Obligations under the Victorian Charter of Human Rights

Obligations under the Victorian Charter of Human Rights

The decision of Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 (23 April 2009) confirmed that the Mental Health Review Board (as it then was, under the 1986 Act) and VCAT act in an administrative capacity when reviewing  compulsory treatment orders and therefore act as public authorities. 

Similarly, the Mental Health Tribunal is regarded as a public authority when deciding on treatment orders, applications for ​electroconvulsive treatment (ECT) and so on. This has been confirmed by the Victorian Supreme Court in PBU & NJE v Mental Health Tribunal [2018] VSC 564, which found that ECT hearings engage the right to equality before the law (s 8), freedom from non-consensual treatment (s 10(c)) and the right to privacy.

As such it is unlawful for the Tribunal to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right (s.38). 

The Mental Health Act 2014 allows for significant limitation of Charter rights, but the Charter stipulates this can only be done to the extent that is reasonable taking certain factors (found in s.7) into account.

Under the Charter, the tribunal must:

  • interpret the provisions of the Mental Health Act 2014 (Vic) consistently with human rights protected under the Charter ‘so far as it is possible to do so consistently with their purpose’ (s. 32 of the Charter), and
  • act compatibly with human rights and give proper consideration to relevant human rights (s. 38 and s. 6(2)(b)), including the right to a fair hearing (s. 24 of the Charter).
  • Consider the weighing exercise under s.7 of the Charter, whenever it acts to limit Charter rights 

Section 7(2) of the Charter states that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including— 

        (a)     the nature of the right; and 

        (b)     the importance of the purpose of the limitation; and 

        (c)     the nature and extent of the limitation; and 

        (d)     the relationship between the limitation and its purpose; and 

        (e)     any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

In Kracke Justice Bell held that compulsory mental health treatment constituted a reasonable limitation on Charter rights. This was because the compulsory treatment regime includes a suite of ‘safeguards’ aimed at ensuring that limitations on Charter rights are reasonable and proportionate. 

See AQH [2017] VMHT 24 (5 April 2017)  for an example of the tribunal applying Charter rights to determine that an indigenous person should be treated in the community. The Tribunal had regard to high incarceration rates for Indigenous people in its reasoning.

Examples of Charter rights affected by compulsory treatment and other restrictive interventions:

  • The right not to be subjected to medical treatment without consent (s 10(c))
  • Freedom of movement (s 12)
  • The right to privacy (s 13(a)) and
  • The right to liberty and security of the person (s 21).

Arguably, compulsory treatment also limits the rights to: equality (s 8), freedom of thought (s 14) and freedom of expression (s 15) and others. 

For more case studies and examples see the VLA/Human Right Law Centre Advocacy Guide

For a more extensive discussion of these rights and how they may be engaged see Using the Victoria Charter of Human Rights and Responsibilities .

For information about other rights under the Act and internationally, see Mental health principles and rights of persons affected .

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