Charter Rights Should be Construed Broadly and by Reference to International and Comparative Human Rights Jurisprudence

  Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010)

The Victorian Supreme Court has affirmed the importance of a broad approach to the construction of human rights in the Charter, including appropriate reliance on international human rights law and comparative jurisprudence.

Facts

This case concerned the accreditation of XFJ to drive a taxi.

In 1990, XFJ killed his wife and attempted suicide after experiencing profound trauma, but was found not guilty by reason of insanity.  He was detained in custody at the Governor’s pleasure and released into the community in 1998.  For the last 14 years, XFJ has been ‘symptom free’.  He was described as ‘intelligent and insightful’, and no more likely than any other member of the community to re-offend.  He had undertaken charity work with the elderly and people experiencing homelessness, but required flexible paid employment to enable him to care for his 19 month old son with leukaemia.  He sought a taxi licence for this purpose.

The Director of Public Transport appealed a decision of VCAT to accredit XFJ as a suitable person to drive a taxi.  The Victorian Equal Opportunity and Human Rights Commission intervened in the proceeding to make submissions about the relevance of the Charter.

Decision

Justice Ross dismissed the Director’s appeal and affirmed XFJ’s suitability for accreditation.  The case was not decided on Charter grounds.  Justice Ross did, however, make a number of observations about the Charter in obiter, including that:

  • Section 32(1) of the Charter is a statutory directive which requires ‘exploring all possible interpretations of the provisions in question and adopting that interpretation which least infringes Charter rights’ (see also R v Momcilovic [2010] VSCA 50).
  • The right to equality and non-discrimination under s 8 of the Charter, ‘like other rights protected by the Charter, should be construed broadly’ (see also DAS v VEOHRC [2009] VSC 381).
  • ‘There is considerable support in the international jurisprudence for the adoption of a flexible approach to the question of the appropriate comparator in the context of the equality right’ and a ‘different approach to disability discrimination’ than that currently prevailing in Australia under the Disability Discrimination Act 1992 (Cth) (see, eg, Novia Scotia (Workers’ Compensation Board) v Martin [2003] 2 SCR 504).
  • There was ‘considerable force in the Commission’s submissions’ that ‘interpretation of the Charter requires consideration of general human rights standards and jurisprudence, not simply the application of domestic cases concerning different statutory regimes’.

Read together with the decision of Emerton J in Castles v Secretary to the Department of Justice [2010] VSC 310 (which stated that consideration of international jurisprudence ‘is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in the international context), the decision of Kaye J in WBM v Chief Commissioner of Police [2010] VSC 219, in which his Honour eschewed reliance upon international jurisprudence in interpreting the right to privacy under the Charter, is increasingly isolated and anomalous.

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/319.html.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

MichelleBennettHuman Rights Law & Institutions