VCAT declares local council breached resident’s Charter rights

Slattery v Manningham City Council (Human Rights) [2013] VCAT 1869 (30 October 2013)

The Victorian Civil and Administrative Tribunal has declared that a local council breached a resident’s human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) when it banned him from accessing its buildings. The Tribunal’s declaration was part of its orders about the appropriate remedy in a claim of discrimination under the Equal Opportunity Act 2010 (Vic) (‘EOA’).

Background

The applicant, a resident and ratepayer of Manningham City Council, made thousands of complaints to the Council over a number of years and attended numerous Council meetings, raising various issues including safety matters and the Council’s operation. The applicant had a number of diagnosed medical conditions.

In 2009, the Council passed a motion declaring the applicant a ‘proscribed prohibited person’, which had the effect of banning him from attending Council buildings, including for Council meetings. The Council also restricted the applicant’s communication with the Council, requiring any communication to be through a lawyer.

In 2013, the Tribunal found that the Council’s action in maintaining the applicant’s ‘ban’ on attending Council premises was discriminatory and that the Council’s conduct was not authorised by any exceptions in the EOA. The Tribunal also found that, by maintaining the ban, the Council had breached section 38(1) of the Charter which requires public authorities to act compatibly with, or give consideration to, human rights.

Also in the 2013 proceedings, the Tribunal found that, when determining a dispute under the EOA, it had jurisdiction to consider whether there had been a breach of the Charter. The Tribunal referred to the Victorian Court of Appeal’s decision in Director of Housing v Sudi [2011] VSCA 266 which held at [152]:

The question whether a public authority has acted unlawfully may be central to the resolution of a dispute where the lawfulness or otherwise of such conduct is an element of the cause of action in the proceeding...In (that) case, the Charter issue arises directly in the course of the proceeding and must be resolved according to law.

In this case, the Tribunal found that “the lawfulness of the decision of the Council to maintain the ban is before the Tribunal”. More information about this aspect of the decision can be found in this case note previously published by the HRLC.

Remedies

In October 2014, the Tribunal made orders in this matter for remedies under section 125 of the EOA that:

  • the Council revoke the ban on the applicant attending Council buildings;
  • the Council pay the applicant $14,000 in compensation; and
  • the CEO, directors and councillors undergo training on the Charter.

The applicant had sought an order from the Tribunal that current staff members of the Council, councillors, contractors and consultants be required to undertake equal opportunity and human rights training. This order was sought under section 125(a)(iii) of the EOA, which provides for orders that a person do anything with a view to redressing any loss, damage or injury suffered by an applicant as a result of the contravention of the EOA.

The Tribunal acknowledged that the Charter requires the Council, as a public authority, to consider the Charter. The Council’s CEO gave evidence that he had not received any training on the Charter. Accordingly, the Tribunal’s order – directed only to the Council’s senior officers – was to “assist and support the Council in understanding and taking account of [the applicant’s] Charter rights” and to contribute to redressing the loss experienced by him: at [49].

The Tribunal also made a declaration that, by maintaining the ban, the Council breached the applicant’s human rights under the Charter to equality (section 8), freedom of expression (section 15) and to participate in public affairs (section 18). In making the declaration, the Tribunal noted the comments of Justice Bell in Kracke v Mental Health Review Board (2009) 29 VAR 1 at [820] that “where human rights are breached, both the individual and the society have strong interest in the remedy of a declaration, in which inheres their final vindication”.

Commentary

This case is important for its explanation of the tests for discrimination under the Equal Opportunity Act 2010 (Vic). The case also demonstrates that the Tribunal can consider whether a public authority has complied with section 38 of the Charter. Local councils, as public authorities, are required to consider the Charter in acts and decisions. The case follows other decisions, such as Caripis v Victoria Police [2012] VCAT 1472, in finding that the Tribunal has jurisdiction to consider Charter unlawfulness, when the lawfulness of a decision itself is directly before the Tribunal.

This case also illustrates that human rights are relevant to the appropriate remedies in a proceeding. This is particularly so when a law provides for a broad range of orders to be made, as is the case under the EOA. In particular, this decision recognises that a declaration of breach of human rights is an important remedy. The Tribunal did not accept the Council’s argument that the finding of a breach of the Charter was sufficient, along with the fact that other remedies may be awarded. Instead, the Tribunal considered that a declaration ‘followed’ from the findings of a Charter breach.

At time of publication the full text of the decision was not yet online.

Prue Elletson is the Acting Assistant Manager of the Legal Unit at the Victorian Equal Opportunity and Human Rights Commission. Note that the Commission intervened in this case.

MichelleBennettDiscrimination & Equality, Disability & Mental Health