Charter should be interpreted beneficially but not applied retrospectively

Collier v Austin Health & Ors [2011] VSC 344 (27 July 2011)

Summary

The Supreme Court of Victoria's recent decision in Collier v Austin Health [2011] VSC 344 confirms that section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) will not operate in cases where the facts and events in issue occurred prior to the Charter's commencement. At the same time, however, the decision provides a useful reminder of the common law requirement that — even in the absence of the Charter's direction to interpret statutory provisions compatibly with human rights — courts and tribunals must interpret the provisions of protective human rights legislation as liberally and beneficially as their language will allow.

Facts

Mary Collier had been a food services worker at the Austin Hospital for ten years. Throughout this time, she had suffered from bipolar disorder. In late 2005, Ms Collier was placed under such unreasonable pressure and hours of work that her health broke down, and she spent nearly two months in hospital. The Austin Hospital accepted responsibility and made the workers' compensation payments for which it was liable.

Following her recovery, Ms Collier sought to enter the Austin Hospital's rehabilitation program and gradually return to work. The Austin Hospital had allowed Ms Collier to do this following an earlier breakdown in 2004, but now refused to give her any work and terminated her employment in 2006. At all material times, Ms Collier was fit, willing and able for graduated return to work.

Ms Collier brought a discrimination claim against the Austin Hospital in the Victorian Civil and Administrative Tribunal under the Equal Opportunity Act 1995 (Vic). VCAT summarily dismissed Ms Collier's claim on the basis that it was impossible to identify a suitable comparator, as was required by the Act. Ms Collier was given leave to appeal to the Supreme Court on the basis that VCAT's decision involved an error of law.

Decision

The Supreme Court appeal was heard by Bell J. In his decision, Bell J considered the relevant principles that would apply to the interpretation of the Act (and to protective human rights legislation generally) before considering Ms Collier's substantive grounds for appeal.

Relevant interpretive principles

Relying on his earlier decision in Re Kracke and Mental Health Review Board (2009) 29 VAR 1, Bell J held that section 32 of the Charter would not apply to the interpretation of the Act in this case. According to his Honour, although section 32 of the Charter applies to all Victorian statutory provisions whenever they were made, the common law presumption against the retrospective operation of statutory provisions prevents section 32 from applying so as to alter the fixed legal character of:

  • events which happened before the commencement of the Charter; or
  • legal relations, obligations or liabilities which were fixed on the happening of such events.

As the events relevant to Ms Collier's discrimination claim occurred before the commencement of the Charter, Bell J was required to interpret the Act in Collier by applying general principles of statutory interpretation without the assistance of section 32.

However, as Bell J went on to note, the general principle that statutory provisions should be interpreted consistently with their purpose has particular consequences for the interpretation of protective human rights legislation. These consequences were perhaps best expressed by Dawson and Gaudron JJ in IW v City of Perth (1997) 191 CLR 1:

In construing legislation designed to protect basic human rights and dignity, the courts 'have a special responsibility to take account and give effect to [its] purpose.' For this reason, the provisions should be construed as widely as their terms permit.

In the same case, Brennan CJ and McHugh J said that protective human rights legislation — and particularly equal opportunity legislation — was 'beneficial and remedial' and was to be given a 'fair, large and liberal' interpretation rather than one which is 'literal or technical'.

Referring to a range of international materials, including the Universal Declaration of Human Rights and the UK House of Lords' decision in Ghaidan v Godin-Mendoza [2004] 2 AC 557, Bell J concluded that the purpose of the Act was to protect important human rights and to provide redress where those rights had been violated. As such, Bell J was required to give the Act a 'liberal and beneficial' interpretation to give effect to this purpose.

However, as Bell J noted in his judgment, the principle expressed by the High Court in IW v City of Perth is subject to an important limitation. It does not permit the interpretation of statutory provisions to go beyond what their language can bear, and it should not allow the consideration of the purpose of legislation, or general statements of principle in relevant international materials, to divert the court from giving careful attention to the text of the provisions.

Substantive grounds of appeal

The substantive question to be determined by Bell J in Collier related to the interpretation of section 8(1) of the Act, which provides that discrimination occurs when a person with a particular attribute is treated less favourably than a person without that attribute in the same or similar circumstances. In order to establish that discrimination has occurred, section 8(1) requires the complainant to identify a real or hypothetical 'comparator' without the relevant attribute who would be treated differently.

VCAT had dismissed Ms Collier's claim on the basis that it was impossible to identify a suitable comparator. VCAT considered that the relevant attribute for the purposes of identifying a comparator was 'impairment', and reasoned that there could be no comparator as there would be no situation in which a person without an impairment required a graduated return to work.

Applying the principles of statutory interpretation discussed above, Bell J rejected VCAT's reasoning. His Honour noted that accepting VCAT's narrow interpretation of section 8(1) would leave the Act 'paralysed' in respect of attributes possessed by everybody, such as age, physical features and sex, and in cases involving denial of return to work and rehabilitation services for sick and injured workers.

Instead, giving section 8(1) of the Act the 'liberal and beneficial' interpretation that it required, Bell J held that the relevant attribute for the purposes of identifying a comparator was not 'impairment' generally, but Ms Collier's specific impairment. Accordingly, the relevant comparator for the purposes of section 8(1) was a hypothetical person with a different type of impairment who was also seeking access to a rehabilitation program and graduated return to work. Bell J remitted the matter to VCAT for reconsideration on this basis.

Implications for the Victorian Charter

Although the principle expressed by the High Court in IW v City of Perth is narrower than the interpretive direction in section 32 of the Charter (in that it only applies to the interpretation of statutory provisions which exist for the express purpose of protecting human rights), it is still an important principle for ensuring that human rights are protected and upheld in situations where the Charter does not apply. In many respects, the requirement to construe protective human rights legislation liberally and beneficially requires much the same interpretive task as the direction in section 32 to construe statutory provisions compatibly with human rights.

Over time, the number of Victorian cases involving facts and events occurring before the commencement of the Charter will diminish. However, situations will remain — particularly in other jurisdictions, but possibly also in Victoria — in which the Charter does not apply. In these situations, the principle of statutory interpretation applied by Bell J in Collier will continue to have an important role to play in ensuring that, as Kirby J put it in IW v City of Perth, “[e]specially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation.”

The decision is can be found online at: http://www.austlii.edu.au/au/cases/vic/VSC/2011/344.html

Mark Hosking is a Lawyer at Allens Arthur Robinson.