: VCAT and the Victorian Charter

VCAT and the Victorian Charter

Eleanore Fritze

On 6 September 2011, the Supreme Court, Court of Appeal handed down its decision in Director of Housing v Sudi [2011] VSCA 266. It decided that VCAT, in an application for a possession order under the Residential Tenancies Act 1997 (Vic), did not have the power to consider whether, by making the application for the possession order, the Director of Housing had complied with s 38(1) of the Charter. Section 38(1) states it is unlawful for a public authority to act in a way that is incompatible with, or fail to give proper consideration to, a relevant human right.

The Court of Appeal determined that consideration of a public authority’s compliance with the Charter can only be made through judicial review proceedings at the Supreme Court, and only where another ground for judicial review exists. Applications to VCAT by a public authority will be assumed to be Charter compliant unless proven otherwise in separate proceedings.

The effect of the decision is that vulnerable and disadvantaged people will find it far more difficult to determine whether limitations on their Charter rights are justified when public authorities make decisions that impact upon them.

ELEANORE FRITZE is a Professional Support Lawyer 
(Civil Law) at Victoria Legal Aid.

(2011) 36(4) AltLJ 286
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