Future of human rights jurisprudence in Victoria
⚖️ Future of Human Rights Jurisprudence in Victoria
🧾 I. Introduction: Human Rights in Victoria
Victoria is the first Australian state to have enacted a human rights charter:
➡️ The Charter of Human Rights and Responsibilities Act 2006 (Vic).
This legislation sets out 20+ civil and political rights drawn from the International Covenant on Civil and Political Rights (ICCPR) and binds:
Public authorities
State government departments
Tribunals and courts, to a degree
🌟 II. Current Human Rights Framework — Key Features
Section 7 – Human rights may be limited but only where reasonable, demonstrably justified
Section 38 – Public authorities must act compatibly with human rights
Section 32 – Courts must interpret laws in a way that is compatible with human rights
Section 39 – Allows for relief/remedies where human rights are breached (indirectly)
🔮 III. The Future of Human Rights Jurisprudence in Victoria – Emerging Trends
Key Future Directions:
Strengthened enforcement of Charter rights
Broader interpretation of “public authority”
Growing judicial engagement with the Charter
Potential reforms to allow direct causes of action for rights breaches
Charter rights increasingly used in areas like housing, policing, detention, and social welfare
📚 IV. Landmark Cases Shaping the Future – Explained in Detail
✅ 1. Momcilovic v The Queen (2011) 245 CLR 1
📌 Facts:
Momcilovic was convicted under drug laws.
She argued the burden of proof provision was incompatible with the presumption of innocence (a Charter right).
🧑⚖️ High Court Outcome:
The High Court found that Section 32 requires courts to interpret legislation consistently with human rights where possible, but it does not override clear legislative intent.
The Charter does not give courts power to invalidate legislation.
🔑 Principle:
The Charter supports interpretive dialogue, not judicial supremacy.
Future significance: Courts will likely continue using the Charter to guide statutory interpretation, especially in ambiguous cases.
✅ 2. Certain Children v Minister for Families and Children (No 2) (2017) VSC 251
📌 Facts:
The Victorian Government placed children in Barwon adult prison, citing security concerns.
The children sought review under the Charter, claiming breaches of rights (e.g. protection of minors, humane treatment in detention).
🧑⚖️ Supreme Court of Victoria Held:
Holding children in adult prisons breached multiple Charter rights, including:
Section 17(2) – protection of children in their best interests
Section 22(1) – humane treatment in detention
🔑 Principle:
Strong affirmation of children's rights under the Charter.
Future impact: The case sets a precedent for using the Charter to challenge administrative and executive decisions, especially in corrections and child welfare.
✅ 3. PBU & NJE v Mental Health Tribunal (2018) VSC 564
📌 Facts:
Two involuntary patients challenged the Mental Health Tribunal’s failure to properly consider their right to liberty and security before making detention decisions.
🧑⚖️ Supreme Court of Victoria Held:
The Mental Health Tribunal had failed to properly consider Charter rights.
The Court emphasised the need for real and direct consideration of rights like liberty.
🔑 Principle:
Tribunals must actively apply human rights standards — not treat them as secondary.
Future trajectory: Growing requirement that decision-makers demonstrate rights-conscious reasoning.
✅ 4. Burgess v Director of Housing (2014) VSC 648
📌 Facts:
A public housing tenant challenged an eviction decision for lack of procedural fairness and failure to consider Charter rights.
🧑⚖️ Supreme Court Held:
The eviction process was procedurally unfair, and the decision-maker failed to consider relevant Charter rights, such as:
Right to privacy and home (s13)
🔑 Principle:
Administrative decisions affecting housing and livelihood must explicitly engage with human rights.
Future implication: Charter will increasingly shape housing, social security, and welfare law.
✅ 5. Castles v Secretary, Department of Justice (2010) VSC 310
📌 Facts:
A prisoner (Ms. Castles) was denied access to IVF treatment.
She argued this breached her Charter rights, including the right to humane treatment and protection of family life.
🧑⚖️ Supreme Court Held:
The Department had to reconsider the decision in light of Charter rights.
The denial was not reasonably justified given her circumstances.
🔑 Principle:
The Charter applies to government services, including in prisons.
Future potential: Expansion of reproductive, family, and health rights within administrative settings.
📘 V. Summary Table of Key Cases and Future Impact
| Case | Rights Engaged | Future Impact on Jurisprudence |
|---|---|---|
| Momcilovic (2011) | Presumption of innocence | Charter as interpretive tool, not overriding statute |
| Certain Children (2017) | Children's rights, detention | Executive accountability; strong Charter enforcement |
| PBU & NJE (2018) | Liberty, mental health | Tribunals must actively apply and reason under Charter |
| Burgess (2014) | Privacy, home, housing | Charter relevance in public housing and administrative law |
| Castles (2010) | Family, humane treatment (prison) | Charter applies in prison rights and health services |
🔍 VI. Anticipated Reforms & Judicial Trends
🛠️ Likely Future Developments:
Strengthening of Section 39 remedies — potential reforms may allow direct causes of action for Charter breaches.
Broader application in administrative decisions — increased judicial insistence on rights-based reasoning.
Expansion into socio-economic rights — while the Charter doesn’t include them, courts may read existing rights expansively.
Increased training for public servants and tribunal members — ensuring rights literacy.
Greater use in housing, policing, youth justice, and mental health law.
🧠 VII. Conclusion
The future of human rights jurisprudence in Victoria lies in deeper judicial engagement with the Charter, especially in administrative and social justice contexts. As courts become more confident applying the Charter, and as public authorities are held to account, we can expect:
More robust protections
Stronger procedural fairness standards
Expansion of Charter relevance in daily governance
Victoria is likely to remain a national leader in rights-based jurisprudence in Australia.
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