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2.5. Direct application of Charter rights to courts

  1. Courts are public authorities, and therefore bound by s 38 of the Charter, when they are acting in an administrative capacity (s 4(1)(j)). For more information, see 2.4. Courts and tribunals as public authorities.
  2. However, regardless of their role as public authorities, s 6(2)(b) states that the Charter applies to ‘courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3’. For Charter purposes, the word function also includes ‘power, authority and duty’ (s 3(2)(a)).
  3. Division 3 of Part 3 includes statutory interpretation and declarations of inconsistent interpretation. Part 2 sets out the 20 Charter rights and the general limitations provision. Section 6(2)(b), by referring to courts’ functions under Part 2 as distinct from their interpretation and declaration functions, seems to directly apply Charter rights to courts and tribunals.
  4. The direct application of Charter rights to courts and tribunals appears to contrast with ss 4 and 38, which state that courts and tribunals are bound to act compatibly with Charter rights only when acting in an administrative capacity:

    Difficulties arise in reconciling s4(1)(j), which excludes courts acting in a judicial capacity from the definition of public authorities, and s 6(2)(b) which says that the Charter applies to courts and tribunals to the extent that they have functions under Part 2 and Division 3 of Part 3. … Given that s 6(2)(b) refers to both the interpretive functions of courts and tribunals in Part 3, Division 3, and to their functions under Part 2, it appears that that s 6(2)(b) implicitly reads down s 4 (1)(j), so that Part 2 applies directly to courts and tribunals (De Simone v Bevnol Constructions (2009) 25 VR 237; [2009] VSCA 199 [50], [52]).

  5. Three constructions of the functions of courts under Part 2 referred to in s 6(2)(b) have been identified:

    (1) the broad construction, whereby the function of courts is to enforce directly any and all of the rights enacted in Part 2;

    (2) the intermediate construction, whereby the function is to enforce directly only those rights enacted in Part 2 that relate to court proceedings;

    (3) the narrow construction, whereby the function of courts is to enforce directly only those rights that are explicitly and exclusively addressed to the courts (Victoria Police Toll Enforcement v Taha (2013) 49 VR 1; [2013] VSCA 37 [246] (Tate JA); see also Secretary to the Department of Human Services v Sanding (2011) 36 VR 221; [2011] VSC 42 [165]; Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [241]; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; [2017] VSC 61 [32]).

  6. Of the three, the intermediate construction has generally been adopted by courts.
  7. Under the intermediate construction, courts’ functions under Part 2 are those which involve ‘applying or enforcing the Charter rights that relate to court and tribunal proceedings’ (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [250]; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; [2017] VSC 61 [37]). Section 6(2)(b) therefore requires a court or tribunal directly to apply or enforce those rights (Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; [2017] VSC 61 [32]).
  8. The courts ‘functions’ in a given case may be identified through either a ‘list of rights’ approach, whereby the relevant functions are derived from the nature of the applicable rights, or through a ‘functional approach’, focusing on the functions performed by a court or tribunal in the relevant legal proceedings. Bell J has suggested that the functional approach is more appropriate, such that ‘when applying s 6(2)(b), it is always necessary to examine whether, in the given case, the court or tribunal is exercising functions involving the application of human rights that “relate to court or tribunal proceedings”’ (Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; [2017] VSC 61 [37], [39] (citations omitted).
  9. As a result of adopting the intermediate construction, and the functional approach, courts and tribunals are directly bound to act compatibly with Charter rights that relate to a court or tribunal proceeding even when they are acting in a judicial capacity.
  10. For example, Tate JA found that a magistrate was under a direct obligation, by reason of s 6(2)(b), to give effect to the right to a fair hearing under s 24(1) in determining whether orders alternative to imprisonment should be made under s 160 of the Infringements Act 2006. The magistrate therefore had a duty to enquire about special or exceptional circumstances in making that determination (Victoria Police Toll Enforcement v Taha (2013) 49 VR 1; [2013] VSCA 37 [247], [252] (Tate JA), [259] (Osborn JA); Bogdanovic v Magistrates’ Court of Victoria [2017] VSC 696 [19]).
  11. To date, the intermediate construction has been applied in respect of:
  12. For more information on how the functions of courts and tribunals have engaged particular Charter rights, see the material on each right in Chapter 6. Charter rights.
  13. Bell J has suggested that additional rights could be engaged, including ss 10(b), 21(5)(c), 21(6), 21(7), 21(8), 26 and 27 of the Charter (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [253]), though this list is not intended to be comprehensive or limiting (Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; [2017] VSC 61 [38]).

Last updated: 10 October 2018

See Also

2. The Charter’s Effect on Courts

2.1. Guide to statutory interpretation under s 32(1)

2.2. Statutory interpretation (s 32)

2.3. Declarations of inconsistent interpretation

2.4. Courts and tribunals as public authorities