Maxwell photoBY JACK MAXWELL

On 4 May 2006, then Victorian Attorney-General Rob Hulls proclaimed that the Charter of Human Rights and Responsibilities records ‘the civil and political rights we all hold and expect government to observe.’ The Charter enshrines this expectation through ss 28, 32 and 38. Section 28 requires all Bills to be accompanied by a statement of whether and how the Bill is compatible with human rights. Section 32(1) requires courts to construe statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistently with their purpose. The High Court’s 2011 decision in Momcilovic v The Queen cast a pall of uncertainty over the operation of s 32(1).

This post is concerned, however, with the other operative provision, s 38. Section 38(1) imposes two distinct obligations on public authorities, which include Ministers, police, local councils and other public officials. It makes it unlawful for a public authority to act incompatibly with human rights (‘the substantive obligation’), or to fail to give proper consideration to relevant human rights when making a decision (‘the procedural obligation’).

The s 38(1) obligations are enforced in accordance with s 39 of the Charter. Section 39(1) provides that if, independently of the Charter, a person may seek a remedy in respect of a public authority’s act or decision on the ground that the act or decision is unlawful, then he or she may seek that remedy on the ground that the act or decision is unlawful under s 38(1). For example, in Sabet v Medical Practitioners Board of Victoria, Dr Sabet sought orders in the nature of certiorari to quash the Board’s decision to suspend him, on the ground of denial of natural justice. Pursuant to s 39(1), Dr Sabet could also seek that remedy on the basis of unlawfulness under s 38(1) of the Charter, irrespective of whether his non-Charter ground was successful.

In a series of decisions, Victorian judges have clarified the obligations of public authorities under s 38(1). In this post, I examine the current state of the jurisprudence on s 38(1), highlight several issues regarding the extent of public authorities’ obligations that are yet to be resolved.

The substantive obligation

The substantive limb of s 38(1) requires a court to consider three questions. The first question is whether a public authority’s act ‘engages’ a person’s human rights. As Bell J explained in Antunovic v Dawson, human rights are engaged when a public authority ‘acts towards a person in a way which apparently limits their human rights’.

The second question is whether s 38(1) applies to the public authority’s act. Section 38(2) states that if under law the public authority could not reasonably have acted differently or made a different decision, s 38(1) does not apply. I return to the operation of the exception in s 38(2) below.

The third question is whether the limitation is both imposed ‘under law’, and reasonable by reference to the factors in s 7(2). Section 7(2) of the Charter recognises that human rights may be subject to reasonable limits, imposed by law.

If the limitation is unlawful or unreasonable, the public authority’s act is incompatible with human rights and unlawful under s 38(1). Subject to further consideration by the High Court, the nature of the substantive obligation appears relatively settled.

The procedural obligation

The content of the procedural obligation has been spelt out in a number of cases. In Castles v Secretary to the Department of Justice, Emerton J held that the procedural obligation has four elements. First, the public authority must understand which rights of the person affected by the decision are relevant. Second, the public authority must seriously turn its mind to the decision’s impact on the person’s rights. Third, it must identify the countervailing interests or obligations. Fourth, the public authority must weigh these competing rights and interests against each other.

The Castles approach was recently endorsed by three members of the Court of Appeal in Bare v Independent Broad-based Anti-corruption Commission. The procedural obligation is also subject to the exception in s 38(2), considered below.

The procedural obligations of different decision-makers

The case law on the procedural obligation has been limited to a particular decision-making context. The cases have centred on public authorities with the time and resources to go through the four elements set out in Castles. For example, in Burgess v Director of Housing, the public authority was the Director of Housing. Justice Macaulay found that the Director failed to give proper consideration to Ms Burgess’ right to protection of her family and children when he issued her a notice to vacate her public housing.

It is unclear how the procedural obligation operates in other contexts. What if a livestock inspector reasonably suspects that a person’s cattle have contracted foot and mouth disease, and decides that the cattle should be destroyed? Or if a police officer comes across a person who appears to be mentally ill and is threatening to commit suicide, and decides that the person should be apprehended? These situations raise the more general question: what does s 38(1) require when a public authority is making quick decisions in response to some pressing danger or emergency?

Judges have emphasised that the procedural obligation is flexible. In Castles, Emerton J stated that there is ‘no formula’ for the obligation, which is ‘intended to apply to the plethora of decisions made by public authorities of all kinds’. In PJB v Melbourne Health, Bell J noted, quoting Lord Hoffmann in R (Begum) v Denbigh High School, that ‘[d]ecision-makers are not expected to approach the application of human rights like a judge “with textbooks on human rights at their elbows”’.

In this respect, the procedural obligation might be similar in nature to the common law rules of procedural fairness, the content of which adapts to the circumstances of the particular case. In Marine Hull and Liability Insurance Co Ltd v Hurford, Wilcox J noted that certain statutory powers, such as those conferred to tackle emergencies, are essentially inconsistent with the obligation to afford a hearing to an affected person. In these cases, the court will impute to the legislature an intention to exclude a hearing altogether.

A similar argument could be made regarding the procedural obligation. There are at least two ways to make this argument: through an exercise in statutory interpretation of the obligation in s 38(1), or by reference to the exception in s 38(2).

Statutory interpretation: ‘proper’ consideration

The first is by reference to the term ‘proper’ in a public authority’s obligation to consider relevant human rights in s 38(1). According to the Macquarie Dictionary, ‘proper’ means ‘adapted or appropriate to the purpose or circumstances’. Thus, in an emergency, it could be argued that ‘proper’ consideration amounts to something substantially less than the four elements set out in Castles.

However, this argument might not give sufficient weight to the text and purpose of s 38(1). Because the mandate to give proper consideration to human rights derives from statute, as opposed to the common law, it arguably has stronger force than the common law obligation to afford procedural fairness. Further, the Macquarie Dictionary’s colloquial definition of ‘proper’ is ‘complete or thorough’. In Bare, Santamaria JA stated that s 38(1) required at least ‘proper, genuine and realistic’ consideration of relevant rights. In the same case, Tate JA held that the word ‘proper’ imported a stricter standard than the common law obligation to take into account relevant considerations. These remarks lean in favour of the ordinary use of ‘proper’, and suggest that the procedural obligation has some irreducible core even in an emergency.

The exception in s 38(2)

The second way in which the procedural obligation might adapt to an emergency is through s 38(2), which creates an exception where the public authority could not reasonably have acted differently or made a different decision. It could be argued that the subject matter, scope and purpose of a particular statutory provision are inconsistent with the four-step approach set out in Castles. sSection 38(1) will not apply, because the public authority could not reasonably have made a different decision under that statutory provision. For example, in an emergency situation, a public authority might not reasonably have been able to spend more time identifying and weighing the relevant rights and interests.

This raises the question of the construction of s 38(2). If a public authority is under a statutory duty to make a particular decision in an emergency, s 38(2) is likely to be enlivened. Depending on the circumstances, the emergency may be such that no other courses of action are open. Therefore, the public authority could not lawfully (let alone reasonably) have made a different decision.

In the case of a discretionary power, however, the issue is more complicated. There is little detailed judicial consideration of s 38(2) to guide its interpretation.

In DPP v Kaba, Mr Kaba was travelling in a car stopped by two police officers as part of a random licence and registration check. The officers had a discretionary power to stop and check under s 59(1) of the Road Safety Act 1986 (Vic). Justice Bell held that the officers were not required to give proper consideration to Mr Kaba’s relevant human rights before deciding to exercise their power to stop the car.. Section 38(2) was enlivened, and thus the officers’ decision to stop Mr Kaba was not susceptible to challenge under s 38(1), because the decision was ‘authorised’ by their discretionary power. According to Bell J, the interference with Mr Kaba’s right to freedom of movement was ‘the ordinary and natural consequence of the due exercise of the power in s 59(1) and was also covered by s 38(2)’.

With respect, Bell J’s reasoning in Kaba should be rejected. The language of s 38(2) does not except acts or decisions that are merely ‘authorised’ by a statutory provision. Expanding s 38(2) to shield the ‘ordinary and natural’ consequences of the exercise of statutory powers would render s 38(1) virtually empty.

The better interpretation is that s 38(2) has no operation where a range of options are reasonably open. In all but the most extreme situations, a public authority on the cusp of exercising a statutory power will have reasonable alternative courses of action. Certainly, the police officers in Kaba had a choice about whether to stop Mr Kaba’s car. The Charter did not prevent them from doing so. But it required them to do so compatibly with, and while giving proper consideration to, Mr Kaba’s human rights.

Speaking recently in Melbourne, Elias CJ of the New Zealand Supreme Court noted that ‘[m]any of the more difficult questions concerning the application and interpretation of the [New Zealand] Bill of Rights Act are only just emerging, nearly 25 years after its enactment.’ The Charter has been in force for just eight years. In that time, Victorian lawyers and judges have progressively refined our understanding of public authorities’ obligations under s 38. But in light of Elias CJ’s words, we should not be surprised that certain questions remain unresolved, including the procedural obligations of different decision-makers, and the scope of the exception in s 38(2). The Victorian Government’s recent review of the Charter does not tackle these questions. We thus await the plaintiffs, lawyers and judges who will continue to develop Australia’s human rights jurisprudence.

Jack Maxwell has degrees in law and philosophy from the University of Melbourne.

Suggested citation: Jack Maxwell, ‘The obligations of public authorities under the Victorian Charter of Human Rights and Responsibilities’ on AUSPUBLAW (9 February 2016) <>