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When is "unlawful" unlawful?

Feature Articles

Cite as: March 2015 89 (3) LIJ, p.54

Under the Charter of Human Rights and Responsibilities Act 2006 a public authority has obligations in terms of how it acts or makes decisions which affect human rights. However, the circumstances in which such issues may be brought to bear in litigation have not proven straightforward.

By Bruce Chen

In Director of Housing v Sudi (Sudi)1 the Court of Appeal (per Warren CJ, Maxwell P and Weinberg JA) unanimously found that the Victorian Civil and Administrative Tribunal (VCAT) did not have power to examine whether a decision by the Director of Housing to apply for a possession order would be in breach of s38(1) of the Charter of Human Rights and Responsibilities Act 2006 (the Charter).

Section 38(1) imposes obligations on public authorities – such as public officials and certain entities exercising functions of a public nature – so that it is unlawful for them to act in a way that is incompatible with a human right or, in making a decision, fail to give proper consideration to a relevant human right.

However, the Charter does not purport to provide a new or independent right to relief or remedy for breach of s38(1).2 No new cause of action is created under the Charter. Rather, s39(1) of the Charter provides that:

“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”.

In Sudi the Court of Appeal made clear that s38(1) claims could comfortably be brought in judicial review proceedings in the Supreme Court.3 However, the Court of Appeal found that VCAT could not review the Director of Housing’s decision on grounds of s38(1) breach, as this would otherwise amount to a collateral form of judicial review. No such power was conferred by the applicable legislation, nor was it made permissible by s39(1) of the Charter.4

How s39(1) ought to be properly applied post-Sudi has been the subject of conjecture. It has been contended by certain parties that the effect of Sudi is such that arguments of s38(1) breach can only be made in judicial review proceedings.

This article examines several cases in which a contrary view has been reached and Sudi distinguished. For present purposes, they may be placed into two non-exhaustive categories: (1) where issues under s38(1) of the Charter are said to arise directly in proceedings before VCAT; and (2) where collateral challenges are permissible in court proceedings.

VCAT and Charter issues

Caripis v Victoria Police

In Caripis v Victoria Police (Caripis)5 the applicant had attended a climate change protest at a coal-fired power station. Victoria Police monitored the protest and took video footage (as well as photographs), including of the applicant.

The applicant complained that Victoria Police’s retention of images of her participating at the protest interfered with her privacy under the Information Privacy Act 2000. She also argued breach of s38(1), including with respect to the right to privacy (s13(a)).

In relation to the Charter issues, Senior Member Steele of VCAT found that the applicant could not have had a “reasonable expectation” of privacy in the circumstances, and the retention of images lacked a requisite “level of seriousness” (e.g. the protesters themselves had taken photographs and uploaded them to social media). Nevertheless, Steele SM turned to consider whether the applicant would have been entitled to rely on arguments of s38(1) breach pursuant to s39(1) of the Charter.

Victoria Police relied on Sudi to submit that since VCAT had no judicial review jurisdiction, it had no power to review the lawfulness of Victoria Police’s actions under s38(1). However, Steele SM distinguished Sudi:

“[T]he Tribunal would not be venturing into the realm of judicial review in considering whether the Respondent’s retention of the images of the Complainant was unlawful under the Charter. [. . .] In Sudi, the Director’s decision to bring the proceeding was not a matter which the Tribunal could review because the decision was collateral to the proceeding itself. In the present case, the Respondent’s decision to retain the images of the Complainant is being directly considered by the Tribunal. The lawfulness of that retention is under review because it is said to be ‘unlawful’ under [the Information Privacy Act]”.6

Accordingly, the question of Charter unlawfulness was also found by the Tribunal to fall within its jurisdiction. However, given the Tribunal’s earlier findings that there had been no Charter unlawfulness, that complaint was dismissed.

Slattery v Manningham CC

VCAT went further in the case of Slattery v Manningham CC (Slattery)7 which represents the first occasion post-Sudi that the Tribunal has found a breach of s38(1) of the Charter by a public authority.

The applicant, who had multiple disabilities, was a resident of the municipality. He was a frequent complainant to the Council (which described him as “rude, offensive, threatening, aggressive”). The Council passed a motion declaring him a proscribed prohibited person and he was banned from attending any building owned, occupied or managed by the Council. As a result, the applicant said he wasn’t able to take part in Council activities, take his grandchildren to the local pool, or use public toilets or the local library.

Senior Member Nihill of VCAT found that the Council’s decision to maintain the ban amounted to direct discrimination. In respect of s39(1) and the Council’s public authority obligations under the Charter, the Council submitted, in light of Sudi, that an act is not unlawful under the Charter unless it is unlawful “in an administrative law sense”, and that the Tribunal here was not reviewing conduct in that sense.

Nihill SM considered that it was “perfectly clear” from Sudi that the Tribunal had no power to conduct a review of a decision that was collateral to the proceedings before it. However, she found that Sudi did not apply to prevent the question of whether s38 had been complied with from being considered. Nihill SM agreed with the position set out in Caripis, and found that the Tribunal was directly dealing with the question of whether the Council’s decision was lawful or in breach of the Equal Opportunity Act 2010.8 She cited in support the following passage of Weinberg JA’s reasons for decision in Sudi:

“The question whether a public authority has acted unlawfully may be central to the resolution of a dispute where the lawfulness or otherwise of such conduct is an element of the cause of action in the proceeding . . . In (that) case, the Charter issue arises directly in the course of the proceeding and must be resolved according to law.”9

Nihill SM considered that maintaining the ban had limited the applicant’s human rights, such as the right to participate in public affairs (s18), the right to freedom of expression (s15) and the right to equality (s8(2)). Such limitations, in her view, were not reasonable and could not be demonstrably justified.10 Maintaining the ban was, among other things, “disproportionately extensive and unspecified” and “blunt, broad and insufficiently tailored”. The Council was found to have breached its s38(1) obligations. The Tribunal ultimately granted the applicant remedies, including requiring the Council to revoke the ban and provide Charter training to its councillors and senior staff, and making a declaration of breach of the applicant’s human rights.11

Goode v Common Equity Housing

Most recently in Goode v Common Equity Housing (Goode)12 (also a complaint of discrimination), the Supreme Court on appeal from VCAT confirmed the approach taken in Caripis and Slattery. Justice Bell held that for the purposes of s39(1), it is “perfectly apt to describe as ‘unlawful’ an act or decision that is prohibited or proscribed by, or contrary to, a statutory provision or the common law or that is inconsistent with a norm or standard prescribed in such a provision or law”. Here the conduct was prohibited by statute and thus “unlawful”.13

The Tribunal had rejected the complaint of discrimination and found that, as a result, it did not have jurisdiction to hear claims of s38(1) breach. However, Bell J held that the non-Charter ground did not have to be determined or successful to satisfy s39 of the Charter. In failing to exercise its jurisdiction, the Tribunal had erred in law and the appeal was upheld.14 His Honour also clarified that claims of s38(1) breach do need to be in respect of the same act or decision as the non-Charter claim.15


VCAT has a broad jurisdiction. Given the approach taken in Caripis, Slattery and Goode, Charter arguments can potentially be raised and a public authority’s acts or decisions scrutinised on Charter grounds in proceedings where the Tribunal is empowered to determine whether that same act or decision is prohibited or proscribed by, or in breach of, an enactment (complaints of privacy breaches and discrimination being two such examples).16

It should also be noted that VCAT (as well as a court) is a public authority when acting in an administrative capacity.17 It has been found to be a public authority when hearing and determining certain kinds of proceedings in both its original18 and review19 jurisdictions. Therefore, the Tribunal may itself be bound to act compatibly with human rights and, in making a decision, to give proper consideration to relevant human rights depending on whether it is a public authority.

Courts and permitted collateral challenges

The Queen v De Bono

The second way in which Sudi has been distinguished is in circumstances where a collateral challenge is permissible. This is particularly relevant to courts as existing case law establishes that administrative decisions can generally be collaterally challenged in a court to some extent.20

In The Queen v De Bono (De Bono)21 the accused was seeking to quash a charge of refusing to take an oath or affirmation before the Chief Examiner. The accused had been the subject of a Coercive Powers Order (CPO) made by the Supreme Court under the Major Crime (Investigative Powers) Act 2004. That Act provides a regime for the authorisation of coercive powers to investigate organised crime offences. If the Court was acting in an administrative capacity when making the CPO, it would have been a public authority bound to comply with s38(1) of the Charter.

In seeking to quash the charge on a pre-trial application pursuant to the Criminal Procedure Act 2009, the accused argued that the CPO had been made unlawfully because, among other things, it was in breach of s38(1). This was a collateral challenge to the validity of the CPO, since the making of the CPO itself was not being challenged directly on appeal.

Justice Kyrou did not decide whether the Court, in making the CPO, was bound by the Charter as a public authority. In obiter, his Honour considered that even if the Court was bound, there was no breach of s38(1). The human rights which were potentially relevant – the right to a fair hearing (s24) and the right not to incriminate oneself (s25(2)(k)) – only applied to persons who were the subject of charges. At that relevant time, the accused was not the subject of any pending charges. Nevertheless, putting to one side that there was no breach, his Honour expressed the view that s39(1) of the Charter would have been satisfied, and the accused able to rely on Charter grounds.

In doing so, Kyrou J distinguished Sudi. His Honour noted that the Court of Appeal had “left open the question of whether relief by way of a collateral challenge to the validity of an administrative act in a criminal proceeding satisfies [s39(1) of the Charter]”. Here, collateral challenge of the CPO was permitted by the Criminal Procedure Act on a pre-trial application to quash the charge. The accused, in bringing the application, had availed himself of a right to seek a relief or remedy independently of the Charter. Section 39 was thus satisfied.22


Although in obiter, the implications of De Bono are that where a legislative scheme permits the collateral challenge of an administrative decision or act, be it in the criminal law context or otherwise, a court may well distinguish Sudi. It may find that arguments of breach of s38(1) can be raised in such court proceedings (which are not brought by way of judicial review). This is despite some of the judges in Sudi appearing to express some doubt or uncertainty as to whether such arguments could be raised in instances of collateral challenge.23


The cases discussed in this article are highly encouraging to Charter advocates. They express the view that claims of breach of s38(1) by a public authority are not limited to judicial review proceedings. According to those cases, the Court of Appeal in Sudi did not make findings to that extent – s38(1) claims may be properly raised in certain other circumstances, and findings of breach could potentially be made. This gives the Charter – as beneficial legislation protective of fundamental human rights – an appropriately broad scope of application. It also means that reviewing public authority obligations under s38(1) are not the exclusive domain of the Supreme Court. Nevertheless, this issue of whether s39(1) unlawfulness is confined post-Sudi to unlawfulness in the judicial review sense, or whether it connotes a much broader concept, is yet to be clarified by the Court of Appeal.

Postscript: In the recent decision of DPP v Kaba [2014] VSC 52, the Supreme Court partly upheld the reasoning of a Magistrate who had excluded evidence of alleged criminal offences. The Evidence Act 2008 gives courts a discretion to exclude improperly or illegally obtained evidence. The accused was a motor vehicle passenger. He was persistently questioned (to the point of coercion) by Victoria Police for his name and details, despite having done nothing wrong. Justice Bell upheld the Magistrate’s finding that Victoria Police had breached his right to privacy (s13(a)). His Honour confirmed that breach of s38(1) was improper and in contravention of Australian law, thereby supplying the element of unlawfulness for the purposes of the Evidence Act. Section 39 of the Charter was not raised as an issue in this case. It demonstrates another way in which the Charter may be raised outside of judicial review proceedings.

BRUCE CHEN is a senior legal adviser at the Victorian Equal Opportunity and Human Rights Commission. The views expressed in this article are his and do not represent the views of the Commission.

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  1. [2011] VSCA 266.
  2. Explanatory Memorandum, Charter of Human Rights and Responsibilities Act 2006 (Vic) 2849.
  3. See, for example, Burgess & Anor v Director of Housing v Anor [2014] VSC 648, [212]-[222].
  4. For a more detailed analysis of the Court of Appeal’s reasons for decision, see Matthew Groves, “Tribunals, Judicial Review and the Victorian Charter” (2012) 23 Public Law Review 3, 9.
  5. (Health and Privacy) [2012] VCAT 1472.
  6. Note 5 above, at [98]-[99].
  7. (Human Rights) [2013] VCAT 1869.
  8. Note 7 above, at [160].
  9. [2011] VSCA 266, [152] (VCAT’s emphasis).
  10. Section 7(2) of the Charter, particularly in respect of sub-s7(2)(e).
  11. Slattery v Manningham CC (Human Rights) [2014] VCAT 1442.
  12. [2014] VSC 585.
  13. Note 12 above, at [26].
  14. Note 12 above, at [42].
  15. Note 12 above, at [43]-[45].
  16. See also Kuyken v Lay [2013] VCAT 1972 (presently on appeal), which was another complaint of discrimination as well as victimisation. The Tribunal followed the approach in Caripis and Slattery. See further the pre-Sudi case of Kracke v Mental Health Review Board (2009) 29 VAR 1 regarding the lawfulness of the respondent’s conduct in relation to delayed reviews of treatment orders under the Mental Health Act 1986.
  17. Section 4(1)(j) of the Charter.
  18. See Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869; PJB v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327; DS v Aboriginal Housing Victoria (Residential Tenancies) [2013] VCAT 1548.
  19. See Kracke v Mental Health Review Board (General) (2009) 29 VAR 1; XYZ v Victoria Police (General) [2010] VCAT 255; Director of Public Transport v XFJ [2010] VSC 319.
  20. Director of Housing v Sudi [2011] VSCA 266, [26] per Warren CJ, citing Ousley v The Queen (1997) 192 CLR 69 and Attorney-General (Cth) v Breckler (1999) 197 CLR 83.
  21. [2013] VSC 407.
  22. Note 21 above, at [77]-[79], [85]-[86], [88]; see also Bare v Small [2013] VSC 129, [110]-[111] per Williams J (in obiter) (presently on appeal).
  23. See [2011] VSCA 266, [96]-[97] per Maxwell P; [215]-[218], [282] per Weinberg JA.


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