This case raised the question of how section 39(1) of the Charter operates. In particular whether the Victorian Civil and Administrative Tribunal (VCAT) had jurisdiction under section 39(1) to consider a person’s claims that their human rights in the Charter had been breached.
The Commission intervened to make submissions on the operation of section 39(1) of the Charter. Section 39(1) states:
"If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter."
The Commission's position was that, where a person has legal proceedings against a public authority alleging they have acted unlawfully other than because of the Charter, section 39 allows them to claim the public authority has acted unlawfully because of the Charter. In particular, the Commission argued that the court or tribunal can determine a person’s Charter unlawfulness claim even where their non-Charter unlawfulness claim is unsuccessful.
In November 2014, the Supreme Court held that VCAT does not lose the jurisdiction it has under section 39(1) of the Charter to grant relief or remedy on a ground of Charter unlawfulness in cases where the ground of non-Charter unlawfulness is not determined or rejected.