Victorian Charter of Human Rights and Responsibilities - Proportionality vs Wednesbury Reasonableness: A new test

The Charter introduces a new test of proportionality when considering the lawfulness of a public authority's acts or decisions.

This is significantly different to the Wednesbury reasonableness test with which we are more familiar in Victoria. The challenge for public authorities will be to adapt their decision making and policies to the new test in order to comply with the Charter.

Section 7(2)

Section 7(2) reads:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including:

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Comparing the tests

Under the Wednesbury test, the court asks whether an administrative decision is so unreasonable that it could not have been made by a reasonable decision-maker. The proportionality test requires a court to consider the purpose of limiting the rights and to balance that purpose against the impact on the person’s rights.

Move to proportionality

After 1 January 2008, it will be possible to challenge decisions of public authorities under the current judicial review remedies, or to challenge acts and decisions as unlawful under the Charter. In all probability, both causes of action will be pursued at once.

Proportionality will be attractive because it is an easier threshold to cross. The experience in comparable jurisdictions shows that applicants seeking to mount claims or challenges under bills of rights succeed more readily under the proportionality test than the Wednesbury reasonableness test.

Proportionality also has a potentially wider application under the Charter. Wednesbury reasonableness is currently raised only in judicial review of administrative decisions, whereas the Charter applies the proportionality test to acts as well as decisions. 

The Challenge for Public Authorities

Public authorities should seek to make their decision making and associated policies compliant with human rights. If a challenge is made, it will be crucial that those seeking to defend the act or decision have a thorough understanding of the scope and application of human rights in the Charter, taking into account Victorian case law and the case law of the comparable jurisdictions, in order to determine whether rights are in fact being limited.

For further information, please contact:

Rachel Walsh, Partner
Tel: +61 3 9274 5223
rachel.walsh@dlaphillipsfox.com