Supreme Court Considers meaning of ‘Proceeding’ to Determine Application of Charter pursuant to Transitional Provisions

Secretary to the Department of Justice v Fletcher (Ruling No 3) [2009] VSC 503 (22 October 2009)

Section 49(2) of the Charter states that the Charter ‘does not affect any proceedings commenced or concluded before the commencement of Part 2’.

In this case, the question arose as to whether a particular application in relation to an Extended Supervision Order (‘ESO’) under the Serious Sexual Offenders Monitoring Act 2005 (Vic) (‘SOM Act’) was a ‘proceeding’ and, if so, the relevant date of its commencement.

The Court held that, by operation of s 49(2), the Charter did not apply to the proceedings, and in doing so, followed the principle established in R v Williams [2007] VSC 2, by taking a broad view as to what constitutes 'proceedings' for the purposes of the Charter's transitional provisions.


  • On 4 March 1998, the respondent, Mr Fletcher, was sentenced for a sexual offence.
  • On 2 March 2006, the Secretary made an application for an ESO.  An ESO was granted on 29 May 2006, with a review date set for 11 June 2009.
  • On 1 January 2007, Part 2 of the Charter, which enshrines twenty civil and political rights, came into effect.
  • On 30 January 2008, Mr Fletcher made an amended application for a review of the ESO under s 21(3) of the SOM Act.
  • On 23 June 2008, the Court granted leave to review and on 24 June 2008 an application for review was made by Mr Fletcher.


As discussed above, s 49(2) of the Charter states that the Charter ‘does not affect any proceedings commenced or concluded before the commencement of Part 2’.

The Court was also required to determine whether the proceeding initiated by Mr Fletcher on 24 June 2008, or his amended application on 30 January 2008, was a separate proceeding to the proceeding commenced on 2 March 2006.  'Proceeding' is not defined in the Charter.  Justice Cummins held that the applications of 30 January 2008 and 24 June 2008 were steps within a single set of proceedings flowing from the application of 2 March 2006.

Justice Cummins gave several reasons for his decision:

  • Due to the nature of the application made by the Secretary on 2 March 2006, and by nature of the extensions, variations and other incidents of the application, including the present matter, the later proceedings stemmed from and related back to the original application.
  • The SOM Act ‘has, as its philosophical foundation, a continuing supervisory and safety function’.  This supports the view that the ESO proceedings must be viewed as a single, continuing matter rather than a series of discrete and separately commencing matters.
  • Reliance was placed on the decision in R v Williams, in which King J interpreted s 49(2) of the Charter to mean that the Charter had no relevance to an individual application for adjournment, since the criminal proceedings as a whole had commenced prior to the introduction or commencement of the Charter, particularly Part 2.
  • Section 23(6) of the SOM Act, which states that ‘a court on review need not be constituted by the same judge who constituted the court that made the extended supervision order’ supports the view of the series of applications as a continuing single entity.

Justice Cummins determined that, as a matter of law, the Charter did not apply to the present proceeding, as this application was part of a proceeding which commenced on 2 March 2006.


This case builds upon the principle established in R v Williams and takes a holistic approach as to what is a ‘proceeding’ for the purpose of the Charter’s transitional provisions.

For several years to come, there will continue to be a large number of proceedings to which the Charter will not apply.  This will be the case if the application or proceeding in question can be linked back to an initial proceeding begun prior to 1 January 2007, being the commencement date of Part 2 of the Charter.

The decision is available at

Kate Murray, DLA Phillips Fox