Charter Case Audit Search

Last updated August 2017.

Total Number of cases: 648

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All Charter Cases


Results in date order

Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA (29 December 2016)

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Date of Dec: 29.12.2016 Court or Tribunal: Supreme Court of Victoria - Court of Appeal Area of Law: Administrative Law
Base Cause: Application for leave to appeal the trial judge's findings that orders made by the Minister for Families and Children were unlawful. The orders were to establish a section of Barwon Prison as a centre for the detention of young persons.
Charter Section: s 38(1) Who Raised the Charter: Party
Charter Argument: The applicants challenged the trial judge's declaration that the orders in council were unlawful under s 38(1) of the Charter, because the Minister in recommending, and the Governor in Council in making, the Orders in Council failed to give proper consideration to the human rights described in ss 10(b), 17(2) and 22(1) of the Charter.
Charter Upheld: No, the ground of appeal relating to the judge's finding of Charter unlawfulness was adjourned to a date to be fixed after 1 February 2017.
Decision: To be considered at adjourned hearing. Ranking 1 ?
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Minogue v Shuard [2016] VSC 797

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Date of Dec: 23.12.2016 Court or Tribunal: Supreme Court of Victoria Area of Law: Administrative Law
Base Cause: Application for an order quashing the Commissioner for Corrections Victoria's decision not to support the applicant's participation in a diploma of counselling course.
Charter Section: ss 15(2)(b)-(c) Who Raised the Charter: Party
Charter Argument: The applicant sought a declaration that the respondent's Distance Education Policy and Procedural Framework unlawfully limited the operation of the right of freedom of expression under the Charter.
Charter Upheld: No, the Court declined to grant Dr Minogue the declaration the applicant sought in respect of ss 15(2)(b) and (c) of the Charter, as no question arises as to whether Dr Minogue’s freedom of expression has been limited by the application of the Policy. The interrelationship between the rights arising under s 15(2) and the rights conferred upon prisoners by the Corrections Act 1986 (Vic) is a matter with significant potential ramifications for all prisoners in Victoria. The determination of this issue should await proceedings in which the application of s 15(2) can be considered in the context of an extant controversy.
Decision: Application for relief rejected. The applicant's arguments related to hypotheticals and did not relate to a factual controversy or an infringement of the applicant's rights. Ranking 1 ?
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Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796

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Date of Dec: 21.12.2016 Court or Tribunal: Supreme Court of Victoria Area of Law: Administrative Law
Base Cause: Orders in Council established the Grevillea Youth Justice Precinct in Barwon Prison, and transfer decisions moved the plaintiffs into that Precinct. The Plaintiffs argued that the Orders in Council and transfer decision did not take into account relevant considerations, were made for an improper purpose, and were therefore invalid.
Charter Section: ss 10(b), 17(1), 17(2), 22(1), 38(1) and 32(2) Who Raised the Charter: Party
Charter Argument: The plaintiffs argued that Charter rights were engaged and contravened under ss 10(b), 17(1), 17(2), 22(1) when Orders in Council were made, and when the transfer decisions were made.
Charter Upheld: Yes, the court found that the recommendation by the Minister to make Orders in Council, and the Orders themselves, contravened s38(1) of the Charter as proper consideration was not given to the rights of the plaintiffs under ss 10(b), 17(2) and 22(1).
Decision: The court held that when the Orders in Council were made, both the Minister and Governor in Council failed to take relevant considerations into account. Further, that the Orders in Council were made for an improper purpose. However, the Orders in Council were found to be invalid under the Children, Youth and Families Act 2005 rather than the Charter. The court found that the issue of whether contravention of s 38(1) of the Charter gives rise to invalidity of the decision stands to be finally decided by appellate courts at a future time. Ranking 4 ?
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R (on the application of the Chief Examiner) v DA (a pseudonym) [2016] VSCA 325

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Date of Dec: 16.12.2016 Court or Tribunal: Supreme Court of Victoria - Court of Appeal Area of Law: Criminal Law
Base Cause: Contempt of the Chief Examiner pursuant to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004.
Charter Section: ss 25(1) and 32(1) Who Raised the Charter: Party
Charter Argument: S 49(1)(b) of the Major Crime (Investigator Powers) Act 2004 was incompatible with the presumption of innocence under s 25(1) of the Charter because it provides that a person is in contempt of the Chief Examiner if they fail to answer a question put to them without a reasonable excuse, thus reversing the onus of legal proof.
Charter Upheld: No, section 49(1) was consistent with the Charter.
Decision: The legal burden was on the prosecution (the Chief Examiner) to prove beyond reasonable doubt that the offence - and excuse - was reasonable. There was only an evidentiary onus on the examinee to provide a reasonable excuse. There was no onus to prove on the balance of probabilities that an excuse was reasonable. Ranking 3 ?
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Whittingham v Yeo (Human Rights) [2016] VCAT 2096

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Date of Dec: 14.12.2016 Court or Tribunal: Victorian Civil and Administrative Tribunal Area of Law: Discrimination Law
Base Cause: Application for summary dismissal of unjustified proceedings under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Charter Section: s 24 Who Raised the Charter: Party
Charter Argument: The Applicant submitted that the application should not succeed because to do so would allow a breach of s 24 of the Charter.
Charter Upheld: No, the Tribunal considered that the Charter is not engaged because the VCAT Act 1998 (Vic) already requires the Tribunal to act fairly and be bound by natural justice.
Decision: Application for victimisation was withdrawn, application for discrimination dismissed under s 75(1)(a) of the VCAT Act 1998 (Vic) Ranking 2 ?
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X v Callanan & Anor [2016] QCA 335

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Date of Dec: 13.12.2016 Court or Tribunal: Area of Law: Criminal Law
Base Cause: Application for orders allowing the appeal and a declaration that ss 190 and 197 of the Crime and Misconduct Act 2001 (Qld) are invalid.
Charter Section: s 25 Who Raised the Charter: Court
Charter Argument: The Court cited part of the judgment in R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459, regarding the right in s 25(k) of the Charter that a person not be compelled to testify against themselves. The Court raised this in relation to the companion rule, however there is no similar articulation of rights in Queensland.
Charter Upheld: No - the Charter was not applicable to the decision.
Decision: Appeal was dismissed as the principle of the companion rule was not engaged, and secondly that the review was within the powers of the Queensland Court and were not unconstitutional. Ranking 0 ?
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Application for Bail by HL [2016] VSC 750

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Date of Dec: 13.12.2016 Court or Tribunal: Supreme Court of Victoria Area of Law: Criminal Law
Base Cause: Application for bail by a child under ss 3B, 4 and 5 of the Bail Act 1977 (Vic) (applicant was in a show cause situation having been charged with an indictable offence whilst on bail).
Charter Section: ss 7(2), 17(2), 22(1), 22(3) and 26(3); 32(1) Who Raised the Charter: Party
Charter Argument: The applicant asked the court to determine whether his detention in Barwon Prison contravened his Charter rights under ss 17(2), 22(1), 22(3) and 25(3). Further, whether the court was obligated under Part 2 of the Charter of uphold those rights in determining a bail application, and under s 32(1) of the Charter to interpret the Bail Act 1977 (Vic) in a manner compatible with those sections.
Charter Upheld: In part. S 32(1) was not relied upon as none of the relevant Bail Act 1977 (Vic) provisions were ambiguous or multiple interpretations were possible, so there was no need to depart from the meaning of the provisions. However, pursuant to Part 2 of the Charter the court presumed (but did not make an actual finding as to) contravention of the applicant's rights under ss 17(2), 22(1) and 22(3) at points in time during his time at Barwon Prison. There was no evidence to support a breach of s25(3).
Decision: The bail application was denied as the risk presented by the applicant was unacceptable. The presumed infringements of the applicant's Charter rights did not make that risk acceptable. Ranking 3 ?
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Attorney-General v Glass (in her capacity as Ombudsman) [2016] VSCA 306

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Date of Dec: 9.12.2016 Court or Tribunal: Supreme Court of Victoria - Court of Appeal Area of Law: Administrative Law
Base Cause: The Victorian Legislative Council requested that the Ombudsman investigate allegations of ALP members misusing staff budget entitlements and otherwise breaching applicable policies. The Attorney General argued that the Ombudsman had no jurisdiction to conduct the investigation under s 16 of the Ombudsman Act 1973 (Vic), and that the primary judge erred in deciding that she did.
Charter Section: N/A Who Raised the Charter: Court
Charter Argument: The court referenced the Ombudsman Act 1973 (Vic) which, in ss 13(2) and 13AA(2), states that the function of the Ombudsman includes the power to inquire whether administrative actions under ss 13(1) and 13AA(1)(a) are incompatible with Charter rights. No other reference to or application of Charter.
Charter Upheld: No, the Charter was only mentioned in passing as the court set out ss 13 and 13AA of the Ombudsman Act 1973 (Vic).
Decision: The court affirmed the decision of the primary judge and held that, on proper construction, the Ombudsman did have the jurisdiction to conduct the investigation under s 16 of the Ombudsman Act 1973 (Vic). Ranking 0 ?
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Victoria Police v Firearms Appeals Committee (Review and Regulation) (Amended) [2016] VCAT 2069

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Date of Dec: 9.12.2016 Court or Tribunal: Victorian Civil and Administrative Tribunal Area of Law: Administrative Law
Base Cause: Application for review of Firearms Appeals Committee's decision under s 50 of the Firearms Act 1996 (Vic) that the Respondent was a fit and proper person to hold a firearms licence.
Charter Section: ss 7, 15 and 18 Who Raised the Charter: Court
Charter Argument: The Tribunal noted that the Respondent's rights to freedom of political expression and to take part in public life were not impinged by him not holding firearms licences.
Charter Upheld: No, the Respondent's rights had not been interfered with.
Decision: The Tribunal reversed the Committee's decision, finding that the Respondent was not a fit and proper person to hold a firearms licence. Ranking 2 ?
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Wotton v State of Queensland (No 5) [2016] FCA 1457

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Date of Dec: 5.12.2016 Court or Tribunal: Federal Court of Australia Area of Law: Discrimination Law
Base Cause: Application for declaration of contravention of s 9(1) of the Racial Discrimination Act 1975 (Cth).
Charter Section: s 13 Who Raised the Charter: Court
Charter Argument: The Court raised the right to privacy and arbitrary interference under the Charter of Human Rights and when interference is arbitrary.
Charter Upheld: No, the Charter was raised in discussion of the right to privacy and was not a basis of the cause of action.
Decision: There was an unlawful contravention of section 9(1) of the Racial Discrimination Act 1975 (Cth). Ranking 0 ?
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