentencing option.

The Court of Appeal adopted the interpretation
argued by the Commission. However, it did not
rely on the Charter because it was able to reach
the same conclusion using ordinary principles of
statutory interpretation.

69 Cobaw Community Health Services v Christian

Youth Camps Ltd & Anor (Anti-Discrimination)
[2010] VCAT 1613.

70 Section 4 of the Charter states that courts and

tribunals are not public authorities, except where
they are acting in an administrative capacity
(see section 4(1)(j)).