P J B v Melbourne Health & Anor (Patrick’s case)  VSC 327 (19 July 2011)
In this case, the Supreme Court of Victoria held that the Victorian Civil and Administrative Tribunal had both failed to interpret law consistently with human rights and had itself failed to act compatibly with human rights in appointing an administrator to sell the home of a man with disability against his wishes.
Patrick is a 58 year old man who has a mental illness and has been an involuntary patient in a hospital for over ten years. He owns a house and wants to live independently in the community. According to the Court, however, this is “quite unrealistic” and would likely lead to a “serious deterioration” in his physical and mental health.
The hospital “wants to move Patrick to supported accommodation in a hostel, which he opposes”. The hospital considers that “the move would be more likely to succeed if Patrick did not continue to own his home” and therefore applied to the Victorian Civil and Administrative Tribunal for an administrator to be appointed over his estate with a view to selling the house.
At first instance, VCAT decided that “Patrick was a person with a disability who was unable to make reasonable judgments about his estate and needed an administrator”. Although the Tribunal accepted that Patrick had a “very strong connection with his home”, it decided that “judgments about his estate could not be separated from where it was in his best interests to live”. Accordingly, it appointed State Trustees Ltd to be an unlimited administrator, knowing it would probably sell Patrick’s home.
Patrick appealed to the Supreme Court of Victoria to set aside the appointment of the administrator, contending that “he manages his finances and home reasonably well and the administration order unjustifiably interferes with his human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).”
Justice Bell allowed the application and set aside the order of the Tribunal to appoint an administrator on two grounds. First, His Honour held that VCAT made an error of law, stating that:
...appointing an administrator, particularly with unlimited powers, is a very serious step because it transfers complete and exclusive control of a person’s estate to the administrator. Such a step engages the human rights, and the fundamental common law rights and freedoms, of persons. In accordance with the applicable principles, I have interpreted the provisions of the Guardianship and Administration Act so as to preserve as much as possible a person’s human rights to choose where to live, including in a home which they own (s 12), to be free of arbitrary and unlawful interference with their home (s 13(a)) and to enjoy these rights equally with other people (s 8(3)), as specified in the Charter of Human Rights and Responsibilities Act...
Second, His Honour held that, as a public authority under s 4(1) of the Charter, the Tribunal was required by operation of s 38(1) to exercise the discretion to appoint an administrator compatibly with Patrick’s human rights. In the circumstances, Bell J “concluded the appointment of the administrator was not reasonable and demonstrably justified and was therefore incompatible with Patrick’s human rights and unlawful.” His Honour stated that:
The appointment infringes [Patrick’s] human rights very seriously, as the administrator will take complete management and control of his money and other property, and probably sell his home. No sufficient purpose has been shown to justify such a serious infringement of his human rights, as he is not in a crisis (or anything like it) in terms of his health, accommodation or otherwise. He has not been found to be mismanaging his money or his home. It is not known whether transferring him to a hostel would be successful, temporary or permanent. Lastly, appointing an unlimited administrator was virtually the most rather than the least restrictive option which was reasonably available.
Consideration of Charter Issues
In reaching the conclusions above, Bell J made a range of significant statements regarding the interpretation and application of the Charter, some of which are summarised below.
Scope and engagement of human rights (paras 36-40)
For the purpose of determining whether there has been a limitation, restriction or interference with human rights, rights should be interpreted broadly, purposively and in a “non-technical way”.
Equality (paras 41-44)
The right to equality under s 8 of the Charter is a “right of fundamental importance”. It includes the right to non-discrimination on the grounds of disability and is, by definition, engaged by the appointment of an administrator.
Freedom of movement (para 45-52)
The right to freedom of movement protected by s 12 of the Charter “protects a person’s liberty of movement in Victoria and their freedom to choose where to live” and to establish a residence. Legislation or legal steps to remove a person from their home or to prevent them from returning home engages the right to freedom of movement.
Right to privacy and home (paras 53-62 and 74-86)
The right of persons “not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with” is right of “considerable amplitude”, the purpose of which is “to protect and enhance the liberty of the person – the existence, autonomy, security and wellbeing of every individual in their own private sphere”.
Contrary to the view of Kaye J in WMB v Chief Commissioner of Police  VSC 219, the right to freedom from “arbitrary” interference is not limited to interference “which stems from an act of caprice or whim”. Rather, consistent with international and comparative human rights law, including jurisprudence of the UN Human Rights Committee:
the human right in s 13(a) not to have your privacy, family, home or correspondence ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.”
Right to property (paras 87-95)
Section 20 of the Charter provides that “a person must not be deprived of his or her property other than in accordance with law.”
The terms “property” and “deprived” should be “interpreted liberally and beneficially to encompass economic interests and deprivation in a broad sense.”
The requirement that any deprivation of property be “in accordance with law” requires not only that the deprivation be legally authorised, but that “the law concerned must be publicly accessible, clear and certain and not operate arbitrarily.”
In the present case, the appointment of an administrator amounted to “a de facto deprivation of property which engaged the right in s 20”, however, “the provisions of the Guardianship and Administration Act plainly answer the description of a ‘law’ within that provision”.
Relevance and weight of jurisprudence of the UN Human Rights Committee (paras 63-73)
Contrary to WMB v Chief Commissioner of Police  VSC 219, in which “Kaye J doubted the jurisprudential value of findings of the UN Human Rights Committee” in assisting in the interpretation of the Charter, Bell J stated that:
The Human Rights Committee is an independent body of human rights experts established under the International Covenant on Civil and Political Rights. Although it is not a court, it is quasi-judicial in character. Its decisions and general comments are not binding precedents and it our duty to form an independent view on the matters in issue. But the opinions of the committee represent an important body of jurisprudence on the interpretation and application of the covenant. Australian courts of high authority have referred to and relied on the opinions and general comments of the committee when interpreting the provisions of the covenant or domestic legislation to which it is relevant...That is especially so when identifying the scope of the human rights in the Charter, which reflect to a large extent those specified in the covenant.
Application of the Charter to the Tribunal (paras 97-129)
Pursuant to s 38(1) of the Charter, “public authorities” must act compatibly with human rights. “The concept of a public authority is thus critical to the achievement of the purposes of the Charter” and “should be given a beneficial interpretation which is consistent with that purpose.”
The focus of the definition of “public authority” is “on matters of substance, not form or technicalities”. This accords with the Second Reading Speech which states that the “intent is that the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature.”
When acting in an administrative capacity in its original and review jurisdiction, “the Tribunal is a public authority under s 4(1)(b) of the Charter and bound by s 38(1) to act compatibly with human rights”.
Section 32- Interpretative obligation (paras 239-271)
Section 32(1) of the Charter requires that the relevant provisions of the Guardianship and Administration Act “be interpreted compatibly with human rights so far as that is possible consistently with the purpose of those provisions.” The “possible interpretations must be explored within the framework of the ordinary rules of interpretation, having regard to that purpose” and “the interpretation which least infringes human rights must be adopted”.
Section 39 – Legal proceedings (paras 290-303)
Section 39(1) of the Charter “does not create a new cause of action or other proceeding”. Instead, “it attaches unlawfulness arising under the Charter as a ground to existing causes of action or proceedings by which relief or remedy may be obtained in respect of the act or decision on a ground of unlawfulness arising otherwise than because of the Charter. It then operates to make that relief or remedy available in that cause of action or proceeding on the ground of unlawfulness arising under the Charter, whether or not that relief or remedy is granted on a ground of unlawfulness not arising in that way.”
Accordingly, to apply s 39(1), “it is necessary to ask whether the [person] ‘may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful’. If the answer to that question is positive, then ‘that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter’.” By way of example, “in judicial review proceedings in which any relief or remedy may be sought on grounds of Wednesbury unreasonableness, s 39(1) permits the applicant to rely on a ground of unlawfulness arising under the Charter. Where Charter unlawfulness is established, the relief or remedy which could be sought on the ground of Wednesbury unreasonableness can be granted by the court on a ground of unlawfulness arising under the Charter, whether or not the unreasonableness ground is determined.”
Sections 38 and 7(2) – Obligation to act compatibly with and give proper consideration to human rights (paras 304-333)
Pursuant to s 38(1) of the Charter, an “act or decision of a public authority will be unlawful if it is ‘incompatible with a human right’ or proper consideration to a human right was not given”. The concept of “compatibility” in s 38(1) is to be read in conjunction with “the concept of justification in s 7(2).” Reading the provisions together, “an act or decision of a public authority will be unlawful under s 38(1) if it limits a human right in a manner which is not reasonable and demonstrably justified as specified in s 7(2), unless s 38(2) applies.”
Under s 7(2), “the onus of establishing that the limitation is demonstrably justified lies on the party seeking to uphold the justification. The standard of justification is stringent. Where matters of fact are involved, cogent evidence may be necessary. While the civil standard of proof applies, a high degree of probability is required, because limiting human rights is involved.”
The “‘procedural’ limb of s 38(1) that ‘proper consideration’ be given to relevant human rights requires public authorities to do so in a practical and common-sense manner”. While there is “no formula”, the public authority must “seriously turn his or her mind to the human rights impact of what is proposed and identify the countervailing interests or obligations”.
While the procedural limb is critical, s 38(1) also “requires the act or decision to be compatible with human rights” and “what matters is the result”. “Consideration” will not be “proper, however seriously and genuinely it was carried out, if the act or decision is incompatible with human rights.”
Judicial Review of Public Authorities under s 38 (paras 304-327)
When reviewing acts and decisions of public authorities under s 38, “the function of the court is to make an independent and objective judgment for itself about whether the limitation is justified under s 7(2) and therefore whether the act or decision is unlawful as incompatible with human rights or compatible and therefore lawful. The better was the consideration given to human rights at first instance, the harder it will be to challenge the act or decision concerned; but it is the actual compatibility of the act or decision with human rights that is at issue, not the quality of the reasoning supporting it.”
Although the standard of review to be applied by a court when assessing unlawfulness under s 38(1) and s 7(2) of the Charter does not amount to merits review, it “is a more intensive standard of judicial review than traditional judicial review on (say) Wednesbury unreasonableness grounds”. Endorsing the approach of Lord Steyn in R (Daly) v Secretary of State for the Home Department, His Honour quoted that:
First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relevant weight accorded to interests and considerations.
Proportionality therefore “draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests than traditional judicial review”.
While it is critical that courts “provide effective judicial protection for human rights” they must at the same time “respect the administrative function of the public authority under its legislation and not drift into merits review”. One important way of addressing that issue is “by affording weight and latitude to the acts and decisions of primary decision-makers”. The degree of weight or latitude which is afforded, and the intensity of the review which this implies, depends on the context and circumstances”, including “the comparative institutional advantage of the court (if any); the experience and expertise of the primary decision-maker; the nature and importance of the right, and the purpose of the interference, in question; and how well suited the court is to considering the values and interests which are at stake.”
The decision is at http://www.austlii.edu.au/au/cases/vic/VSC/2011/327.html.
Phil Lynch is Executive Director of the Human Rights Law Centre