The s 38 obligations on public authorities should be read with s 39, the only other provision in Division 4 of Part 3 of the Charter ‘Obligations on public authorities’.
Section 39 does not create an independent cause of action for breach of the Charter, but it provides for relief or remedy in certain circumstances. Section 39(1) states:
39 Legal proceedings
(1) 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.
The Consultation Committee recommended that remedies already available under existing Victorian law should also be available for breaches of the Charter (Rights, Responsibilities and Respect: The Report of the Victorian Human Rights Consultation Committee, 2006, 114).
The operation of s 39(1) is conditional and supplementary. It is conditional on whether a person can seek relief ‘in respect of an act or decision of a public authority on the ground that the act or decision was unlawful’ independently of the Charter. If so, the person can seek the same relief or remedy on a supplementary Charter ground (Director of Housing v Sudi (2011) 33 VR 559;  VSCA 266  (Maxwell P), citing PJB v Melbourne Health (2011) 39 VR;  VSC 327 –).
The condition appears to be satisfied when unlawfulness on the part of a public authority is directly in issue, because a rule or law attaches consequences to such unlawfulness. For example, the condition would be satisfied when a breach of s 38(1) supplies the unlawfulness element required for an existing cause of action or interlocutory proceeding.
The operation of s 39(1) to certain administrative law proceedings for judicial review remains an open question: Can the Charter supply the sole ground of unlawfulness with respect to administrative conduct of a kind that is reviewable? Alternatively, is breach of the Charter as a ground of review available only when it supplements another unlawfulness ground on which the litigant is relying in the specific circumstances of the case?
The precise scope and application of s 39(1) has been the subject of some criticism and controversy, and it remains unclear. As a result, the following material is provided as a guide only and should be used with caution.
Unlike most Charter provisions, s 39 has no equivalent in the foreign or international human rights instruments on which the Charter was based. Commentary suggests that it may have been enacted as a compromise, taking into account concerns that the Charter would vastly increase litigation on one hand, and concerns that it would have no effect without justiciable remedies, on the other (see, eg, Director of Housing v Sudi (2011) 33 VR 559;  VSCA 266 – (Weinberg JA); Jeremy Gans, ‘The Charter’s Irremediable Remedies Provision’ (2009) 33 Melbourne University Law Review 105).
Unlawfulness as an element in an existing cause of action
When unlawfulness is directly in issue because of the nature of the proceedings, for example, as an element required to obtain the relief sought, it appears the condition in s 39(1) is met. The cause of action already exists independently of the Charter, so that the relief or remedy sought under it is sought ‘otherwise than because of [the] Charter’. Additionally, since unlawfulness is an element in that cause of action, any relief sought under it would be ‘on the ground that the act or decision was unlawful’.
Therefore, s 39(1) allows a breach of s 38(1) to supply the unlawfulness element in any cause of action that requires it (Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (LexisNexis, 2008) 126; see also Director of Housing v Sudi (2011) 33 VR 559;  VSCA 266  (Weinberg JA)).
Evans and Evans give the following examples of existing causes of actions or proceedings which they say ‘may now have a wider scope because the unlawful conduct that is required to be proved in each of them has been expanded to include violation of Charter rights’:
The courts’ discretion to exclude evidence obtained as a result of unlawful or improper conduct
The tort of misfeasance in public office
The tort of false imprisonment
Industrial torts, such as for interference with a contract (Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (LexisNexis, 2008) 126-127).
For example, courts have a discretion to exclude evidence when that evidence is obtained as a result of unlawful or improper conduct. When a public authority, like the police, acts incompatibly with Charter rights, they are acting unlawfully in terms of s 38(1). So if the police acted incompatibly with Charter rights in obtaining evidence, the evidence would have been obtained as a result of unlawful conduct and the discretion to exclude the evidence is enlivened.
This approach to s 39 was adopted in Slattery, when VCAT found that it could consider whether s 38(1) had been breached because the unlawfulness of the Council’s decision to maintain the ban on Mr Slattery entering any Council premises was the issue before VCAT in the proceedings. VCAT was dealing directly with the question of whether the Council’s act or decision was lawful in order to determine whether it was in breach of the Equal Opportunity Act 2010 (Slattery v Manningham City Council  VCAT 1869 –).
Administrative law remedies
Section 39(1) also plays a role in expanding existing administrative law remedies, such that a breach of the Charter can be a ground for judicial review in certain circumstances. However, the availability of judicial review will depend on whether the condition in s 39(1) is met, that is whether, aside from the Charter, relief or remedy in respect of an act or decision of a public authority could have been sought on the ground that the act or decision was unlawful.
Commentators and the courts have identified two competing interpretations to the condition in s 39. They are known as the ‘factual availability’ and ‘abstract availability’ interpretations respectively. These interpretations can be explained as follows:
Taking as an example a case where the non-Charter relief or remedy is based on judicial review, does s 39 require that the plaintiff must in fact have a non-Charter ground for seeking judicial review, or does it merely require that the act or decision in question is amenable to judicial review in the abstract, that is, without regard to the facts of the particular case? (Bare v IBAC (2015) 48 VR 129;  VSCA 197  (Tate JA), citing Mark Moshinsky QC, ‘Bringing Legal Proceedings Against Public Authorities for Breach of the Charter of Human Rights and Responsibilities’(2014) 2 Judicial College of Victoria Journal 91, 96).
The ‘abstract availability’ approach can be equated with having standing to apply for judicial review of the administrative conduct in question. Therefore, although the Charter does not itself supply a free standing cause of action for judicial review, under the abstract approach, s 39(1) would, in effect, provide a direct right to a remedy for breach of the obligations the Charter places on public authorities.
‘Abstract’ availability appears to be analogous to the approach to s 39(1) described above in ‘Unlawfulness as an element in an existing cause of action’. The applicant would need to show all the other required elements of the relevant administrative law action, using existing rules and procedures, but the breach of s 38(1) would supply the unlawfulness ground of review (Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (LexisNexis, 2008) 134).
The factual availability approach, on the other hand, requires a traditional ground of administrative review to be relied on in the same legal proceedings before an additional Charter ground may also be raised. Under the factual approach, the traditional non-Charter ground must be a genuine one, that is, not susceptible to strike out, but it need not be finally determined or successful in order to meet the requirements of the s 39(1) condition (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373;  VSC 327 ; Director of Public Prosecutions v Debono  VSC 407 ; Goodev Common Equity Housing  VSC 585 –; Burgess v Director of Housing  VSC 648 ; Certain Children v Minister for Families and Children & Ors (No 2)  VSC 251 -).
The question of which of these approaches to the interaction of s 39(1) and judicial review is correct remains open (Bare v IBAC  VSCA 197  (Tate JA), see also –, –,  (Warren CJ)).
In Sudi, Maxwell P held that the condition in s 39(1) would be satisfied in an application for judicial review, whether at common law in accordance with Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 or under the Administrative Law Act 1978 (Director of Housing v Sudi (2011) 33 VR 559;  VSCA 266  (Maxwell P)). It was not clear, however, whether Maxwell P was referring to the abstract or the factual approach to the interpretation of s 39.
In Sabet v Medical Practitioners Board of Victoria, s 39 was available to the applicant because he sought relief in the nature of certiorari and an injunction, on the ground of denial of natural justice. He was therefore able to seek the same relief on the ground that the decision was unlawful under s 38 of the Charter (Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414;  VSC 346 ). The circumstances in Sabet are compatible with either the abstract or the factual interpretation of s 39(1).
Similarly, in Patrick’s Case, Bell J found that the condition for the operation of s 39(1) would be satisfied in judicial review proceedings, or in statutory appeals on questions of law, on grounds of Wednesbury unreasonableness, improper purpose or breach of the rules of natural justice, all of which would result in unlawfulness if successful (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373;  VSC 327 –; see also Goodev Common Equity Housing  VSC 585 –;Director of Public Prosecutions v Debono  VSC 407 –).
In Goode, the satisfaction of the condition appeared to turn on the tribunal’s jurisdiction to hear the matter, rather than whether any non-Charter ground of unlawfulness was actually determined or rejected (Goodev Common Equity Housing  VSC 585 –). This appears to support the abstract approach, but it does not preclude the factual approach.
In Debono, the s 39(1) condition was satisfied by the availability of a collateral challenge to the validity of an administrative act. The applicant had a right, in the context of a criminal proceeding, under s 199(1)(c) of the Criminal Procedure Act 2009 to seek relief or remedy, in the form of an order quashing the relevant charge. This right was independent of the Charter, and was found to satisfy the s 39(1) condition (Director of Public Prosecutions v Debono  VSC 407 –); cf Director of Housing v Sudi (2011) 33 VR 559;  VSCA 266  (Weinberg JA)).
Jurisdiction: judicial review
The Supreme Court is the only court that has judicial review jurisdiction, including with respect to the compliance of public authorities with s 38. Inferior courts have only ‘collateral review’ jurisdiction, that is, they may hear a challenge to the validity of an administrative decision that validly arises as an incident to the proceedings before that court.
Whether a lower court can undertake collateral review is a matter of construing the statutory provisions conferring jurisdiction on the court, and any privative clauses limiting the review of the administrative action. It will also depend on whether the review is for jurisdictional error (Director of Housing v Sudi (2011) 33 VR 559;  VSCA 266 – (Warren CJ),  (Maxwell P), – (Weinberg JA)). See ‘Breach of s 38(1): jurisdictional or non-jurisdictional error?’ in 3.2. Obligations on public authorities (s 38) above.
VCAT has no jurisdiction to undertake collateral review in respect of the s 38 obligations on public authorities when hearing an application by the Director of Housing for possession of public housing (Director of Housing v Sudi (2011) 33 VR 559;  VSCA 266  (Warren CJ), – (Maxwell P),  (Weinberg JA)). In Sudi, the Court of Appeal found that the Residential Tenancies Act 1997 did not confer any jurisdiction on VCAT to decide on the lawfulness of the Director’s decision to apply for possession. It also found that neither the Victorian Civil and Administrative Tribunal Act 1998 nor the Charter conferred any original review jurisdiction on VCAT.
Because VCAT did not have jurisdiction under the Residential Tenancies Act 1997 to hear a collateral challenge to the lawfulness of the Director’s decision, it could not hear such a challenge on Charter grounds either, since the condition in s 39(1) was not met. However, where an applicant is entitled to seek relief or remedy in VCAT on a non-Charter ground of unlawfulness, the condition will be met and VCAT will have jurisdiction to hear the s 38(1) matter (Goodev Common Equity Housing  VSC 585 –).
However, VCAT can also determine whether a public authority has complied with s 38 when that question arises directly in the course of proceedings. For example, where the unlawfulness of such conduct is an element of the cause of action in the proceeding or where illegality on the part of that public authority is a defence to the cause of action (Director of Housing v Sudi (2011) 33 VR 559;  VSCA 266  (Weinberg JA); see, eg, Slattery v Manningham City Council  VCAT 1869 –).
No effect on non-Charter rights to seek relief or remedy (s 39(2))
Section 39(2) preserves existing rights to seek judicial review or a declaration of unlawfulness on non-Charter grounds. The subsection states:
(2) [Section 39] does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—
(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.
Damages (ss 39(3) – (4))
Section 39(3) – (4) state:
(3) A person is not entitled to be awarded any damages because of a breach of this Charter.
(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.
The prohibition on awarding damages for breach of the Charter was intended to focus remedies on ‘practical outcomes rather than monetary compensation’ (Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1294 (Rob Hulls, Attorney-General)).
Section 39(3) is said to confirm Parliament’s intention that the Charter not introduce an independent cause of action or type of relief (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 29).
The relationship between s 39(3) and s 39(1), which allows any relief or remedy to be sought, has not been definitively determined. On one view, s 39(3) seems clear enough to preclude damages in any proceedings in which s 38(1) is relied on to establish unlawfulness on the part of a public authority, as an award of damages in those circumstances would be ‘because of a breach of [the] Charter’.
However, Evans and Evans have argued that s 39 should be interpreted as allowing a remedy for breach of Charter rights whenever possible. They argue that damages should be allowed for a breach of s 38(1), whenever that breach supplies the unlawfulness element in a pre-existing cause of action for which damages may be awarded, such as the tort of misfeasance in public office (Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (LexisNexis, 2008) 128 - 129).