12 Nov 2007
Victorian Charter of Human Rights and Responsibilities Update - Expansive Interpretation of Rights
The Charter has opened the way to an expansive interpretation of human rights in Victoria, by allowing Victorian courts to consider the decisions of foreign courts when interpreting statutory provisions.
The experience in these jurisdictions has been that courts tend to interpret human rights broadly. As a result, many of the rights in the Charter have far broader scope and application than might otherwise be assumed.
The challenge for public authorities will be to understand the true scope and application of the rights, and to adapt their decision making and actions accordingly.
Following are some examples of rights that have a far broader application than a plain reading might have revealed.
Right to non-interference with privacy, family, home and correspondence
Section 13 (1) of the Charter provides that ‘A person has the right…not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’. Courts in comparable jurisdictions have applied this right to:
Medical law (for example, the taking of blood samples to be used in criminal proceedings without the person's consent).
Family law (for example, the removal of a child under child protection legislation).
Planning (for example, the location of sewage plants, waste disposal sites and aircraft routes near
private homes).
Right to freedom from torture and inhuman or degrading treatment
Section 10 of the Charter provides that ‘A person must not be…subjected to torture or…treated or punished in a cruel, inhuman or degrading way’. The UK courts have applied the right in the field of discrimination (for instance, on the ground of sexuality) where the aggrieved person had been exposed to serious public humiliation.
Right to liberty
Section 21 of the Charter provides a broad suite of rights in relation to liberty, including ‘the right to liberty and security’ and ‘a person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law’. The right has been applied in comparable jurisdictions in the context of:
Challenge for Public Authorities
Public authorities carry significant obligations under the Charter. To ensure that their actions and decisions comply with those obligations, public authorities need to understand the true scope and application of the rights laid down in the Charter, with reference to the case law of comparable jurisdictions and the case law of Victoria as it develops. It will be vital that anyone seeking to defend the actions or decisions of a public authority from challenge under the Charter also understands thoroughly the scope and application of the rights.
For further information, please contact:
Rachel Walsh, Partner
Tel: +61 3 9274 5223
rachel.walsh@dlaphillipsfox.com