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3.2. Obligations on public authorities (s 38)

  1. Section 38(1) states that it is ‘unlawful for a public authority to act in a way that is incompatible with a [Charter] right or, in making a decision, to fail to give proper consideration to a relevant [Charter] right’, subject to certain exceptions set out in the remainder of the section.
  2. Section 38(1) imposes obligations on public authorities to observe Charter rights, in accordance with the intention of Parliament that the Charter have a normative effect on administrative practice (Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [271] (Weinberg JA)).
  3. The obligations imposed by s 38(1) apply regardless of whether it is possible to identify a particular person who will be affected by the act or decision in question. It is enough for there to be a potential impact on the Charter rights of a class of persons (Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251 [190] (‘Certain Children (No 2)’).
  4. The rest of s 38 sets out exceptions to the rule. Section 38(1) does not apply:
  5. A public authority is not bound by s 38(1) when it makes subordinate legislation. Rather, the subordinate legislation is subject to interpretation in accordance with the interpretative provision in s 32(1). However, the acts or decisions of public authorities taken under the subordinate legislation will be subject to s 38(1), unless the s 38(2) exception applies (Kerrison v Melbourne City Council (2014) 228 FCR 87; [2014] FCAFC 130 [189]–[200]).
  6. Non-compliance with s 38(1) results in unlawfulness, but the consequences of this unlawfulness is not clear. No cause of action is created by s 38, or its companion ‘remedies provision’, s 39 (Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [214] (Weinberg JA)). See 3.3. Proceedings for breach of the Charter (s 39) for further discussion.
  7. Section 38(1) was modelled on s 6 of the Human Rights Act 1996 (UK) (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 27).

    Procedural limb: proper consideration of Charter rights

  8. A public authority must give proper consideration to relevant Charter rights when making a decision (s 38(1)). This is known as the ‘procedural’ limb of s 38(1), as opposed to the ‘substantive’ limb, which requires public authorities to act compatibly with Charter rights (see, eg, Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [245] (Tate JA)). It is an obligation that must be undertaken before the decision making power has been exercised; giving consideration to Charter rights after the decision has been made will not be sufficient (Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 [190]-[191] (‘Certain Children (No 1)’).
  9. Administrative decisions are the ‘lynchpin’ of administrative law, and are subject to judicial review by the Supreme Court, including on the ground of failure to take into account relevant considerations (see, eg, Justice Emilios Kyrou, ‘Obligations of Public Authorities under section 38 of the Victorian Charter of Human Rights and Responsibilities’ (2014) 2 Judicial College of Victoria Journal 77, 78).
  10. However, the word ‘proper’ implies that the procedural limb of s 38(1)is more stringent than the common law requirement of those involved in public administration to take into account relevant considerations (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [235], [275]–[276] (Tate JA); Certain Children (No 1) [2016] VSC 796 [183]-[184]).
  11. The test for proper consideration under s 38(1) was set out in Castles v Secretary of the Department of Justice (2010) 28 VR 141; [2010] VSC 310. Proper consideration under s 38(1) involves:

    understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.

    While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified (Castles v Secretary of the Department of Justice (2010) 28 VR 141; [2010] VSC 310 [185]–[186] (‘Castles’); cited in Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [279]–[280] (Tate JA), [535] (Santamaria JA); PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [311]; De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647; [2016] VSC 111 [139]; Certain Children (No 1) [2016] VSC 796 [186]; Certain Children (No 2) [2017] VSC 251 [221]; see also Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [217], [221]–[222] (Warren CJ); Giotopoulos v Director of Housing [2011] VSC 20 [90]; Minogue v Dougherty [2017] VSC 724 [90]).

  12. The requirements of the procedural limb of s 38(1) can be summarised as follows. The decision maker must:
    1. understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision;
    2. seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person;
    3. identify the countervailing interests or obligations; and
    4. balance competing private and public interests as part of the exercise of justification (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [220]–[224] (Warren CJ), [288]–[289] (Tate JA), [538], [559] (Santamaria JA)).
  13. Regarding the first and second steps above, s 38(1) obliges a public authority to give proper consideration to whichever Charter rights may be relevant in the circumstances. There is no need for the statute conferring the decision-making power on the public authority to refer to any specific rights or to independently require their consideration. Rather:

    the procedural limb of s 38(1) operates as a constraint on the exercise of public power; it constrains the power a public authority exercises by requiring that, in the exercise of the power, the public authority give proper consideration to the relevant human rights that arise in the circumstances of the case (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [318]–[322] (Tate JA), see also [227] (Warren CJ), [536] (Santamaria JA)).

  14. The decision-maker need not identify the section under which the right is protected, or ‘explain any content of any right by reference to legal principles or jurisprudence’. Rather, the nature and extent of the effect of the decision on a person’s rights must be identified in general terms (De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647; [2016] VSC 111 [141]). A court reviewing the obligation to give consideration will consider the substance of the consideration rather than its form (Certain Children (No 1) [2016] VSC 796 [189]).
  15. The standard of consideration required will differ depending on the circumstances, including the identity of the decision maker, the rights affected, and the vulnerability of the rights-holders. For example, in Certain Children (No 2), John Dixon J considered that the standard of consideration required to discharge the s 38(1) obligation would have been much higher than the standard required of the decision maker in Castles. In Certain Children (No 2), the decision maker was a Minister who had the benefit of an earlier, directly relevant, Supreme Court decision and a Charter compatibility briefing prepared by the Victorian Government Solicitor’s Office, and the rights-holders were child detainees 'highly vulnerable by reason of their age and ... their incarceration' (Certain Children (No 2) [2017] VSC 251 [203], [491]-[492]).
  16. The obligation extends to considering how the decision will operate in practice and whether any guidelines designed to ameliorate the effect of a decision are capable of operating effectively. For example, in Certain Children (No 2) [2017] VSC 251, John Dixon J considered a decision about when OC spray could be used inside a prison. He explained that ‘proper consideration’ required considering the circumstances in which OC spray would be used, including its potential use in a manner contrary to any guidance, for example, as an instinctive response to an escalating situation. Also relevant was the potential for other prisoners (as persons deprived of liberty for the purpose of s 22(1)), who were not involved in an escalating situation, to be affected by the spray (Certain Children (No 2) [2017] VSC 251 [525]-[526]).
  17. The obligation to give proper consideration to Charter rights is not suspended when decisions are made in an emergency or other extreme circumstances. Such circumstances increase the risk that Charter rights will be overlooked, and nothing in the language of s 38(1) indicates that it does not apply in such situations (Certain Children (No 1) [2016] VSC 796 [187]-[188]).

    Proportionality analysis: s 7(2)

  18. Proper consideration of Charter rights, under the third and fourth steps above, will include the exercise of identifying and comparing rights and obligations to determine whether any limit placed on the applicant’s rights could be justified under s 7(2) of the Charter (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [284]–[285] (Tate JA), see also [146] (Warren CJ), [620] (Santamaria JA)).
  19. Section 7(2) of the Charter, the justification or proportionality provision, comes into play when Charter rights are limited. Section 7(2) states:

     (2) 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.

  20. The countervailing interests or obligations relevant to the justification analysis will include those made relevant by the legislation giving the public authority its power (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [536] (Santamaria JA)).

    Substantive limb: acts compatible with Charter rights

  21. The ‘substantive limb’ of s 38(1) requires public authorities to act compatibly with Charter rights. It is stated in the negative: ‘it is unlawful for a public authority to act in a way that is incompatible with a human right’ (s 38(1)).
  22. In the Charter, ‘act’ includes a failure to act and a proposal to act (s 3(1)).
  23. Courts have developed the following suggested approach for establishing whether there has been a breach of Charter rights under the substantive limb of s 38(1):
  24. The above steps establish whether the conduct of the relevant public authority was ‘compatible’ with Charter rights under s 38(1). If any limitations on Charter rights were not justified in terms of s 7(2), the act or decision would be incompatible with Charter rights, and so breach s 38(1) and be unlawful (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR; [2011] VSC 327 [306], [309] – [312]; Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [70], [135]; Certain Children (No 1) [2016] VSC 796 [206]; Baker v DPP [2017] VSCA 58 [57-58]).
  25. In Patrick’s Case, Bell J found that judicial review for unlawfulness under s 38(1) did not amount to merits review. However, because it includes a proportionality analysis under s 7(2), it is a more intensive review than traditional judicial review for unlawfulness and therefore:

    draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests than traditional judicial review (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [315]–[317]; Certain Children (No 2) [2017] VSC 251 [212]).

  26. In the same way as the procedural limb, the level of review required may differ depending on the circumstances. In Certain Children (No 2), John Dixon J suggested that

    [p]recisely what ‘intensity’ [of review] is required and what that actually means is likely to depend on the particular circumstances before the court that will vary from case to case. Context and circumstances may include the experience and expertise of the primary decision-maker, the information that a decision-maker acts on and the extent to which a decision is supported and objectively justified by a transparent process of reasoning. A detailed brief that informed the decision or detailed reasons from the decision maker may be persuasive. (Certain Children (No 2) [2017] VSC 251 [217])

  27. In his Honour’s view, in relation to the substantive limb of s 38(1), a limited degree of deference to the decision-maker is required. This may be in terms of fact-finding, discretionary considerations, or in balancing judgments. However, the court must perform its own s 7(2) analysis, to reach an objective decision on whether the limitation is proportionate (Certain Children (No 2) [2017] VSC 251 [218]).
  28. If a reviewing court determines that a Charter right has been limited by a public authority’s actions, the onus is then on the justifying party to demonstrate that the limitation is demonstrably justified in the terms of s 7(2) (Certain Children (No 2) [2017] VSC 251 [175], [200]). For further discussion, see 5. Limitations on Charter Rights.

    Cumulative operation of procedural and substantive limbs

  29. Although s 38(1) refers to both acts and decisions of public authorities, it is not always clear which of the two is relevant: decisions are often implemented by acts, and acts involve the decision to act.
  30. Although appellate courts have not decided the point, the balance of current authority suggests the procedural and substantive limbs are cumulative, rather than mutually exclusive. This means that s 38(1) requires a public authority to give proper consideration to any Charter rights that are engaged when making a decision, and reach a decision that is substantively compatible with Charter rights. If only one aspect of s 38(1) is fulfilled, and the other is not, the public authority would not have met the s 38(1) obligation and there will have been Charter unlawfulness (Certain Children (No 2) [2017] VSC 251 [177]; see also PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [312]; Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 [70]; Minogue v Dougherty [2017] VSC 724 [74]).
  31. For example, in Certain Children (No 2), John Dixon J found that even if the decision maker’s interference with rights was demonstrably justified, the failure to give proper consideration to Charter rights in the decision making process meant that the decision maker acted unlawfully. His Honour explained:

    This is a matter of real practical significance even if the decision that was made involved a justifiable interference with rights, because if rights had been properly considered a different decision might have been made. If this were not so, the obligation to give proper consideration would be negated such that its utility would be diminished or void. The requirement for a public authority to give proper consideration to human rights must be given work to do. (Certain Children (No 2) [2017] VSC 251 [226])

  32. However, appellate courts have not directly considered this issue. It remains possible that s 38(1) requires the conduct in question to be categorised discretely as either an act or a decision, so that only the relevant corresponding limb of s 38(1) applies (Justice Emilios Kyrou, ‘Obligations of Public Authorities under section 38 of the Victorian Charter of Human Rights and Responsibilities’ (2014) 2 Judicial College of Victoria Journal 77, 78).

    ‘Roadmap’ for assessing s 38 compatibility

  33. In Minogue v Dougherty [2017] VSC 724, at [74] John Dixon J endorsed the ‘roadmap’ that VEOHRC had identified in Certain Children (No 2) for assessing s 38 incompatibility. A court should approach its task by considering:

    (a) is any human right relevant to the decision or action that a public authority has made, taken, proposed to take or failed to take? (the relevance or engagement question);

    (b) if so, has the public authority done or failed to do anything that limits that right? (the limitation question);

    (c) if so, is that limit under law reasonable and is it demonstrably justified having regard to the matters set out in s 7(2) of the Charter? (the proportionality or justification question);

    (d) even if the limit is proportionate, if the public authority has made a decision, did it give proper consideration to the right? (the proper consideration question);

    (e) was the act or decision made under an Act or instrument that gave the public authority no discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted under s 32 of the Charter in a way that is consistent with the protected right (the inevitable infringement question).

  34. This ‘roadmap’ reflects the cumulative approach to the s 38 obligations, where both the procedural and substantive limbs of s 38 must be satisfied. As discussed above, while the balance of current authority supports the cumulative approach, rather than the mutually exclusive approach, appellate courts have not yet determined this point.

    Breach of s 38(1): jurisdictional or non-jurisdictional error?

  35. While breach of s 38(1) is an error of law, it is an open question as to whether it is jurisdictional or non-jurisdictional error (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [378] (Tate JA), [600] (Santamaria JA); Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [49] (Warren CJ), [214], [271] (Weinberg JA); cf Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [145] (Warren CJ)).
  36. Jurisdictional error is a species of error of law. When a court finds jurisdictional error in relation to administrative conduct, the usual consequence is that the relevant conduct is invalid. There is no bright line distinction between what does and does not amount to jurisdictional error, but the general rule is that jurisdictional error occurs where the ‘decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do’ (Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 [56], [66] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 [163]).
  37. The distinction between jurisdictional and non-jurisdictional error is important, not only because jurisdictional error renders the relevant conduct invalid, but because the Supreme Court’s power to review administrative conduct for jurisdictional error cannot be ousted by the Victorian Parliament through a privative clause (Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1[55], [100](French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Aronson and Groves, Judicial Review of Administrative Action (5 ed, Thomson Reuters, 2013), 17-18).
  38. So, if s 38(1) unlawfulness necessarily amounts to jurisdictional error, the Victorian Parliament will not have the power to oust judicial review for a breach of s 38(1).
  39. Although the question was left open by the majority of the Court of Appeal in Bare v IBAC, Warren CJ held that a breach of s 38(1) did not necessarily amount to jurisdictional error. Warren CJ applied the Project Blue Sky test for breach of a statutory requirement, which is to ask ‘whether it was a purpose of the legislation that an act done in breach of the provision should be invalid’ (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [140], [145] (Warren CJ), see also [622]–[626] (Santamaria JA), citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 [93]).
  40. Project Blue Sky refers to two factors that assist in applying the test. These are:
  41. Warren CJ found that it is not the purpose of s 38(1) or of the Charter generally to invalidate acts inconsistent with it. In part, that was because of the impact that would have on government operations, and because s 38(1) does not have the requisite rule-like quality for its breach to amount to jurisdictional error. The various factors in the s 7(2) proportionality provision, which is relevant to s 38(1) compliance, and the various exceptions to s 38(1) contained in ss 38(2)–(4), render it too imprecise to pass this test (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [146], [149], [151] (Warren CJ); see also Santamaria JA at [620]).
  42. A decision made in breach of s 38(1) is ‘unlawful’, irrespective of whether it is invalid for jurisdictional error. It could be quashed, if it appears on the record, or the remedies of declaration and injunction may be available to a plaintiff with standing. The provision would therefore retain its normative force, even if its breach did not necessarily result in jurisdictional error and invalidity (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [150]–[152] (Warren CJ), [624] Santamaria JA).
  43. While not deciding this question, Tate and Santamaria JJA also identified some concerns with the characterisation of s 38(1) unlawfulness as jurisdictional error. Section 38(1) deems Charter rights to be relevant considerations, and stipulates that a breach results in ‘unlawfulness’. This may suggest an intention by Parliament that a failure to comply with s 38(1)is material to the decision arrived at, resulting in jurisdictional error. On the other hand, the Charter does not confer power on public authorities to act or make decisions. Section 38(1) may therefore regulate the performance of functions conferred elsewhere, rather than impose essential requirements on their exercise, per the Project Blue Sky test. If this is the case, the breach would not exceed the power of the administrator and would therefore not result in invalidity, even though it would be ‘unlawful’ (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [386]–[389] (Tate JA), [617]-[619] (Santamaria JA)).
  44. Another observation relates to the interaction between s 38(1) and the override provision in s 31 of the Charter. If a s 38(1) breach gave rise to jurisdictional error, Parliament could not enact an ouster clause precluding judicial review of contravention of s 38(1), but it could make an override declaration with respect to the statutory power enabling the act or decision so as to exclude the requirements of the Charter – an anomalous position (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [379] (Tate JA)).
  45. The Court recognised that the concept of ‘unlawfulness’ should be treated the same way across both ss 38 and 39. It would be hard to treat ‘unlawful’ under s 38(1) as giving rise to jurisdictional error – meaning that the conduct or decision was invalid - while at the same time not warranting relief under s 39 unless some other ground of unlawfulness could be found (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [150] (Warren CJ) [392] (Tate JA), [625] (Santamaria JA)). Section 39 is discussed in more detail below, see 3.3. Proceedings for breach of the Charter (s 39).

    The public authority could not reasonably have acted or decided differently (s 38(2))

  46. Section 38(2) states:

    Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

    Example

    Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

  47. The exception under s 38(2) allows for circumstances where the power conferred on the public authority clearly could not be exercised consistently with s 38(1). That is, the exception applies where a conflict of duties arises between s 38(1) and a statute that requires or authorises a public authority to act incompatibly with, or not to consider, a Charter right. In that case, the exception reflects the fact that legislation that is incompatible with Charter rights is nevertheless valid and enforceable (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [325]–[326] (Tate JA)).
  48. For example, the Supreme Court in Kaba found that s 59(1) of the Road Safety Act authorised police to randomly stop vehicles and request the driver’s name, address and licence. These acts necessarily curtailed the driver’s rights to freedom of movement (s 12), privacy (s 13) and liberty (s 21). However, they were authorised by the legislation and the police could not reasonably have acted differently in performing them, so the exception in s 38(2) applied (DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [447], see also Caserta v Director of Public Transport [2011] VCAT 98).
  49. However, had the police interfered with Charter rights ‘beyond those involved as an ordinary and natural consequence of the due exercise of the power concerned’, the exception in s 38(2) would not have applied (DPP v Kaba (2014) 44 VR 526; [2014] VSC 52 [448]).

    The meaning of ‘reasonably’

  50. A provision may not authorise or require a specific action, as in the Kaba example, but rather authorise some discretion on the part of a public authority in respect of their acts or decisions taken under the provision. In those circumstances, the relevant test in s 38(2) is whether the public authority, in exercising the relevant discretion, could reasonably have acted differently or made a different decision such that s 38(1) was not infringed.
  51. It is a presumption of the common law that a statutory discretion must be exercised reasonably. In respect of that presumption, it has been held that the standard of reasonableness is that indicated by the statute in question, as a matter of construction (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 [63], [67] (Hayne, Kiefel and Bell JJ)).
  52. It seems that the same applies in respect of s 38(2), particularly given the requirements of the Charter’s interpretative provision in s 32(1). It is therefore unlikely that it could be ‘reasonable’ to limit Charter rights if the discretion in question allowed for any alternative decision or act that did not limit them, that is, that complied with s 38(1). This is the standard of reasonableness that Warren CJ seems to endorse in Bare v IBAC:

    [W]hen a public authority is called upon to exercise a statutory power it must do two things: it must first construe the power, and then exercise that power. In the process of construction there is no doubt that s 32 has work to do in ensuring that the relevant provision, as far as possible, is construed in a way that is compatible with human rights. In some instances the only possible way to construe the provision would require the public authority to act in breach of s 38(1), hence the exception in s 38(2). However, in most cases, as in this one, once the construction process has occurred s 38(1) will act as a constraint on the exercise of the power to ensure that proper consideration is given to human rights and that the authority does not act incompatibly with human rights (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [227] (Warren CJ)).

  53. Additionally, the Supreme Court has found that the exemption in s 38(2) will not be relevant where a number of possible courses of action are open. That is because s 38(1) limits the options to those demonstrably justified according to the criteria in s 7(2) (PJB v Melbourne Health (2011) 39 VR;[2011] VSC 327 [230]).

    Acts or decisions of a private nature (s 38(3))

  54. Section 38(1) ‘does not apply to an act or a decision of a private nature’ (s 38(3)).
  55. The Charter does not define the phrase ‘of a private nature’. It is likely meant to be contrasted with functions ‘of a public nature’, an expression used to assist with the definition of public authorities in s 4.
  56. Section 4(2) sets out factors that may be relevant to whether a particular function is ‘of a public nature’. The converse of the s 4(2) factors may therefore be relevant to whether a particular act or decision is ‘of a private nature’. If that is correct, the following may be of some relevance to determining whether an act or decision is private in nature:
  57. Certain entities are public authorities for Charter purposes only when they are exercising functions of a public nature (s 4(1)(c)), whereas other entities are always public authorities under the Charter (s 4(1)(a)–(b), (d)–(g)). These are known as ‘functional’ and ‘core’ entities respectively. See 3.1. Public authorities.
  58. The s 38(3) exception is more relevant to core public authorities, who are always public authorities irrespective of the nature of the function they are performing. The exception serves to limit the obligations of core public authorities to when they are acting or making decisions of a public nature.
  59. Functional public authorities, however, are public authorities only when they are exercising functions of a public nature. When they are acting or making a decision of a private nature, it is unlikely that they would fall within the definition of public authorities, and therefore unlikely they would be bound by s 38(1), in respect of those acts and/or decisions.
  60. For example, the decision of a private security firm providing services to both public and private organisations may be a public authority in respect of its services to public organisations. However, if the firm was to require a manager in its private unit to relocate to Perth, that would likely fall within its private functions so that it was not a public authority for those purposes. Since it would not be a public authority in those circumstances, neither the obligations in s 38(1) nor the exception in s 38(3) would be relevant.

    Religious bodies (ss 38(4)–(5))

  61. Section 38(4) excludes the operation of s 38(1) when compliance with that section would impede or prevent a religious body from conforming with its own doctrines, beliefs or principles. It applies where a public authority is a religious body, or when it interacts with a religious body, for example, by funding or licensing the functions of that body (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 28).
  62. Sections 38(4)–(5) state the following:

    (4) Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

    (5) In this section "religious body" means—

    (a) a body established for a religious purpose; or

    (b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.

  63. Section 81 of the Equal Opportunity Act 2010 uses the same definition of religious bodies, which are exempt by s 82 of that Act from its prohibitions on discrimination.
  64. The Equal Opportunity Act prohibitions on discrimination apply more widely than the Charter’s s 38(1) obligations, which are binding only on public authorities. Accordingly, the Equal Opportunity Act also includes exceptions for religious schools and on the basis of personal religious belief (Equal Opportunity Act 2010, ss 83-84). The exceptions also apply in different circumstances: if the discriminatory conduct of the religious body conforms with the doctrines, beliefs or principles of the relevant religion, or is reasonably necessary to avoid injury to the religious sensitivities of adherents of that religion (Equal Opportunity Act 2010, s 82).
  65. Despite these differences, some guidance on the religious body exception in the Equal Opportunity Act 2010, and its predecessor the Equal Opportunity Act 1995, may assist the courts in applying the definition in s 38(5) of the Charter.
  66. In the context of the Equal Opportunity Act 1995, the phrase ‘established for a religious purpose’ was interpreted as not relating to the purpose of the entity when it was actually established. Rather, it requires an examination of the character and purpose of the activities at the time of the alleged conduct, irrespective of whether it was originally established for a religious purpose (Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256; [2014] VSCA 75 [155], [223]–[224] (Maxwell P), [361] (Neave JA), [441] (Redlich JA)).For s 38(4) of the Charter, that would likely equate to the time the public authority acted or made its decision.
  67. In Christian Youth Camps, the entity in question was found not to be a religious body under the Equal Opportunity Act 1995. Christian Youth Camps, although it conducted Christian camps at its resort, also conducted secular school camps, corporate camps and other groups with no explicit religious connection and did not require any religious content or observance from these groups. The activities were not ancillary to or supportive of the entity’s religious purposes, but were the very purposes for which it existed. Its purpose or activity was therefore not religious for the purposes of the definition (Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256; [2014] VSCA 75, [216]–[218], [245]–[246] (Maxwell P)[361] (Neave JA), [441] (Redlich JA)).
  68. The provisions in the Charter and the Equal Opportunity Act both require the courts to analyse whether the religious body’s conduct conforms with its doctrines, beliefs or principles. To satisfy this requirement, the Court in Christian Youth Camps found that since the exception allowed for conduct that would otherwise be unlawful (as does the Charter exception in s 38(4)) it would be necessary to show that the religious doctrine ‘requires, obliges or dictates that the person act in a particular way when confronted by the [relevant] circumstances’ (emphasis added) (Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256; [2014] VSCA 75, [286] – [287] (Maxwell P), citing Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613 [315]).
  69. In the Equal Opportunity Act, the aim of the exceptions is to strike a balance between the rights of equal opportunity and non-discrimination and the right to religious freedom (see, eg, Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256; [2014] VSCA 75, [155] (Maxwell P)).
  70. The Charter includes the right to freedom of thought, conscience, religion and belief (s 14) and a general limitations or proportionality analysis in s 7(2), which allows for the balancing of competing rights against one another. A proportionality analysis, using the factors set out in s 7(2), is part of the process of determining whether s 38(1) has been breached. However, as an exception to s 38(1), s 38(4) means that public authorities do not need to engage in proportionality analyses or balancing exercises when acting or making a decision that would impede or prevent a religious body from acting in accordance with its beliefs.

Last updated: 1 September 2017

See Also

3. The Charter’s Effect on Public Authorities

3.1. Public authorities

3.3. Proceedings for breach of the Charter (s 39)