Court and tribunal decisions: Public authorities and human rights

Covert recordings by Consumer Affairs Victoria not a breach of privacy

In Director of Consumer Affairs Victoria v The Good Guys Discount Warehouses, it was argued that Consumer Affairs Victoria (CAV) as a public authority had acted incompatibly with the right to privacy under section 13(a). CAV inspectors had posed as customers on store visits to The Good Guys (which sold electrical and home appliances). CAV inspectors had secretly recorded conversations with employees of The Good Guys to investigate allegations of misleading or deceptive conduct.

The Federal Court observed that the issue of whether someone has a reasonable expectation of privacy turned on whether the person being recorded speaks in circumstances in which it is reasonable to expect their words to be heard only by the person they address. The right to privacy may apply to covert electronic recording of conversations in a work or professional environment. In this case however, the Court found that the inspectors did not breach the right to privacy. The conversations were not private as they took place in a public place – the television area in retail stores – where the participants could easily be overheard.

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Implementation of smoke-free policy properly considered human rights

In De Bruyn v Victorian Institute of Forensic Mental Health, a long-term smoker and involuntary patient residing at a hospital run by the Victorian Institute of Forensic Mental Health challenged the lawfulness of a smoke-free policy at the Hospital.

The patient argued, among other things, that the Institute as a public authority failed to give proper consideration to relevant human rights under section 38 of the Charter when approving and adopting the smoke-free policy at the Hospital. He raised the right to humane treatment when deprived of liberty under section 22, the right not to be subjected to medical treatment without full, free and informed consent under section 10(c), and the right to property under section 20.

The proceeding was dismissed. The Supreme Court found that the smoke-free policy did not or had not yet engaged those rights in the particular circumstances. The smoke-free policy was intended to benefit all patients, visitors and staff by preventing known harmful effects of smoking. Its broad scope and access to counselling and nicotine replacement therapy meant it would not affront the plaintiff’s dignity. Introduced to improve public health, the smoke-free policy did not amount to a ‘medical procedure’ as it lacked individual focus consistent with medical treatment. The right to property had not yet been engaged, as a decision had not been made as to whether confiscated cigarettes would be returned to the patient whenever he left the hospital for day leave.

In any event, the Supreme Court found that the Institute had demonstrated that it gave proper consideration to human rights, having spent years of careful consideration of the consequences, conducted a range of consultations with affected groups, and developed strategies to address negative impacts.

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Court of Appeal upholds mosque planning decision

The Court of Appeal in Hoskin and Anor v Greater Bendigo City Council and Ors upheld a Victorian Civil and Administrative Tribunal decision regarding the granting of a permit for a mosque and associated facilities in Bendigo.

The Tribunal had reviewed a decision by the Bendigo City Council to grant the permit and, in doing so, considered relevant human rights. These included the rights of those individuals who would use the mosque, particularly the right to freedom of religion and belief in section 14(1)(b) and cultural rights in section 19(1) of the Charter.

Objectors opposing the permit were unsuccessful in seeking leave to appeal to the Court of Appeal. The Court of Appeal found that the Charter did impose an obligation upon Council and the Tribunal to have regard to the human rights of the proposed users of the mosque when deciding whether to grant the permit. The Court also found that the above human rights informed the interpretation of the Planning and Environment Act 1987. The objectives under that Act embraced the development and provision of appropriate facilities for worship by those holding Islamic religious beliefs as part of a community, in public. The Tribunal had focused on the potential consequences of the proposed use, and this was the correct approach. The objectors could not object to a form of religious worship in itself.

The objectors have sought special leave to appeal to the High Court of Australia.

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Read our summary of the VCAT decision

Human rights and special procedures under the Guardianship Act

The Victorian Civil and Administrative Tribunal applied the Charter in proceedings involving ZEH – a 25-year-old woman with an intellectual disability, whose parents had applied for consent for her to undergo permanent contraception (sterilisation). Due to her disability, ZEH lacked capacity to give consent to this 'special procedure'. Under the Guardianship and Administration Act 1986, the Tribunal could consent if the special procedure would be in ZEH's best interests.

ZEH's parents wished to avoid the possibility of her becoming pregnant. ZEH was already taking the oral contraceptive pill.

The Tribunal noted that it was a public authority and was required to consider relevant human rights and act compatibly with them. The human rights engaged were the right to equality in section 8(3), and the right to protection from medical treatment without full, free and informed consent in section 10(c) of the Charter. The Tribunal observed that generally, limits on Charter rights imposed by legislation, which allow for involuntary medical treatment – such as the Guardianship and Administration Act 1986, Mental Health Act 2014 and Disability Act 2006 – are reasonable and justified as long as there is compliance with the safeguards within the legislation.

However, the Tribunal found that when making a decision about treatment, a public authority must ask an additional question: can the decision also be justified under the Charter? Applying the factors set out in section 7(2) of the Charter, and taking into account the international Convention on the Rights of Persons with Disabilities, the Tribunal found that permanent contraception was not the least restrictive option and not in ZEH's best interests. ZEH could continue to take the oral contraceptive pill. The Tribunal did not consent to the special procedure.

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Social housing provider is a public authority under the Charter

In Goode v Common Equity Housing Limited, the Victorian Civil and Administrative Tribunal found that a registered housing association, Common Equity Housing Limited (CEHL), is a public authority under the Charter when providing affordable social or community housing for low-income tenants, and when regulated under the Housing Act 1983 in exercising this function.

The result is that CEHL, when providing affordable social housing for low-income tenants, must act compatibly with human rights and give proper consideration to human rights. The VCAT decision may have implications for other social housing associations registered under the Housing Act 1983.

A public authority is defined under the Charter to include entities whose functions are or include "functions of a public nature," when the functions are exercised "on behalf of the state or a public authority." These are known as functional public authorities. The Tribunal found that functions of providing social housing to low income tenants are "functions of a public nature" and that, while there is no agency relationship between CEHL and the state, the regulatory regime under the Housing Act 1983 establishes a sufficient nexus such that CEHL is exercising these functions on behalf of the State.

The proceeding was otherwise dismissed. The Tribunal considered the applicant's Charter claims against CEHL and concluded that there had been no breach of the Charter.

The Commission intervened to submit that CEHL was a public authority.

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Police Registration and Services Board considers human rights in making non-publication order

In Review Decision A72/2015 (decision on publication), the Police Registration and Services Board made an order under the Victoria Police Act 2013 prohibiting the publication of names and locations to protect the human rights of witnesses and complainants to police misconduct and not deter complaints by others in the future.

The Commission was invited by the Board to intervene and make submissions. The Commission outlined relevant findings from its recent Independent Review into sex discrimination and sexual behaviour in Victoria Police to highlight that identification of complainants gives rise to a real risk of further harm and detriment and may deter complaints by others in the future. The Commission also identified relevant human rights the Board should consider, in assessing whether or not it is in the public interest for the Board to identify witnesses or complainants.

The Board's decision acknowledges that it is required to comply with the Charter. It considered that the human rights of vulnerable persons, including the right to privacy and the right to security, are to be given particular weight in applying 'open justice' provisions of the Victoria Police Act 2013. The decision is intended to provide guidance to the Board in future cases on identifying and balancing public interest factors related to non-publication orders and the exclusion of identifying information.

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VCAT applies Charter in mosque planning decision

In Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124, the Victorian Civil and Administrative Tribunal considered human rights when reviewing a decision by the Bendigo City Council to grant a permit for a mosque and associated facilities. The granting of the permit was opposed by a number of objectors.

The Tribunal accepted that both the Council and the Tribunal were public authorities and so were required to give proper consideration to human rights under section 38 of the Charter. The Tribunal agreed that the relevant Charter rights of those individuals who would use the mosque were the right to freedom of thought, religion and belief under section 14(1)(b) and cultural rights under section 19(1).

The Tribunal emphasised the importance of religious equality and freedom. In upholding the Council's decision to grant the permit, the Tribunal recognised all relevant rights when weighing up the matters before it, including the rights of the persons who will use the mosque as well as those of the objectors.

The objectors have sought to appeal VCAT's decision.

Read the case or find our more about how council planning decisions can consider human rights.

OPI fails to give proper consideration to human rights

In Bare v IBAC [2015] VSCA 197, the Court of Appeal found that the Office of Police Integrity (OPI) failed to give proper consideration to human rights when considering Mr Bare's complaint against Victoria Police. Among other things, Mr Bare had complained to OPI that he was capsicum sprayed by police while handcuffed, had his teeth chipped on the gutter during his arrest and was racially abused by officers. The OPI decided to refer the complaint to Victoria Police for investigation rather than investigating it themselves.

The Supreme Court dismissed Mr Bare's challenge of the OPI decision. However, a majority of the Court of Appeal allowed the appeal and ordered that a fresh decision be made by the Independent Broad-based Anti-corruption Commission (which has replaced the OPI). The Court of Appeal found that the OPI had failed under section 38 of the Charter to give proper consideration to Mr Bare's right to protection from cruel, inhuman and degrading treatment in section 10(b) and right to equality in section 8(3) of the Charter. The Court also found that section 10 of the Charter did not contain an implied right to an effective investigation independent of Victoria Police.

Read the judgment, and the Court of Appeal's summary of the judgment.

Charter considerations key to lawful decision-making

In Burgess v Director of Housing [2014] VSC 648, the Supreme Court found that the Director of Housing failed to give proper consideration to a public housing tenant's human rights when he issued a notice to vacate and applied for a warrant of possession.

The Court found that when making notice and warrant application decisions, the Director was obliged to consider the rights of Ms Burgess and her household to the protection of their family group and the best interests of any child affected by the decision as protected in section 17 of the Charter. He did not and the failure to do so made both decisions unlawful within the meaning of section 38 of the Charter.

Read about the case on Justice Connect and the Human Rights Law Centre

Coercive police questioning breaches human rights

In DPP v Kaba [2014] VSC 52, the Supreme Court found that two police officers failed to act compatibly with human rights when subjecting a passenger in a vehicle during a random traffic stop to coercive questioning.

The Court found that the police, in pressing Mr Kaba to divulge his name and other personal details without legal authority, breached the right in section 13(a) of the Charter not to have privacy unlawfully or arbitrarily interfered with. This also interfered with his ability to walk freely in the public streets in breach of the right to freedom of movement in section 12 of the Charter. This breached the obligation in section 38 of the Charter to act compatibly with human rights.

Read more about this case

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