Requiring courts to interpret legislation consistently with human rights
A Human Rights Act for WA would benefit people by requiring WA courts and tribunals to consider the purpose of laws and then interpret them consistently with our human rights to the extent that it is possible to do so.. This could include relying on international human rights law.
In the absence of specific human rights legislation, judges in Australia have generally been reluctant to rely on international human rights standards when deciding cases. A WA Human Rights Act would address this by establishing a framework that encourages courts and tribunals in WA to give significant regard to our human rights when deciding on the cases before them. In turn, those decisions would become part of our common law system and set precedents that are followed in similar cases across WA.
There is now a growing body of case law in the ACT, Victoria and Queensland which demonstrates how legislation can be interpreted consistently with human rights. The case studies below demonstrate how this process is benefiting people in those states.
Furthermore, a Human Rights Act could empower the Supreme Court of Western Australia to issue a declaration to the WA Parliament that existing or proposed legislation is incompatible or inconsistent with human rights protections. Such a declaration would not enable the Court to strike down the law or declare it invalid, but it would provide a mechanism for powerful dialogue between the WA parliament and and courts that helps to avoid or address laws that threaten our basic rights and freedoms. .
Case study: Director of Housing v Cochrane  VCAT 1180
Ms Cochrane was a tenant with a large family who had been renting a property in Victoria for approximately 11 years when she was served with a notice to vacate. The landlord had served the notice under section 243 of the Residential Tenancies Act 1997 (VIC). The case was heard before the Victorian Civil and Administrative Tribunal (VCAT) which found that the current property damage had not been caused maliciously and there was no current or ongoing threat to the property.
Importantly, VCAT noted that the Victorian Charter enshrines the right of a person not to have their privacy, their family or their home unlawfully or arbitrary interfered with. VCAT applied this human rights legislation to interpret section 243 of the Residential Tenancies Act 1997 (VIC) in a way that allowed Ms Cochrane to remain in her home.
Case study: Ingram v QBE Insurance Australia Ltd  VCAT 1936
While in Year 11 of high school Ms Ingram’s family paid for a school tour to New York scheduled for the following year in March 2012. Payment was also made for a travel insurance policy issued by QBE. In January 2012 Ms Ingram experienced symptoms of depression for the first time in her life. In consultation with her doctors and her mother, Ms Ingram decided not to go on the planned school trip in the interest of her health.
In rejecting the family’s claim, QBE had relied on a general policy inclusion which stated there would be no cover for claims arising directly or indirectly due to mental illness. Ms Ingram and her family asserted that excluding mental illness from the insurance policy was in breach of the Equal Opportunity Act 2010 (VIC) (EOA) by discriminating against Ms Ingram on the basis of a disability.
In the EOA, ‘disability’ included a ‘disability that may exist in the future.’ QBE argued this definition was limited to people who already had a disability that was hidden or had not manifested yet. However, the Victorian Civil and Administrative Tribunal used the Victorian Charter to interpret the definition to also include a person at a point in time when a future disability did not yet exist, and found in favour Ms Ingram and her family. The Tribunal determined this broader definition to be more compatible with the Charter, having particular regard to section 8 which provides that every person is equal before the law and entitled to equal protection of the law without discrimination.
Case study: PBU & NJE v Mental Health Tribunal  VSC 564
In 2018, two individuals referred to as PBU and NJE relied on the Victorian Charter to challenge orders made by the Victorian Civil and Administrative Tribunal (VCAT) to subject each of them to a course of up to 12 electroconvulsive treatments (ECT). VCAT made the orders under the Mental Health Act 2014 (VIC) after determining PBU and NJE satisfied the Act’s test for ordering compulsory ECT because they did not have the capacity to give informed consent, and there was no less restrictive way for each patient to be treated.
In their appeal against the orders, PBU and NJE asserted that, among other things, the VCAT had failed to give effect to their human rights and respect their human dignity under the Mental Health Act and had made decisions that were incompatible with their human rights under the Victorian Charter.
The Supreme Court of Victoria found for the appellants, confirming that the test under the Mental Health Act must be interpreted in a way that is compatible with the human rights of patients receiving compulsory ECT. The judgment noted that individuals with a mental illness ‘are highly vulnerable to interference with the exercise of their human rights’. In this case VCAT was found to have applied the statutory test in ways that undermined the patients’ human rights to self-determination, to be free of non-consensual medical treatment and to personal inviolability which are protected by the Victorian Charter.
Case study: Bare v Independent Broad-Based Anti-Corruption Commission & Ors (2015) 48 VR 129
Mr Bare was an Ethiopian immigrant who alleged he had been seriously assaulted and racially vilified by officers of the Victorian Police in February 2019. Mr Bare was 17 years old at the time and the alleged assault had caused injuries to his jaw and his teeth. He submitted a complaint to the Office of Police Integrity (OPI) but they refused his request for an independent investigation.
Mr Bare was able to rely on the Victorian Charter to bring proceedings in the Supreme Court of Victoria. One issue was whether OPI had contravened its obligations under the Victorian Charter with respect to sections 8(3) (regarding equality before the law) and 10(b) (regarding cruel, inhuman or degrading treatment).
The Court found OPI’s decision to refuse to conduct an independent investigation was unlawful under section 38 of the Victorian Charter, because the decision-maker had failed to give proper consideration to Mr Bare’s human rights. The Court also held that the Police Integrity Act 2008 (VIC) did not render a decision not to investigate immune to the effect of section 38 of the Victorian Charter. In her judgment, Justice Tate stated that the ‘proper’ consideration to given to human rights by public authorities under the Victorian Charter, demands a higher standard of consideration than that generally applicable at common law.
Case study: Burgess v Director of Housing  VSC 648
Ms Burgess had been living in a public housing property since 2006 and her teenage son regularly stayed with her. In 2013, the Director of Housing issued her a notice to vacate under the Residential Tenancies Act 1997 (VIC) in relation to ‘illegal use’ of the property. Ms Burgess’s appeal was upheld by the Supreme Court. Justice Macauley held that the Director’s decision was unlawful under section 38 of the Victorian Charter because it had failed to give proper consideration to the right to protection of families and children when deciding whether to evict a tenant.
The decision was significant for the rights of public housing tenants. It articulated the obligations of the Director of Housing to consider human rights in making eviction decisions and has positively affected how the Director engages with tenants.
Case study: Certain Children v Minister for Families and Children & Ors (No 2)  VSC 251
In 2017, proceedings were brought by teenagers against the Victorian government for breaches of the Victorian Charter in relation to their detention at an adult prison. The teenagers were frequently isolated for up to 23 hours a day in cells that were designed for adult men, regularly handcuffed for routine activities, capsicum sprayed during a prison disturbance, developed risks of depression, anxiety, cognitive problems, hypersensitivity and paranoia, or exacerbation of existing mental health problems. The Supreme Court of Victoria held that this conduct breached the rights of the child to protection in their best interests and rights of persons deprived of liberty to be treated with humanity and respect for the inherent dignity of the human person. The Court further held that the limitation on the human rights imposed on the teenagers was not demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Case study: Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors  QLC 4
Objections against an application by Waratah Coal for a mining lease and environmental authority to develop a coal mine were referred to the Land Court of Queensland. One of the objections made was the impact the mine would have on the human rights of the Aboriginal and Torres Strait Islander peoples in Queensland. In 2020, the Land Court had held that human rights could be the subject of an objection to be considered by the Court.
In 2022, as part of this ongoing objection matter, the Land Court had to determine whether evidence to be given by four First Nations witnesses should be taken orally on country, in order to uphold the witnesses’ human rights under QLD’s Human Rights Act. Waratah Coal opposed the on country evidence on the basis that it was unnecessary and involved disproportionate costs as Waratah did not wish to cross-examine the witnesses on their statements that had already been filed.
The Land Court found that the First Nations’ witnesses cultural rights under section 28 of QLD’s Human Rights Act would be unduly limited if their evidence was confined to written statements. The Land Court emphasised that the cultural rights were communal in nature and therefore the Court would benefit from hearing evidence about the impact of climate change on their community’s ability to enjoy and maintain these rights. The Court also considered that confining First Nations’ witnesses to written statements would limit their right to maintain their culture about how they transmit traditional knowledge.
Case study: Owen-D’Arcy v Chief Executive, Queensland Corrective Services  QSC 273
Mr Michael Owen-D’Arcy was convicted of murder in 2010 and held in solitary confinement from 2013 to 2020. In June 2020, an Executive Director in the Department of Corrective Services issued Mr Owen-D’Arcy with a further six-month Maximum Security Order and a No Association Order (‘the Decisions’) under the Corrective Services Act 2006 (QLD). Together these orders continued Mr Owen-D’Arcy’s solitary confinement within a 3.8m long and 2.2m wide cell for all but two hours per day. Any interactions he had with others was “unlikely to rise to the level of ‘meaningful human contact’”.
In 2021, the Supreme Court of Queensland considered Mr Owen-D’Arcy’s application for judicial review and for relief under the QLD’s Human Rights Act. The Court found that the Decisions limited Mr Owen-D’Arcy’s right to humane treatment when deprived of liberty and that this limitation was not justified. The Court found the decision-maker had not provided any basis for her belief that there was no less restrictive option to adequately manage the security risks posed by Mr Owen-D’Arcy and the decision-maker had not given sufficient weight to the fact the Decisions had the effect of continuing his solitary confinement for a further six months after seven years of solitary confinement. Therefore, the Corrective Services’ decision was unlawful under QLD’s Human Rights Act.
Case study: SF v Department of Education  QCAT 10
In 2021, a woman sought a review of the Department of Education’s decision to decline her application to home school one of her children because she had not provided her address. The woman and her children had moved to a new location to escape domestic violence and the woman did not disclose her address in order to keep her family safe. One of her children had been diagnosed with a condition affecting their ability to learn. The application to home school this child otherwise met the Department’s requirements but the Department took the view that strict compliance with the Education (General Provisions) Act 2006 (QLD) (‘Education Act’) required that an address be provided.
Queensland’s Civil and Administrative Tribunal determined that the Education Act should be interpreted in a way that least infringes the woman and her family’s rights under QLD’s Human Rights Act, including the child’s right to education (section 36) and the family’s right to privacy (section 25), their right to protection of children and family (section 26) and their right to equal protection of the law without discrimination (section 15). Accordingly, the Tribunal interpreted the Education Act as not requiring the woman to disclose her address in circumstances where it would risk her family’s health and safety.
The Tribunal set aside the Department’s decision and substituted it with a decision to grant the application to home school.
Case study: DP  QCAT 271
In May 2021, a woman made an application for the appointment of a guardian and administrator for her mother (DP). In July, the woman sought an interim order seeking to be appointed as her mother’s guardian and administrator while the application was being processed. Section 129 of the Guardian and Administration Act 2000 (QLD) gives the Tribunal the power to make an interim order only if the Tribunal is satisfied on reasonable grounds that the adult has or may have impaired capacity and there is an immediate risk of harm to the health, welfare or property of the adult.
In considering the application for an interim order, the Tribunal noted that the appointment of a guardian seriously undermines the personal autonomy of an individual and their right to make decisions which significantly affect their life. Furthermore, the appointment of a guardian on an interim basis is a serious step because the usual legal protections and rights of adults do not apply. For example, an adult is not required to be given notice of an application for an interim order and has no opportunity to be heard. Ultimately, while the Tribunal accepted that DP had or may have impaired capacity, it determined that an interim order constituted too great a limit on DP’s rights under QLD’s Human Rights Act, particularly as the Tribunal was not satisfied there was an immediate risk of harm.
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