The impact of human rights protection on government powers and administrative law in Victoria
✅ The Impact of Human Rights Protection on Government Powers and Administrative Law in Victoria
I. Background: Human Rights in Victoria
Victoria is one of the few Australian jurisdictions with a statutory human rights charter:
📜 Charter of Human Rights and Responsibilities Act 2006 (Victoria)
Also called the Victorian Charter.
Came into force in 2006.
Does not create a constitutional Bill of Rights, but rather a statutory framework.
Applies to:
Public authorities, including government departments and agencies.
Administrative decisions and delegated legislation.
Courts and tribunals, when interpreting laws.
II. Key Provisions of the Victorian Charter
| Section | Content |
|---|---|
| s.7 | Rights may be limited only to the extent that is reasonable and demonstrably justified |
| s.38 | Public authorities must act compatibly with human rights |
| s.32 | Statutes must be interpreted, as far as possible, consistently with human rights |
| s.39 | Legal remedies available when rights are breached by public authorities |
✅ Impact on Government Powers and Administrative Law
1. Limitation of Executive Discretion
Government decisions must be compatible with protected rights.
Discretion must be exercised reasonably and proportionally.
2. Procedural Fairness Enhanced
Rights like right to a fair hearing (s.24) and freedom of expression (s.15) influence how decisions are made.
Strengthens the requirement for natural justice.
3. Accountability of Public Authorities
Under s.38, public servants, police, councils, and others must respect human rights.
Failure to do so can lead to judicial review or civil claims.
4. Statutory Interpretation
All laws must be interpreted, as far as possible, in a way that is compatible with human rights (s.32).
Courts have an obligation to read legislation harmoniously with rights.
✅ Key Victorian Case Laws (Explained in Detail)
🇦🇺 1. Momcilovic v The Queen (2011) HCA 34
Facts:
Ms. Momcilovic was charged with drug trafficking. Under the Drugs Act, possession was deemed to be for trafficking unless the accused could prove otherwise.
She argued this reverse onus breached the right to be presumed innocent under the Victorian Charter (s.25(1)).
Held:
The High Court upheld the conviction but clarified the role of the Charter.
Courts must interpret statutes consistently with rights as far as possible (s.32).
However, s.32 does not override clear legislative intent.
The Charter does not give courts power to strike down legislation.
Impact:
Limited the Charter's impact but confirmed its interpretive role.
Emphasized the need for balancing human rights and legislative intent.
🇦🇺 2. Director of Housing v Sudi (2011) VSCA 266
Facts:
Mr. Sudi was evicted from public housing. He challenged the decision, claiming it violated his right to a home and right to a fair hearing under the Charter.
Held:
The Court of Appeal held that VCAT had no jurisdiction to consider human rights claims unless it was part of its statutory function.
Charter claims must be made in courts with jurisdiction over public law matters (e.g., Supreme Court).
Impact:
Clarified that the Charter does not create new rights of action unless linked to existing legal rights.
Reinforced judicial review as the proper avenue for Charter-based challenges.
🇦🇺 3. Castles v Secretary to the Department of Justice (2010) VSC 310
Facts:
Deborah Castles, a prisoner, sought access to IVF treatment while in custody. The prison denied it, citing security and resource concerns. She argued this breached her right to privacy and family life (s.13).
Held:
The Supreme Court of Victoria held that the decision failed to properly consider Charter rights, particularly the right to start a family.
Authorities must actively consider human rights when making decisions.
Impact:
Established that Charter rights are enforceable in administrative decision-making.
Public authorities must balance operational concerns with individual rights.
🇦🇺 4. Kracke v Mental Health Review Board (2009) VCAT 646
Facts:
Mr. Kracke was subject to ongoing mental health treatment without timely review. He claimed a breach of his right to a fair hearing (s.24).
Held:
VCAT held that failure to conduct timely reviews breached his human rights under the Charter.
The Board's conduct was found to be incompatible with human rights.
Impact:
First major case to apply the Charter to administrative delay.
Highlighted the duty of statutory bodies to act compatibly with rights.
🇦🇺 5. Certain Children v Minister for Families and Children (No 2) (2017) VSC 251
Facts:
Children were detained in Barwon adult prison, raising concerns under s.17(2) – protection of children in their best interests.
Held:
The Court found that placing children in adult prison conditions was incompatible with their human rights.
Ordered injunctive relief, removing them from the facility.
Impact:
Demonstrated the power of the Charter to restrain government action.
Emphasized children’s rights in administrative decisions involving detention.
✅ Summary Table
| Case | Key Right Involved | Outcome | Impact |
|---|---|---|---|
| Momcilovic | Presumption of innocence | Charter does not override statute | Clarified interpretive limits (s.32) |
| Sudi | Right to fair hearing | No new cause of action under Charter | Charter claims via judicial review only |
| Castles | Privacy, family life | State failed to consider rights | Authorities must apply Charter in decisions |
| Kracke | Fair hearing (timeliness) | Violation found | VCAT applies Charter in procedural decisions |
| Certain Children | Rights of minors | Detention ruled incompatible | Charter can restrain harmful administrative action |
✅ Conclusion
The Victorian Charter has had a significant impact on government powers and administrative law, by:
Imposing legal obligations on public authorities to respect and consider human rights.
Creating a duty to interpret laws in a rights-compatible way.
Providing grounds for judicial review if administrative decisions violate protected rights.
Though the Charter does not allow courts to strike down legislation, it plays a powerful role in shaping administrative behaviour, ensuring transparency, fairness, and accountability.
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