Supreme Court Considers Retrospective Operation of the Charter

State of Victoria v Turner [2009] VSC 66 (4 March 2009) In this case, the Supreme Court of Victoria considered whether it was bound by the interpretive provision in s 32 of the Charter when determining whether the Victorian Civil and Administrative Tribunal made an error of law in a decision relating to a proceeding commenced prior to 1 January 2007.


This case was an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) from an order of VCAT relating to a complaint of discrimination by Rebekah Turner against the State of Victoria.

Turner suffers a learning disorder resulting from a brain dysfunction and made a complaint to the Equal Opportunity Commission of Victoria on 14 February 2005 alleging that the State, through the Department of Education and Early Childhood Development, indirectly discriminated against her.  The complaint related to the imposition of a condition that Turner access education without a teacher's aide.  Turner alleged that she was unable to comply with this condition, but that others without the impairment could.

The Commission referred the complaint to VCAT in May 2005.  The hearing of the complaint took place over 28 days between July and December 2006.  On 22 May 2007, VCAT published its orders and reasons.  Directions hearings to deal with remedies took place in December 2007 and, on 7 February 2008, VCAT published further orders and reasons in this regard.  The State sought leave to appeal, which was granted on 25 June 2008.  In its notice of appeal dated 8 July 2008, the State set out 17 questions of law in which it alleges that VCAT fell into error.


Kyrou J allowed the State's appeal in part and adjourned the proceeding to enable the parties to make submissions on orders.

In respect of the Charter, counsel for Turner submitted that as the State's appeal was commenced after 1 January 2008, s 32 of the Charter applies and the Supreme Court was bound to interpret s 136 of the Equal Opportunity Act 1995 (Vic) in a manner which is compatible with the right to effective protection against discrimination in s 8 of the Charter.

Counsel for the State argued that, even though the appeal constitutes a 'fresh' proceeding which was commenced after 1 January 2008, the Charter did not apply to the Supreme Court determining whether VCAT made an error of law.  Kyrou J agreed with the State.  Even though VCAT handed down its decision and reasons on 7 February 2008, as the proceeding was commenced prior to 1 January 2008 VCAT was not bound to interpret the EO Act in a Charter compliant manner, and thus nor was the Supreme Court in examining whether VCAT had made an error of law.  Kyrou J stated:

'To use the Charter to give a provision such as s 136 of the EO Act an interpretation that differs from the interpretation that the Tribunal was bound to apply based on the law as it stood at the time the Tribunal made its decision, would, in effect, give the Charter retrospective operation.  There is nothing in the Charter that indicates that it intended to have such operation or to change the nature of an appeal to this Court on a question of law from the Tribunal.'

Application of the Victorian Charter

It was not disputed in this case that an appeal under s 148 of the VCAT Act was a fresh proceeding and an exercise of the original jurisdiction of the Supreme Court.  The reason that the Charter was not relevant in this case was therefore not an application of the transitional or commencement provisions to the Supreme Court proceeding.  The Charter was not relevant to the issues to be determined because s 148 of the VCAT Act invoked the judicial power of the Supreme Court to review whether a tribunal has made an error of law.  The Supreme Court was therefore bound to consider the law as it stood at the time VCAT made its decision, which was prior to the commencement of the Charter.  While not relevant on the facts of this case, the Supreme Court would have still been bound by the Charter to the extent that it had functions under Part 2, for example the right to fair hearing at s 24 of the Charter.

Kyrou J stated that that there is nothing in the Charter that indicates that it was intended to have retrospective operation.  This is consistent with BAE Systems Australia Limited (Anti - discrimination) [2008] VCAT 1799 (11 September 2008) and is broadly consistent with UK jurisprudence on this topic: Wilson v First Country Trust Ltd (No 2) [2003] 3 WLR.  It is important to note, however, that the House of Lords did not lay down a rigid rule against retrospectivity in Wilson, but rather held that whether the interpretation provisions in the Human Rights Act 1998 (UK) apply to pre-commencement events depends on a 'fairness principle' and the context and facts of the individual case before the court.

The decision is available at

Helen Beatty is a lawyer with Allens Arthur Robinson