VCAT Considers Relevance of Charter to Availability of Payments for Childcare from Transport Accident Commission

Michelle Dawson v Transport Accident Commission [2010] VCAT 796 (13 May 2010)

Facts

Ms Dawson was seriously injured in a car accident on 13 October 2005.  As a result of her injuries Ms Dawson received a number of therapies in accordance with her entitlements under s 60 of the Transport Accident Act 1986 (Vic), funded by the Transport Accident Commission (TAC).  After having children, Ms Dawson requested that the TAC pay for child care services to enable her to continue rehabilitation.  The TAC denied her request and Ms Dawson filed an application for review with VCAT.

Ms Dawson submitted that payment of childcare services was a necessary part of her rehabilitation and that such costs should be included in rehabilitation services or disability services awardable under s 60 of the Transport Accident Act.

Ms Dawson further submitted that the Transport Accident Commission failed to take the Charter of Human Rights and Responsibilities into account when making the decision not to grant child care expenses; in particular that the Commission failed to interpret the Act compatibly with human rights (as required by s 32 of the Charter) and failed to give proper consideration to or act compatibly with human rights (contrary to s 38 of the Charter).  She relied on the human rights protected by s 17 (protection of families and children), s 8 (equality before the law) and s 13 (right to privacy) of the Charter, contending that the refusal to fund child care ‘breached [the] right to enjoyment of family life’, that her personal integrity and quality of life was being ‘severely compromised’ and that the TAC’s interpretation of the Act breached her right to equality before the law by ‘failing to allow for individual circumstances to be taken into account’.

In response, the TAC contended, first, that s 38 of the Charter did not apply as child care expenses are either payable or not payable under s 60 of the Act as a matter of construction rather than at the consideration or discretion of the TAC and, second that, s 32 of the Charter could not modify the interpretation of s 60 of the Act as none of the rights relied upon by Ms Dawson were, in fact engaged.  According to the TAC, s 32 of the Charter only influences the construction of a statutory provision ‘to the extent that a right properly arises or is engaged in the circumstances’.  In the present case, the TAC argued that Ms Dawson was, in effect, seeking to invoke a right to child care, which is not a right protected by the Charter.

Decision

Statutory Interpretation

Deputy President Macnamara initially set out to ascertain the true meaning of the relevant paragraphs in the Transport Accident Act.  The relevant provisions were interpreted in favour of the TAC.  VCAT then considered whether s 32 of the Charter would change this interpretation.  VCAT found that no relevant human right was engaged in this case and hence that s 32 of the Charter did not change the interpretation of the relevant paragraphs in the TAA.  With respect, VCAT’s approach to the content and engagement of rights in this case was narrow and not ‘broad and generous’ as required by human rights jurisprudence (cf Kracke v Mental Health Review Board [2009] VCAT 646, [30]).

Having formed this view, VCAT concluded that s 38 of the Charter ‘adds nothing’ in the case.  According to VCAT, what was in issue was the proper construction of a statutory directive which did not afford any discretion, as such, and s 38(2) ‘would immunise the TAC from any liability under s 38’.  Section 38(2) provides that the obligation to act compatibly with human rights under s 38(1) does not apply if, ‘as a result of a result of a statutory provision…the public authority could not reasonably have acted differently’.

Right to equality before the law: s 8

Section 8 of the Charter provides that every person is equal before the law.  As to Ms Dawson’s claim that the TAC’s approach was arbitrary in its refusal to allow a flexible interpretation of ‘disability services’ and ‘rehabilitation services’, VCAT stated that using s 8 of the Charter as an ‘interpretation tool by s 32’ would not alter the conclusion.

Protection of families and children: s 17

Deputy President Macnamara examined the cases relied on by Ms Dawson as to an alleged breach of her right to the enjoyment of family life.  In J v London Borough of Enfield [2002] EWHC (Admin) it was concluded that a separation of child and mother was offensive to art 8 of ‘the corresponding provision in the European Convention’.  The Deputy President held that there was no risk of a separation between Ms Dawson and her children in the present case and hence that the right is not engaged.  In R v London Borough of Enfield Ex Parte Bernard [2002] EWHC 2282 (Admin) it was held that positive measures must be taken to protect a normal private and family life for particularly vulnerable groups (such as the ‘largely disabled’), a description Deputy President Macnamara found not applicable to Ms Dawson.

The Deputy President held that a denial of any monetary entitlement, at least where a person of modest means is concerned, has the potential to affect that person’s family life…’ but pointed out that ‘care needs to be taken in applying European authorities based on the European Convention to the Victorian Charter’.  The Deputy President held that there is a ‘clear’ difference between s 17 of the Charter and art 8 of the European Convention and that ‘a simple failure to pay a monetary benefit under a compensation scheme does not engage s 17 of the Victorian Charter’.

Right to privacy: s 13

Section 13 of the Charter provides the right ‘not to have … privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.  After considering the issues dealt with in a number of cases referred to by Ms Dawson, the Deputy President held that:

The distance between these sorts of cases and the matters before the Tribunal in the present proceeding is obvious. I am at a loss to understand how refusal of a monetary entitlement can amount to a challenge to one’s right to privacy.

The Deputy President concluded that ‘[t]he Charter, which generally does not extend to economic and social rights, surely does not seek to reach this sort of situation.  No relevant human right is engaged’.  In conclusion, the Deputy President held that s 32 of the Charter did not change the interpretation of the Transport Accident Act, a ‘conclusion that necessarily immunises the Commission from any liability under s 38 of the Charter.’

Susanna Hedenmark is a volunteer with the Human Rights Law Resource Centre