XFJ v Director of Public Transport (Occupational and Business Regulation)  VCAT 2303 (31 October 2008)
In overturning a decision by the Director of Public Transport to refuse to grant XFJ, the applicant, accreditation to drive commercial taxi vehicles under the Transport Act 1983 (Act) , VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights.
XFJ came to Australia as a refugee from Ethiopia in 1989. Prior to arriving in Australia he endured many hardships during his escape from Ethiopia, including imprisonment and torture in Egypt. In 1990, during a period of acute depression, he stabbed his estranged wife to death and shortly afterwards failed a suicide attempt.
XFJ was acquitted of his wife’s murder on the ground of insanity and was detained in a psychiatric institution. In 1998, after years of rehabilitation and treatment, he was released into the community on a special supervisory regime and in 2003 he was completely discharged.
When XFJ first applied for a taxi licence, the Director of Public Transport refused his application. The Transport Act 1983 has deeming provisions which provide that a person found not guilty of an offence on the basis of mental impairment is considered guilty for the purposes of the Act. On closer inspection, it emerged that the deeming provision was not applicable to XFJ as he had been dealt with under the pre-1997 insanity regime. When the Director reconsidered his decision, he accepted that he had a discretion to exercise, but denied the application on the basis of the ‘public care objective’ contained in s 169 of the Act.
Mr XFJ applied to VCAT for a review of the Director’s decision to refuse accreditation.
The Deputy President overturned the Director’s decision and found that XFJ should be awarded a licence to operate taxicabs.
The decision hinged predominantly on the interpretation of the factual circumstances of the case. While the Director of Public Transport found the ‘public care objective’ would not be served by accrediting XFJ, the Deputy President disagreed, finding that XFJ had been rehabilitated and there was ‘no serious safety issue’. This was based largely on the evidence of the consultant psychiatrists who gave evidence that XFJ has been free of any mental health symptoms for the past 14 years and is ‘probably no more likely to have another episode of depression than does anybody else in the community’.
Application of the Victorian Charter
During the course of the hearing, counsel for XFJ raised a number of arguments based on the Charter. While the Deputy President acknowledged that s 32(1) of the Charter requires that statutory provisions be interpreted ‘in a way that is compatible with human rights’, he declined the opportunity to engage the issues raised by the Charter, commenting that his interpretation of the Transport Act:
is in accordance with [s 32(1)], and no issue arises of any inconsistency between the Transport Act and the Charter of Human Rights and Responsibilities Act 2006. Hence, even although issues relative to the Charter have been raised and argued before me, it is, as far as I can see, unnecessary for me to consider giving notice to, or inviting argument from, either the Attorney General or the Human Rights Commission.
With respect, this approach is concerning for two reasons.
First, the better view of s 32(1) is that interpretation of a statutory provision compatibly with human rights should be considered in the first instance, rather than only after some ambiguity or prima facie incompatibility has been identified. The Charter seeks to ‘establish a framework for the protection and promotion of human rights in Victoria’. The purpose of s 32 is to establish a requirement that statutory provisions be interpreted in a way that is compatible with human rights. Consistently with these purposes, the Charter-compatible interpretation should now be regarded as ‘ordinary’ and ‘normal’.
Second, it is not clear why the Deputy President considered s 35 of the Charter, which requires notice to the Attorney General and the Victorian Equal Opportunity and Human Rights Commission in certain County Court and Supreme Court proceedings. Section 35 does not apply to the Tribunal or to parties before VCAT and should certainly not be treated as a pre-condition to the consideration or application of the Charter.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2008/2303.html.
Timothy Kern is an intern from the Australian National University.