VCAT Considers Disability Discrimination Under the Charter

Caserta v Director of Public Transport [2011] VCAT 98 (27 January 2011) Summary

The applicant sought a review of the decision of the Director of Transport (‘Director’) refusing to grant him an application for driver accreditation for a commercial passenger vehicle. The Victorian Civil and Administrative Tribunal (‘VCAT’) affirmed the Director’s decision on the basis it was not satisfied that the applicant had met the application requirements under the relevant Act.

Facts

The applicant, Mr Caserta, has a ‘lazy eye’ condition.  Despite his condition, he had driven trucks and held a heavy vehicle licence for many years. As part of the applicant’s job application to drive an airport shuttle bus, he was required to renew his license and obtain driver accreditation with the Department of Transport. To do this, the applicant was required to provide a certificate stating he had passed a prescribed visual acuteness test in accordance with the Transport (Passenger Vehicles) Regulations 2005 (‘the Regulations’). However, the applicant failed the test and accordingly could not provide the certificate.

The Director refused the applicant’s application on the grounds he had failed the prescribed test and was not sufficiently fit and healthy to attain accreditation. Consequently, the Director decided it was inappropriate to issue accreditation pursuant to the Transport (Compliance and Miscellaneous) Act 1983 (‘the Act’).

The matter was referred to mediation and issues arose as to whether:

• the Director’s decision could be reviewed on its merits;
• the Director could be required to set additional or different tests to that which was prescribed; and
• whether the Director’s actions were discriminatory within the meaning of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’)

As a result, the mediator referred the following questions of law for preliminary determination by VCAT:

• Was the Tribunal bound to affirm the Director’s decision?
• Did s 32 of the Charter affect the interpretation of the relevant provisions of the Act?
• Did s 38(1) of the Charter not apply by reason of s 38(2) of the Charter?

Decision

Was VCAT bound to affirm the Director’s decision?

VCAT found that the test administered to the applicant, which was a prerequisite to a successful application for driver accreditation, was prescribed by the Act and the Regulations. Rather than being a matter for the Director’s subjective /own? judgment, whether the applicant had passed the prescribed test was a matter of objective judgment. Consequently, it was not possible for the Director to find that the applicant had satisfied the application requirements when those requirements had not been complied with.

Although the Director had a discretion to require the certificate which stated that an applicant had passed the prescribed visual acuteness test, VCAT found this becomes a mandatory requirement once the director requests the certificate. VCAT also found that the Act required the applicant to pass the test, not just take the test. If the test is not passed, the Director cannot be satisfied that the Act has been complied with. VCAT concluded that the merits of the application do not come into play as the Director was required to refuse the application after the applicant failed to pass the prescribed test.

Did s 32 of the Charter affect the interpretation of the relevant provisions of the Act?

VCAT concluded that the three-step approach in considering whether a statutory provision infringes a Charter right, outlined in the case of R v Momcilovic [201] VSCA 50, did not require VCAT to consider whether the Director was required to consider alternative approaches to assessing the applicant’s application contrary to the express words of the Act. The Tribunal concluded that its role was to assess whether the Charter was breached. It held that the applicant’s right to enjoy his human rights without discrimination on the basis of an impairment was not breached in this case as several successful applications for driver accreditation had been made by applicants with varying degrees of the same impairment who had successfully passed the prescribed test. Furthermore, VCAT concluded that even if a human right had been breached, the provision of the test was reasonable and justified considering the Director’s duties towards the public that were enshrined in the Act.

Did s 38(1) of the Charter not apply by reason of s 38(2) of the Charter?

VCAT held that that the Director had not acted unlawfully under s 38(1) by failing to give proper consideration to relevant human rights as under s 38(2) of the Charter, the Director could not reasonably have acted differently or made a different decision because the relevant test was prescribed by the Act and the Regulations. Once the Director had determined that a visual test was appropriate, the Director could not have acted otherwise than to require the applicant to pass the prescribed test.

Relevance to the Victorian Charter

Under s 8(2) of the Charter, every person has the right to enjoy his or her rights under the Charter without discrimination. The Tribunal’s discussion on this point demonstrates how discrimination (as defined in the Equal Opportunity Act) interacts with this right under the Charter. In this case, the Tribunal found that the protected attribute was not of itself used as the basis for discrimination. This decision also indicates that pursuant to Momcilovic, Victorian courts and tribunals may be reluctant to read legislation in a way that obliges a public authority to consider or protect human rights when the language of that legislation is clear. Nonetheless, this decision was decided at the threshold level of whether VCAT was bound to affirm the Director’s decision. As the Act gave the Director no discretion after an applicant had failed to pass the prescribed test, VCAT had to affirm the Director’s decision.

The decision is at http:/www.austlii.edu.au/au/cases/vic/VCAT/2011/98.html

Meg O’Brien is a lawyer with Mallesons Stephen Jaques and Zara Durnan is a lawyer from Lander & Rogers. Both are on secondment to the Human Rights Law Resource Centre