Judicial College of Victoria Online Journal Human Rights Under the Charter: The Development of Human Rights Law in Victoria Volume 02 | 2014 Special Edition Citation: This journal can be cited as (2014) 2 JCVOJ. Guest Editor: The Hon Chief Justice Marilyn Warren AC The Hon Justice Pamela Tate ISSN: ISSN 2203-675X Published in Melbourne by the Judicial College of Victoria. About the Judicial College of Victoria Online Journal The Judicial College of Victoria Online Journal provides practitioners and the wider legal community with a glimpse into materials previously prepared for the Judicial College of Victoria as part of its ongoing role of providing judicial education. Papers published in this journal address issues that include substantive law, judicial skills and the interface between judges and society. This journal highlights common themes in modern judicial education, including the importance of peer learning, judicial independence and interdisciplinary approaches. Submissions and Contributions The Judicial College of Victoria Online Journal welcomes contributions which are aligned to the journal’s purpose of addressing current legal issues and the contemporary role of judicial education. Manuscripts should be sent electronically to the Judicial College of Victoria in Word format. The Judicial College of Victoria Online Journal uses the Australian Guide to Legal Citation: http://mulr.law.unimelb.edu.au/go/AGLC3. Disclaimer The views expressed in this journal are those of the authors and do not necessarily reflect the views of the Judicial College of Victoria and the Editor. While all care has been taken to ensure information is accurate, no liability is assumed by the Judicial College of Victoria and the Editor for any errors or omissions, or any consquences arising from the use of information contained in this journal. Contact: Correspondence can be sent to: Judicial College of Victoria T: 03 9032 0555 Level 7, 223 William Street F: 03 9032 0500 Melbourne VIC 3000 E: [email protected] © 2014 Judicial College of Victoria, Level 7, 223 William Street, Melbourne VIC 3000 Copyright of the material appearing in this journal remains vested in the authors unless otherwise indicated. Judicial College of Victoria Online Journal Volume 02 | 2014 Judicial College of Victoria Online Journal Volume 2 | 2014 2 Editorial The Hon Chief Justice Marilyn Warren AC The Hon Justice Pamela Tate 4 A Voyage Around Statutory Protections of Human Rights The Rt Hon Chief Justice Dame Sian Elias GNZM 30 The Role of Judges in Human Rights Jurisprudence: A Comparison of the Australian and UK Experience The Rt Hon Lord David Neuberger of Abbotsbury 43 Statutory Interpretive Techniques under the Charter: Three Stages of the Charter — Has the Original Conception and Early Technique Survived the Twists of the High Court’s Reasoning in Momcilovic? The Hon Justice Pamela Tate 69 Statutory Interpretive Techniques Under the Charter — Section 32 The Hon Sir Anthony Mason AC KBE GBM 77 Obligations of Public Authorities Under Section 38 of the Victorian Charter of Human Rights and Responsibilities The Hon Justice Emilios Kyrou 91 Bringing Legal Proceedings Against Public Authorities for Breach of the Charter of Human Rights and Responsibilities Mark Moshinsky QC 103 Proportionality in Comparative Analysis Professor Bryan Horrigan 153 The Impact of Charter Jurisprudence on Human Rights in Prisons Doctor Julie Debeljak 166 Application of the Victorian Human Rights Charter in Legal Practice: Discrimination and Equal Opportunity Hugh de Kretser Judicial College of Victoria Online Journal Volume 02 | 2014 2 Editorial This edition of the Judicial College of Victoria Online Journal gathers together papers delivered at a conference held in Melbourne on 7-8 August 2014, ‘Human Rights Under the Charter: The Development of Human Rights Law in Victoria’. It provides an opportunity to share those papers with the wider legal community. The conference itself was a historic occasion. The result of collaboration between the Supreme Court of Victoria, Monash University’s Faculty of Law, the Judicial College of Victoria, the Victoria Law Foundation, and the Human Rights Law Centre, the conference was an ideal opportunity to reflect on six and a half years of jurisprudence in Victoria arising from theCharter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’). Informed by local and international perspectives and including presentations from members of the judiciary, the academy, and the profession, the conference covered many key Charter topics affecting the courts including proportionality analysis, interpretative obligations, public authorities and the application of the Charter in legal practice. In preparation for the commencement of the relevant parts of the Charter on 1 January 2008, the Judicial College of Victoria delivered training programs for judges, magistrates and VCAT members. In February 2007, Chief Justice Marilyn Warren opened the first of those programs, saying: We, as the judiciary of Victoria, have before us the opportunity to take the common law, foreign jurisprudence and every ounce of our intellectual capacity to develop the first Australian jurisprudence of human rights law. It is a moment of excitement and exhilaration but also one of trepidation and reservation.1 Since then, Victorian courts have considered the Charter in relation to matters such as post- sentence detention,2 the best interests of the child principle,3 criminal law,4 actions by public authorities,5 legislation affecting the imprisonment of intellectually disabled people for failure to pay fines,6 bail and the treatment of prisoners.7 1 Introduction to Human Rights, 19 February 2007, Introductory Remarks, program conducted by the Judicial College of Victoria. 2 DPP v JPH (No 2) [2014] VSC 177 (16 April 2014); RJE v Department of Justice (2008) 21 VR 526; Nigro v Secretary to the Department of Justice (2013) 304 ALR 535. 3 A & B v Children’s Court of Victoria (2012) VSC 589 (7 December 2012); Re Beth [2013] VSC 189 (23 April 2013). 4 Magee v Delaney (2012) 225 A Crim R 151; DPP v Mokbel (Orbital & Quills Ruling No 1) [2010] VSC 331 (5 August 2010); WK v R (2011) 33 VR 516; Momcilovic v R (2011) 245 CLR 1. 5 PJB v Melbourne Health [2011] VSC 327 (19 July 2011); Giotopoulos v Director of Housing [2011] VSC 20 (7 February 2011); Antunovic v Dawson (2010) 30 VR 355; Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010); Kracke v Mental Health Review Board (2009) 29 VAR 1; Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414; Director of Housing v Sudi (2011) 33 VR 559. 6 Victoria Police Toll Enforcement v Taha [2013] VSCA 37 (4 March 2003). 7 Re Dickson [2008] VSC 516 (26 November 2008); Gray v DPP [2008] VSC 4 (16 January 2008); Castles v Secretary, Department of Justice (2010) 28 VR 141; Judicial College of Victoria Online Journal Volume 02 | 2014 3 Common to almost all these cases are questions of statutory interpretation. This demonstrates (if there was any doubt) the growing reach of legislation and the importance of statutory interpretation in modern court proceedings. The effect of theCharter on statutory interpretation is integral to legal practice in Victoria. As the papers in this journal show, areas of uncertainty remain in Victorian human rights law: What is the correct method for giving effect to the direction in s 32 that, so far as possible, legislation must be interpreted compatibly with human rights? How are the decisions of public authorities tested for compliance with the Charter? How is proportionality to be assessed? These questions will inevitably be resolved, when the appropriate cases come forward, using the traditional tools of adversarial litigation, statutory interpretation and judicial reasoning. Despite the encouragement of courts, and the support of individual judges, we continue to see reluctance on the part of practitioners to raise arguments under the Charter. It is hoped that this collection of papers will assist practitioners to develop their skills and expertise in Charter jurisprudence. Not only will building their awareness of the Charter assist practitioners to identify relevant issues and to ask the right questions about a case, it will also assist them to come to court equipped with cogent submissions on the Charter’s operation and effect on statutory interpretation. Through this process, we will resolve unanswered questions about the Charter, and further develop internationally recognised human rights jurisprudence in Victoria. The Hon Chief Justice Marilyn Warren AC Supreme Court of Victoria Chair of the College The Hon Justice Pamela Tate Court of Appeal Supreme Court of Victoria Judicial College of Victoria Online Journal Volume 02 | 2014 4 A Voyage Around Statutory Protections of Human Rights* The Rt Hon Chief Justice Dame Sian Elias GNZM† In 2004, Lord Cooke, Baron of Thorndon, expressed confidence that the world was moving gradually to a single law of human rights.1 He was writing against the background of the great success of human rights instruments following the Second World War. The Declaration of Human Rights was followed by the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights and the adoption of statements of rights in the constitutions of the newly independent Commonwealth countries. Even those countries which lacked constitutional statements of rights gradually became open to the scrutiny of international or supranational agencies. The United Kingdom became subject to the European Court of Human Rights. The accession by New Zealand and Australia to the First Optional Protocol to the International Covenant on Civil and Political Rights brought access to the United Nations Human Rights Committee for those who had exhausted their domestic remedies. The cold wind of measurement against international human rights standards took away some of the warm complacency with which we regarded common law protection. Protection of human rights in domestic law was given impetus by the adoption in Canada of a Charter of Rights and Freedoms (‘the Canadian Charter’).