PJB v Melbourne Health

THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2010 3281

P J B

Appellant

MELBOURNE HEALTH

STATE TRUSTEES LTD

First respondent

Second respondent

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2011
DATE OF JUDGMENT:	19 July 2011
CASE MAY BE CITED AS:	Patrick’s Case
MEDIUM NEUTRAL CITATION:	[2011] VSC 327

ADMINISTRATIVE LAW – appeal from Victorian Civil and Administrative Tribunal –appointment of administrator who would probably sell person’s home – whether person unable to make reasonable judgments about their estate when they understood money and were meeting obligations of ownership – whether tribunal erred in law in interpreting appointment provisions – whether appointment power available – interpretation of provisions affecting fundamental common law rights and freedoms and basic human rights – right to choose where to live, against arbitrary interference with home and to own and quietly enjoy property – principle of legality – application to interpretation of general but non-ambiguous provisions – application where legitimate dispute about scope of permitted interference with rights and freedoms – relevance of Convention on the Rights of People with Disabilities – Guardianship and Administration Act 1986 (Vic), ss 4(2), 46(1)-(4) – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 32(1), (1), 38(1),(2), 39(1).

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HUMAN RIGHTS – discretionary appointment of administrator by Victorian Civil and Administrative Tribunal – appeal on grounds of error of law – whether tribunal misinterpreted appointment provisions – interpreting legislation consistently with human rights – scope and application of principle of legality – scope of human rights to equality, to choose where to live, against arbitrary interference with privacy and home and deprivation of property not in accordance with law – jurisprudential value of decisions of Human Rights Committee – whether tribunal a public authority – whether appointment of administrator incompatible with human rights and therefore unlawful – challenging discretionary decisions for human rights unlawfulness in error of law appeals – proportionality – nature and standard of review – intensity of review – whether tribunal to be afforded a ‘margin of appreciation’ or ‘deference’ – weight and latitude in proportionality analysis – ‘arbitrarily’ – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 32(1), (2), 38(1),(2), 39(1).

APPEARANCES:	Counsel	Solicitors
For the appellant	Mr Paul Bingham	Mental Health Legal Centre Inc
For the first respondent	No appearance
For the second respondent	No appearance
For the Attorney-General for the State of Victoria (intervening)	Ms Joanna Davidson	Victorian Government Solicitor’s Office
For the Victorian Equal Opportunity and Human Rights Commission (intervening)	Ms Tessa Van Duyn	Solicitor for the Victorian Equal Opportunity and Human Rights Commission

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................................................................. [1]

GROUNDS OF APPEAL.................................................................................................................................................................. [6]

Notice of appeal............................................................................................................................................................................ [6]

Notice of questions arising under Charter........................................................................................................................... [8]

GUARDIANSHIP AND ADMINISTRATION ACT................................................................................................................. [12]

Purposes and core principles............................................................................................................................................... [12]
Appointing guardians............................................................................................................................................................. [20]
Appointing administrators................................................................................................................................................... [22]
Public Advocate........................................................................................................................................................................ [26]

PROTECTING HUMAN RIGHTS............................................................................................................................................ [31]

Charter......................................................................................................................................................................................... [31]
Human rights engaged........................................................................................................................................................... [36]

Scope of human rights...................................................................................................................................................... [36]
Equality................................................................................................................................................................................ [41]
Freedom of movement...................................................................................................................................................... [45]
Privacy and home.............................................................................................................................................................. [53]
Engagement............................................................................................................................................................... [53]
Human Rights Committee.................................................................................................................................... [64]
'Arbitrarily'................................................................................................................................................................. [74]
Property............................................................................................................................................................................... [87]

Application of Charter to tribunal...................................................................................................................................... [97]

Submissions of parties..................................................................................................................................................... [97]
Guardianship and administration jurisdiction....................................................................................................... [102]
Guardianship list of human rights division............................................................................................................. [106]
Tribunal is a public authority...................................................................................................................................... [109]
Convention on the Rights of Persons with Disabilities....................................................................................... [130]

PROCEEDINGS IN TRIBUNAL.............................................................................................................................................. [138]

Applications............................................................................................................................................................................. [138]
Evidence before tribunal..................................................................................................................................................... [145]

Summary............................................................................................................................................................................ [145]
Program manager........................................................................................................................................................... [148]
Social worker.................................................................................................................................................................... [152]
Consultant treating psychiatrist................................................................................................................................ [166]
Consultant independent psychiatrist......................................................................................................................... [175]
Patrick................................................................................................................................................................................ [179]

Decision of tribunal.............................................................................................................................................................. [186]
Administration order............................................................................................................................................................ [196]

SUBMISSIONS OF PARTIES IN APPEAL.......................................................................................................................... [198]

Appellant.................................................................................................................................................................................. [198]
Attorney-General (on Charter).......................................................................................................................................... [211]

Victorian Equal Opportunity and Human Rights Commission (on Charter)……………………….......[222]

ERROR OF LAW IN INTERPRETING ADMINISTRATOR APPOINTMENT PROVISIONS......................... [234]

Interpreting scope of statutory discretions compatibly with human rights....................................................... [234]
Applying s 32(1) of Charter................................................................................................................................................. [239]
Principle of legality............................................................................................................................................................... [243]
Scope of s 46 of the Guardianship and Administration Act....................................................................................... [273]

ERROR OF LAW IN EXERCISING DISCRETION TO APPOINT ADMINISTRATOR..................................... [290]

Error of law appeals, Wednesbury unreasonableness and human rights........................................................... [290]
Unlawfulness for incompatability with human rights under s 38(1)................................................................... [304]
Weight and latitude............................................................................................................................................................... [318]
Impact of Charter on decision-making under Guardianship and Administration Act..................................... [329]
Was appointing an administrator incompatible with human rights and unlawful?...................................... [335]

(a) Nature of the right..................................................................................................................................................... [335]
(b) Importance of purpose of limitation.................................................................................................................... [340]
(c) Nature and extent of the limitation...................................................................................................................... [345]
(d Relationship between limitation and purpose.................................................................................................... [347]
(e) Less restrictive means.............................................................................................................................................. [352]

CONCLUSION............................................................................................................................................................................... [362]

HIS HONOUR:

INTRODUCTION

Patrick is aged 58 years, suffers from a mental illness and has been an involuntary patient in a hospital operated by Melbourne Health for over ten years. In a stable condition under his compulsory medication, he has met from the hospital the few practical and financial obligations of owning a modest home in a Melbourne suburb.

Patrick wants to return home and live independently in the community. This is quite unrealistic because experience shows he would stop taking his medication, which he wrongly believes he does not need. His mental health would seriously deteriorate, leading to another of his frequent readmissions to hospital and a long, slow recovery. Also, he cannot care for himself properly due to physical disabilities.

The hospital wants to move Patrick to supported accommodation in a hostel, which he opposes. Thinking the move would be more likely to succeed if Patrick did not continue to own his home, the hospital took action to address that issue. It applied to the Victorian Civil and Administrative Tribunal for an administrator to be appointed over his estate.

Under the Guardianship and Administration Act 1986 (Vic), the tribunal decided Patrick was a person with a disability who was unable to make reasonable judgments about his estate and needed an administrator. Accepting Patrick had a ‘very strong connection with his home’, it decided nevertheless that judgments about his estate could not be separated from where it was in his best interests to live. It appointed State Trustees Ltd to be an unlimited administrator, knowing it would probably sell Patrick’s home, rejecting Patrick’s brother, who would not.

In this court, Patrick appeals against the tribunal’s order on a question of law. He contends he manages his finances and home reasonably well and the administration order unjustifiably interferes with his human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). He seeks orders setting aside the appointment and remitting the matter to the tribunal for reconsideration according to law.

GROUNDS OF APPEAL

Notice of appeal

By leave granted by the court, the appeal is brought under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ‘on a question of law’. It has been notified by Melbourne Health and State Trustees that they will not take part in the appeal. No submissions have been received from them on any issues.

The notice of appeal specified eight questions of law, out of which arose eight grounds of appeal. The appeal was conducted by reference to those grounds, which I summarise here:

(1) Taking into account considerations which where not relevant to the proper exercise of the power in s 46 of the Guardianship and Administration Act, being to sell the home to prevent Patrick from behaving in certain ways.

(2) Misinterpreting s 46 by concluding that, on the proper application of that section, appointing the administrator could not be separated from where it was in Patrick’s best interests to live.

(3) Misinterpreting s 46 by concluding an administration order could and should be made if it was in Patrick’s best interests when s 4(2) prevented an order being made unless it was not possible to give effect to his wishes.

(4) Taking into account an irrelevant consideration, being whether Patrick was unwilling or unable to take medication and live independently in the community.

(5) Coming to a conclusion for which there was no evidence, being that a decision needed to be made at the time about whether the house should be sold.

(6) Coming to the conclusion for which there was no evidence that Patrick may or may not be meeting all his financial obligations when the evidence was that he was.

(7) Failing to take into account as a relevant consideration under s 4(2)(c) the wishes of Patrick that his brother should be the administrator if one was to be appointed.

(8) Taking into account a consideration which was not relevant on the proper interpretation of s 46, being that State Trustees would be appointed to be the administrator as Patrick has appointed it to be his executor under his will.

Notice of questions arising under Charter

After considering the submissions made on Patrick’s behalf, I determined that questions of law arose with respect to the application and interpretation of the Charter. At my direction and pursuant to s 35(1), he gave notice of those questions to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission, and also to Melbourne Health and State Trustees.

The questions of law which arose with respect to the application and interpretation of the Charter were specified in the notice as follows:

2(a)The questions of law which arise that relates to the application of the Charter of Human Rights and Responsibilities (‘the Charter’) is:
(i)When exercising its jurisdiction under the Guardianship and Administration Act 1986, and particularly its jurisdiction to appoint an Administrator under s 46(1), is the Tribunal acting as a public authority under the Charter within ss 4(1) and ss 38(1)?
(ii)In an appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 raising human rights issues of this kind, should the Court afford what, if any, margin of appreciation to the decision of the Tribunal and does the decision of the Tribunal in the present case come within or exceed any such margin?

2(b)The questions which arise with respect to the interpretation of a statutory provision in accordance with the Charter:-
(i)Accepting the authority of R v Momcilovic (2010) 265 ALR 751, and given the requirement in s 32(1) of the Charter to interpret the provisions of the Guardianship and Administration Act 1986 so far as it is possible to do so, consistently with their purpose, in a manner that is compatible with human rights, what is the proper interpretation of ss 4(2) and ss 46(1) of the Guardianship and Administration Act 1986 and did the Tribunal so interpret those provisions?
(ii)On the proper interpretation of those provisions, was the Tribunal required to exercise its discretion to appoint an Administrator in a manner that was compatible with the human rights of the person in terms of s 7(2) of the Charter?;

3Did the Tribunal so exercise that discretion?

In response to the notice, the court has received written submissions about the application and interpretation of the Charter from Patrick, the Attorney-General and the commission. The Attorney-General and the commission have confined themselves to the issues of principle which were raised and have not gone into the merits of the appeal. The court has not received submissions on those issues from Melbourne Health or State Trustees.

I will begin with the legal framework governing the order which the tribunal made.

GUARDIANSHIP AND ADMINISTRATION ACT
Purposes and core principles

The purpose of the Guardianship and Administration Act is to enable persons with a disability to have a guardian or administrator appointed if they need one (s 1).[1] The objects of the Act include providing for the appointment of a Public Advocate (s 4(1)(b)) and enabling the making of guardianship and administration orders (s 4(1)(c)). The provisions of the Act show it has the broader purpose of enabling the interests of persons whose faculties are impaired by disability to be protected when they cannot make reasonable judgments themselves by reason of the disability and need someone to do so for them. As the Full Court of the Supreme Court of Western Australia said of analogous legislation in Re Guardianship and Administration Board,[2] the purpose of such legislation is:

to ensure that [the person’s] financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection. [3]

[1]Section 1 defines ‘disability’ exhaustively to mean ‘intellectual impairment, mental disorder, brain injury, physical disability or dementia’.

[2](2003) 27 WAR 475.

[3]Ibid, 490 (EM Heenan J, Anderson, Steytler, Miller and McLure JJ agreeing).

Under s 4(2), three core principles – the least restrictive means, the best interests of the person and the wishes of the person – determine decision-making under the Guardianship and Administration Act. As Cavanough J held in XYZ v State Trustee Ltd,[4] the principles apply without qualification to the exercise of all powers and discretions under the Act, including the appointment of administrators in s 46(1). The principal of personal autonomy must be taken into account under other provisions.[5]
[4](2006) 25 VAR 402, [34]-[35].
[5]Sections 15(a)(i), 28(2)(b) and (c) and 49(2)(a).

The least restrictive means principle requires the adoption of means which are the least restrictive of the freedom of decision and action of the person with the disability (s 4(2)(a)). The significance of this principle has been repeatedly emphasised by this court, as by Fullagar, Tadgell and JD Phillips JJA in McDonald v Guardianship and Administration Board:

Consideration must be given to the question whether other and less restrictive means than an administration order might meet the need of the [represented person]. Moreover, if an administration order is made, the order must be that which is in the circumstances the least restrictive of the freedom of decision and action of the [person]. Plainly enough, the [legislation] recognises that administration orders may be designed to vary in their reach and their intrusiveness; and it is expected that any administration order made will be tailored to the circumstances, being privative only the extent actually required. [6]

[6][1993] 1 VR 521, 531-532.

As well as being specified in the general provisions of s 4(2)(a), this principle is specified in particular provisions of the Act. It is a function of the public advocate to promote the provision of services which minimise the restrictions on the rights of persons with a disability (s 15(a)(ii)). An order for the appointment of a guardian (s 22(2)(a) and (5)) or administrator (s 46(2)(a) and (4)) cannot be made without considering, and any order must implement, the least restrictive means principle.

The best interests of the person principle requires the best interests of the person with a disability to be promoted (s 4(2)(b)). It is the primary principle in relation to the making and operation of guardianship and administration orders. Thus, orders for the appointment of a guardian (s 22(3)) or administrator (s 46(3)) cannot be made without the tribunal being satisfied that the order is in the best interests of that person. To be eligible for appointment as a guardian (s 23(1)(a)) or an administrator (s 47(1)(c)(i)), the person must satisfy the tribunal that they will act in the best interests of the person. The primary obligation of a guardian (s 28(1)) and administrator (s 49(1)) is to exercise their powers in the best interests of the person.

The wishes of the person principle is that the wishes of the person with the disability are to be given effect to wherever possible (s 4(2)(c)). The court has also repeatedly stressed its importance.[7] In making an order by way of guardianship (s 22(2)(a)) or administration (s 46(2)(b)), the wishes of the person with the disability must be considered, where ascertainable.[8] So too in determining who is to be a guardian (s 23(2)(ab)) or an administrator (s 46(2)(b)). Guardians (s 28(2)(e)) and administrators (s 49(2)(b)) must exercise their powers in consultation with the person as far as possible, subject to their primary responsibility to act in their best interests (ss 28(1) and 49(1)).
[7]Moore v Guardianship and Administration Board [1990] VR 902, 916-917 (Gobbo J); Qumsieh v Guardianship and Administration Board [1998] VSCA 45, [6] (Winneke P. Brooking and Ormiston JJA); XYZ v State Trustees Ltd (2006) 25 VAR 402, [29], [33]-[34] (Cavanough J).
[8]Section 46(2)(b) was introduced by the Guardianship and Administration (Further Amendment) Act 2006 (Vic), making explicit what Cavanough J found to be implicit in XYZ v State Trustees Ltd (2006) 25 VAR 402, [34].

Personal autonomy is inherent in the least restrictive means and the wishes of the person principles. The purpose of requiring the adoption of the least restrictive means is to leave the person with as much personal autonomy as possible over their personal and financial affairs. The same value is inherent in the requirement to give effect to the person’s wishes, where ascertainable and wherever possible. Specific provisions of the Act emphasise the importance of promoting, maintaining and enhancing the personal autonomy of persons with a disability. It is a function of the public advocate to facilitate the provision of services which promote the development and ability of persons with a disability to act independently (s 15(a)(i)). Orders for guardianship (s 22(1)(b)) and administration (s 46(1)(a)(ii)) can only be made when the person is unable, by reason of their disability, to make reasonable judgments for themselves. I have already referred to the application of the least restrictive means principle and the wishes of the person principle when making and administering such orders. Further, a guardian (s 28(2)(c)) and administrator (s 49(2)(a)) must exercise their powers in such a way that, as far as possible, encourages and assists the person to make reasonable judgments themselves. However, the best interests of the person is the primary consideration.

In McDonald v Guardianship and Administration Board,[9] Fullagar, Tadgell and JD Phillips JJA said:

Guardianship and administration orders are calculated to achieve, at the instance of any person at all, a far-reaching deprivation of the freedom of action not only of represented persons but or near relatives of such persons. This is not to deny that there may be cases where the jurisdiction [to make such orders] may be justifiably invoked. The [legislation], however, prescribes very important safeguards against the making of inappropriate guardianship and administration orders.[10]

It is the core principles that prescribe those safeguards.

[9][1993] 1 VR 521.

[10]Ibid, 530.

Appointing guardians

Section 22(1) permits a guardian to be appointed by order if the tribunal is satisfied that the person has a disability, ‘is unable by reason of the disability to make reasonable judgments in respect of all or any of the matters relating to his or her person or circumstances’ and is in need of a guardian. The core principles and personal autonomy must be considered.[11] There are provisions governing eligibility to be a guardian which reflect the personal nature of their responsibilities.[12]
[11]Section 22(2)-(5).
[12]Section 23.

Under the provisions, a guardian may be appointed with plenary[13] or limited[14] powers. A plenary guardian has all the powers and duties of a parent with respect to a child,[15] including the power to decide where[16] and with whom[17] the person is to live, whether and what work the person is to do[18] and what health care should be provided in their best interests.[19] The administrator can legally substitute their decisions for those of the person in every respect in relation to matters within their authority as guardians,[20] but must always act in their best interests[21] and as far as possible respecting their personal autonomy and wishes.[22] These provisions thus deal with matters concerning the accommodation, care and circumstances of the person rather than matters relating to their property and estate.
[13]Section 24(1).
[14]Section 25.
[15]Section 24(1).
[16]Section 24(2)(a).
[17]Section 24(2)(b).
[18]Section 24(2)(c).
[19]Section 24(2)(d).
[20]Section 24(2).
[21]Section 28(1)
[22]Section 28(2).

Appointing administrators

The unlimited administrator was appointed to Patrick’s estate by order under s 46(1)-(4) of the Guardianship and Administration Act. To make such an appointment, s 46(1)(a) requires the tribunal to be satisfied that:

the person in respect of whom an application for an order appointing an administrator is made –

(i)is a person with a disability; and
(ii)is unable to make reasonable judgments in respect of the matters relating to any part of her or his estate by reason of the disability; and
(iii)is in need of an administrator of her or his estate; …

The power in s 46(1) is discretionary. As Cavanough J held in XYZ v State Trustees Ltd,[23] s 46(1)(a) specifies ‘three separate and cumulative requirements’. That the tribunal is satisfied of the matters referred to in s 46(1)(a) is a condition precedent to the jurisdiction to exercise that discretion. Only if those requirements are satisfied does the discretion to appoint an administrator arise. In determining whether the person is in need of an administrator, and in making any order, the tribunal must specifically consider and apply the core principles (ss 4(2)(a),(b) and (c) and 46(2)(a) and (b), (3) and (4)).
[23](2006) 25 VAR 402, [44].

The purpose for appointing an administrator has been considered. In Edwards v Edwards,[24] J Forrest J held an administrator under the Guardianship and Administration Act was ‘responsible for preserving and protecting the assets of the represented person’. In Re Guardianship and Administration Board,[25] the court said an administrator under analogous legislation was responsible for:

conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated ... [and] in cases where expenditure or imminent disposition of property are necessary or advantageous, … scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration. [26]

[24](2009) 25 VR 40, [12]

[25](2003) 27 WAR 475.

[26]Ibid, 490 (EM Heenan J, Anderson, Steytler, Miller and McLure JJ agreeing).

Under the Guardianship and Administration Act, an administrator may be appointed with limited or unlimited powers.[27] One with unlimited powers ‘has the general care and management of the estate of a represented person.’[28] For that purpose, the administrator has the power to take possession of[29] and sell[30] the person’s property, to collect their income[31] and execute and sign documents on their behalf.[32] Ownership of the property of the person is not thereby transferred to or vested in the administrator as such, but it becomes totally and exclusively managed and controlled by them and the person loses their capacity to deal with their property in every way.[33] The administrator can legally substitute their decisions for those of the person in every respect in relation to their estate,[34] but must always act in their best interests[35] and as far as possible respecting their personal autonomy and wishes.[36]
[27]Section 48(1).
[28]Section 58B(1)(a).
[29]Section 58B(1)(b).
[30]Section 58B(2)(g).
[31]Section 58B(2)(a).
[32]Section 58B(2)(m).
[33]Section 52(1)-(2) (the interests of third-parties acting bona fide and without notice are protected by s 52(3)).
[34]Section 48(3).
[35]Section 49(1).
[36]Section 49(2)(a) and (b).

Public Advocate

It is a purpose of the Guardianship and Administration Act to provide for the appointment of a public advocate (s 4(1)(b)). The public advocate is appointed by the Governor in Council for a period of seven years (s 14(1), (2) and cl (1)(a)(b) of Schedule 3) and must take an oath or make an affirmation of office (cl 3 of Schedule 3).

The functions of the public advocate are to promote and facilitate the provision of services and facilities for persons with a disability (s 15(a)), to promote public awareness of the legislation and the need to protect these persons from abuse and exploitation, to protect their rights (s 15(c)) and to conduct investigations and report to the responsible minister (s 15(d)).

The powers and duties of the public advocate include being appointed as a guardian or administrator (s 16(1)(a)), making applications to the tribunal for the appointment of a guardian or administrator (s 16(1)(b)), submitting reports to the tribunal (s 16(1)(d)), advocating on behalf of persons with a disability (s 16(1)(e)(f)) and investigating complaints or allegations concerning their alleged exploitation or abuse (s 16(1)(h)). The advocate has powers of visitation (s 27(1)), to obtain information from people, governments and service providers for the purposes of investigations concerning persons with a disability (s 16(1)(ha)) and to inspect premises (s 18A(1)(a)) and records (s 18A(1)(d)).

These powers and duties are supplemented by the provisions of the Victorian Civil and Administrative Tribunal Act. By cl 33 of Schedule 1 of that Act, the public advocate may intervene and is entitled to be joined as a party to a proceeding under the Guardianship and Administration Act. By cl 35, the tribunal may refer a matter to the public advocate for investigation and report (sub-s (1)), which the public advocate must carry out (sub-s 2)) and the tribunal must consider (sub-s (3)).

The tribunal was also operating within a human rights framework, as follows.

PROTECTING HUMAN RIGHTS

Charter

The main purpose of the Charter of Human Rights and Responsibilities Act is ‘to protect and promote human rights’.[37] The Charter is based on the fundamental principle, expressed in the Preamble, that ‘all people are born free and equal in dignity and rights’ and ‘human rights are essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom’.
[37]Section 1(2)(a) - (e).

The bedrock value of human rights is that every individual without exception has a unique human dignity which is their birthright. The dignity of the individual and their entitlement to human rights protection ‘cannot be separated from universal human nature’[38] and is to be respected whether the person is able or disabled. This principle was stated with pellucid clarity by Brennan J in Marion’s Case which, like the present, concerned the human rights of a person with a mental disability:

Human dignity is a value common to our municipal law and to international instruments relating to human rights. The law will protect equally the dignity of the hale and hearty and the dignity of the weak and lame; of the frail baby and of the frail aged; of the intellectually able and of the intellectually disabled. Thus municipal law satisfies the requirement of the first paragraph of the 1971 United Nations Declaration on the Rights of Mentally Retarded Persons which reads:
‘The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.’

Our law admits of no discrimination against the weak and disadvantaged in their human dignity. Intellectual disability justifies no impairment of human dignity, no invasion of the right to personal integrity. [39]

[38]South West Africa Cases (2^nd Phase) [1966] ICJR 6, 297 (Judge Tanaka).

[39]Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218, 266.

The different treatment of people because of their disability and not their individual needs gives rise to a grievous loss of dignity and personal self-worth, as well as a deep sense of grievance. People who are treated to their disadvantage by reference to their disabled attribute and not as valuable individuals are thereby made to feel reduced and stigmatised. The harm which this causes to the individual was explained by Iacobucci J in Law v Canada:

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within … society. [40]

[40][1999] 1 SCR 497, [53].

The Charter provides a framework for protecting and promoting the human rights of all natural persons,[41] including persons with a disability. It does so by specifying the relevant rights in Part 2 (ss 7-27), requiring legislation to be interpreted compatibly with those rights, if it can be (s 32(1)), establishing a scrutiny mechanism to ensure the human rights compatibility of new legislation (ss 28-30), requiring a public authority to act compatibly with human rights, subject to contrary law (s 38(1) and (2)) and conferring certain additional functions on the Victorian Human Rights and Equal Opportunity Commission (ss 40-43).
[41]Section 6(1) provides that only persons have human rights. Section 3(1) defines ‘person’ to mean ‘a human being’.

The engagement of human rights in the Charter brings into operation the principle of interpretation in s 32(1) and the obligation of public authorities in s 38(1) to act compatibly with human rights (subject to contrary law: s 38(2)), which are both issues in the appeal. It is therefore necessary to identify which human rights were engaged and whether the tribunal was a public authority when it made the administration order.

Human rights engaged

Scope of human rights

Human rights are engaged when the act or decision of a public authority places limitations or restrictions on, or interferes with, the human rights of a person. For the purpose of determining whether there is such a limitation, restriction or interference, rights are interpreted purposively and, in the words of Warren CJ in Re Application under the Major Crime (Investigative Powers) Act 2004,[42] ‘in the broadest possible way’. Following that decision, Hargrave J said in Director of Public Prosecutions v Ali (No 2) that the general approach was to interpret the rights in the Charter ‘broadly and in a non-technical sense.’[43] Speaking of the New Zealand Bill of Rights Act 1990, Elias CJ said in R v Hansen[44] that the ‘meaning of the right is to be ascertained from the “cardinal values” it embodies.’ In reference to the Canadian Charter of Rights and Freedoms, Dickson J said in R v Big M Drug Mart Ltd[45] that the ‘meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.’ Reasonable and demonstrable limitation of the right is not taken into account when identifying its scope.[46]
[42](2009) 24 VR 415, [80]; followed in Castles v Secretary to the Department of Justice [2010] VSC 310, [55] (Emerton J).
[43][2010] VSC 503, [29].
[44][2007] 3 NZLR 1, [22].
[45][1985] 1 SCR 295, [116].
[46]See generally Re Kracke and Mental Health Review Board (2009) 29 VAR 1, [75]-[91] (Bell J); Director of Housing v Sudi [2010] VCAT 328, [90] (Bell J).

In the present case, the tribunal appointed an unlimited administrator to Patrick’s estate, which consisted mainly of his home. The tribunal correctly decided he was a person with a disability by reason of his mental ill-health. It decided he was not capable of making reasonable decisions about his estate by reason of that disability. By force of statute, the appointment of the administrator transferred complete management and control of Patrick’s estate exclusively to the administrator.

The potentially grave impact of an administration order on an individual cannot be doubted. As was held by Fullagar, Tadgell and JD Phillips JJA in McDonald v Guardianship and Administration Board:[47] ‘Guardianship and administration orders are calculated to achieve, at the instance of any person at all, a far-reaching deprivation of the freedom of action … of represented persons’. Their Honours went on to say:[48] ‘The appointment of an administrator under the [legislation] is also obviously capable of being gravely intrusive upon the rights of a represented person’. In XYZ v State Trustees Ltd,[49] Cavanough J said statutory administration affected the ‘civil liberties and … dignity’ of the individual. It is now necessary to look more closely at the nature of this impact.
[47][1993] 1 VR 521, 530.
[48]Ibid, 531-532.
[49](2006) 25 VAR 402, [43].

The tribunal did not identify which of Patrick’s human rights were engaged but it did proceed on the basis that his human rights were affected and that the interference had to be justified.

Patrick submitted that the rights engaged were freedom of movement (s 12), privacy and home (s 13) and property (s 20). The commission relied on equality (s 8), freedom of movement and privacy. The Attorney-General submitted the principal right engaged was privacy and home.

Equality

Section 8(3) of the Charter specifies the human right to ‘the equal protection of the law without discrimination’ and to ‘effective protection against discrimination’. The discrimination to which this right refers is discrimination within the meaning, and on the basis of the attributes listed in s 6, of the Equal Opportunity Act 1995 (Vic).[50] Those attributes include ‘impairment’, which is itself defined in s 4(1) to include ‘a mental or psychological disease or disorder’.
[50]Definition of ‘discrimination’ in s 3(1) of the Charter.

I analysed the scope and application of the equality right in Lifestyle Communities Ltd (No 3).[51] It is sufficient to say here that it is a right of fundamental importance which is high in the hierarchy of rights recognised in the Charter.
[51][2009] VCAT 1869, [105]ff.

The provisions of the Guardianship and Administration Act allowing for the appointment of an administrator to the estate of a person with a disability are directed at and therefore discriminatory in their application towards persons with a mental illness, like Patrick. As he is suffering from a mental disorder, he is a person with a disability under s 3(1) of that Act. By reason of having the attribute of being disabled in that manner, he is liable to have an administrator appointed in respect of his estate when a person without that attribute would not be so liable.[52] When the administrator was appointed, the equality right in s 8(3) was therefore engaged.
[52]Section 8(1) of the Equal Opportunity Act.

The Guardianship and Administration Act is but one of many statutes which are discriminatory in this sense for the very reason that it is directed at this category of person. Being enacted to provide necessary protection for and meet the special needs of people with disabilities, the human rights limitations in the legislation would in general terms be justified under s 7(2) of the Charter. But the engagement of the equality right in s 8(3) has consequences which still must be considered, both in terms of the interpretation of the specific provisions of the Guardianship and Administration Act and the lawfulness of the particular exercise of the powers and discretions which they confer. The values and interests represented andprotected by the human right to equality are at the heart of Patrick’s complaints.

Freedom of movement

Section 12 of the Charter provides that ‘[e]very person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live’.

I identified the scope of the right to freedom of movement in Re Kracke and Mental Health Review Board.[53] It protects a person’s liberty of movement in Victoria and their freedom to choose where to live.
[53][2009] 29 VAR 1, [578]-[588].

Patrick is not currently free to move freely within Victoria, or to choose where to live, because he lives in detention in a hospital pursuant to an involuntary treatment order made under the Mental Health Ac 1986 (Vic). But the appointment of the administrator over his estate will probably restrict his future choice of where to live because the administrator is likely to sell his home. The tribunal did not find, and the evidence does not establish, that Patrick will never be well enough to return to his home. His strong connection with his home has not been severed, indeed quite the contrary.

Section 12 of the Charter reflects the correlative right in art 12 of the International Covenant on Civil and Political Rights.[54] For the reasons I give below, in determining the scope of the former I will here take into account the general comments and findings of the Human Rights Committee in relation to the scope of the latter.
[54]Opened for signature 16 December 1966, 999 UNTS 171 (entry into force 23 March 1976, in accordance with Article 49).

Of art 12 of the covenant, General Comment 27 states (among other things) that it protects the right of persons ‘to establish themselves in a place of their choice’[55] and ‘to reside in a place of one’s choice’.[56] For a woman (and therefore for all people), it protects her right ‘to choose her residence’.[57]
[55]Officer of the High Commissioner for Human Rights, Human Rights Committee, General Comment 27 (1999), [5].
[56]Ibid [7].
[57]Ibid [6].

The committee has interpreted art 12 as conferring a right to choose to live in a particular place, not just in a particular area. Thus, in Lovelace v Canada,[58] a statutory restriction on the right of a Canadian Indian to live in a particular reserve was found to interfere with this right (although in a justified way).[59] Accordingly, a leading text describes the freedom of choice of residence as ‘a freedom to set up permanent or temporary residence at any location within a State Parties territory.’[60]
[58]Communication No 24/1977: Canada, 30/7/1981, CCPR/C/13/D/24/1977.
[59]Ibid [16].
[60]Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2004) [12.06].

As with the right to home in s 13(a), whether there has been an interference with the right to freedom of movement in s 12 should be approached in a simple and non-technical manner. Such interference can be caused directly or indirectly by a process of law and seeking or attempting to activate such processes are also encompassed (see below).[61]
[61]Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328, [34] (Bell J).

Where a person resides in their own home and wishes to continue to do so, taking legal steps to transfer complete and exclusive management and control of the home to an administrator, including the power to sell the home against the person’s wishes, and actually effecting such a transfer by the appointment of an administrator, represents an interference with their freedom to choose where to live. Where a person is in mental health detention, wishes to return to their home as their choice of residence and their connection with the home has not been severed, taking those steps or effecting such a transfer is likewise an interference with that freedom. The right to freedom of movement in s 12 is therefore engaged in the circumstances of this case.

Privacy and home

Engagement

Section 13(a) of the Charter provides: ‘A person has the right – (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’. Due to their special needs and vulnerability, people with a mental illness are at particular risk of interference with their human rights to privacy and home. An important purpose of the Charter is to afford due protection against that interference, where it is arbitrary or unlawful. As Emerton J said in Castles v Secretary, Department of Justice,[62] the right to privacy is ‘of considerable amplitude’.
[62][2010] VSC 310, [79].

In Re Kracke and Mental Health Review Board, I identified the scope of the right to privacy in s 13(a) of the Charter as follows:

The purpose of the right to privacy is to protect people from unjustified interference with their personal and social individuality and identity. It protects the individual’s interest in the freedom of their personal and social sphere in the broad sense. This encompasses their right to individual identity (including sexual identity) and personal development, to establish and develop meaningful social relations and to physical and psychological integrity, including personal security and mental stability.
The fundamental values which the right to privacy expresses are the physical and psychological integrity, the individual and social identity and the autonomy and inherent dignity of the person.[63]
[63](2009) 29 VAR 1, [619]-[620].

Later, in Director of Housing v Sudi,[64] I described the rights in s 13(a) in full:

The rights to privacy, family, home and correspondence in section 13 (a) are of fundamental importance to the scheme of the Charter. The purpose of the rights is to protect and enhance the liberty of the person - the existence, autonomy, security and wellbeing of every individual in their own private sphere. The rights ensure everybody can develop individually, socially and spiritually in that sphere, which provides the civil foundation for their effective participation in democratic society. The rights protect those attributes which are private to all individuals, that domain which may be called their home, the intimate relations which they have in their family and that capacity for communication (by whatever means) with others which is their correspondence, each of which is indispensable for their personal actuation, freedom of expression and social engagement.[65]

[64][2010] VCAT 328,[29].

[65]See generally Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2^nd rev ed, 2005) 377 ff.

The purpose of the human right against arbitrary or unlawful interference with the home is the protection of the security and autonomy of the person in their home. It is in their home that a person is able to be themselves in the private and personal sense. That is fundamentally important for the person’s social and family life and the attainment of their full potential as an individual. The great personal significance of the home to the individual is amply demonstrated by the present case. Patrick is much attached to his home. It is where he spent many years being a husband and step-father.

Patrick is not presently living in his home. He is living in a psychiatric hospital as an involuntary patient under an order made pursuant to the Mental Health Act1986. He has been living in the hospital for some years and is not expected to return to the community in the near future. This raises the question whether his house is his home for the purposes of s 13(a) of the Charter.

In Director of Housing v Sudi, I identified how a person’s home is to be identified for human rights purposes:

In human rights, identifying a person’s ‘home’ is approached in a common-sense and pragmatic way. It depends on the person showing ‘sufficient and continuous links with a place in order to establish that it is his home’.[66] Manfred Nowak, speaking of article 17(1) of the ICCPR, says ‘the home symbolises a place of refuge where one can develop and enjoy domestic peace, harmony and warmth without fear of disturbance.’[67] If someone’s links with the place where they live are ‘close enough and continuous enough’, that is their home.[68] The general approach is ‘to apply a simple, factual and untechnical test, taking full account of the factual circumstances but with very little of legal niceties.’[69] The concept of ‘home’ in human rights is autonomous[70] and is not based on ‘domestic notions of title, legal and equitable rights, and interests’[71] In short, it is a question of fact, not law. [72]

[66]Harrow London Borough Council v Qazi [2004] 1 AC 983, [9] (Lord Bingham), [67] (Lord Hope) (approving Buckley v United Kingdom (1996) 23 EHRR 101 and other Strasbourg authorities).

[67]Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2^nd rev ed, 2005) 399.

[68]Kay v Lambeth London Borough Council [2006] 2 AC 465, [28] (Lord Bingham).

[69]Ibid [10] (Lord Bingham).

[70]Ibid [61] (Lord Hope).

[71]Ibid [27] (Lord Stein).

[72][2010] VCAT 328,[32].

Applying these principles here, Patrick’s house is his home for the purposes of the human right to home in s 13(a) of the Charter though he is not living there by reason of his involuntary detention in a psychiatric hospital. He owns the house (with the public housing authority), sees it as his home and has continuous links with it. It is not an investment property. It has not been leased, temporarily or at all. Patrick is meeting the financial obligations of an owner. It is where he had many years of married life and was a father to his step-children. As the tribunal found, he has a ‘very strong connection with his home’. His domestic occupation of the house has only been disturbed by his mental illness and its consequences.

The house being Patrick’s home for the purpose of this human right, it is next necessary to determine whether the appointment of the administrator constituted a limitation, restriction or interference with that right.

Also in Director of Housing v Sudi, I identified how the question of interference with home is to be determined:[73]

Likewise, the question of what amounts to an ‘interference’ with the rights in s 13(a) is approached in a ‘simple and untechnical’ manner.[74] This is Manfred Nowak, again speaking of article 17(1) of the ICCPR: ‘Every invasion of that sphere paraphrased by the term “home” that occurs without the consent of the individual affected... represents interference.’[75] Evicting or seeking to evict someone living in social housing is interfering with the human rights relating to their home.[76] Any attempt to do so, directly or indirectly or by process of law, constitutes such interference.[77] Serving a notice to quit and bringing possession proceedings constitute such interference.[78] The latter is especially applicable in the present case. Where a family is living in the premises, such actions also constitute an interference with the human rights relating to their family.[79] Other decisions which deprive a person of, or impair their capacity to live in, their home also constitute an interference, such as denying them planning permission[80] and undertaking enforcement measures,[81] and withdrawing a permission already held, rendering people homeless.[82]

[73][2010] VCAT 328,[34].

[74]Harrow London Borough Council v Qazi [2004] 1 AC 983, [12] (Lord Bingham).

[75]Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2^nd rev ed, 2005) 400

[76]Harrow London Borough Council v Qazi [2004] 1 AC 983, [23] (Lord Bingham); Kay v Lambeth London Borough Council [2006] 2 AC 465, [28] (Lord Bingham).

[77]Harrow London Borough Council v Qazi [2004] 1 AC 983, [70] (Lord Hope, citing Lambeth London Borough Council v Howard (2001) 33 HLR 58, [30] (Sedley LJ).

[78]McCann v United Kingdom [2008] ECHR 385, [47].

[79]Harrow London Borough Council v Qazi [2004] 1 AC 983,[70] (Lord Hope, citing Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 70, [67] (Lord Woolf CJ).

[80]Buckley v United Kingdom (1997) 23 EHRR 101, [60] and [81].

[81]Chapman v United Kingdom [2001] 33 EHRR 18, [78].

[82]Connors v United Kingdom (2005) 40 EHRR 9.

The appointment of an unlimited and exclusive administrator to a person’s estate removes their capacity to control and manage their own property and financial affairs, including that property which is their home. The administrator can exercise a power of sale of the property even against the wishes of the person. In the present case, the tribunal acknowledged the appointment of the administrator would probably result in the sale of Patrick’s home, against his wishes. That was a practical purpose of the appointment. Appointing an administrator over Patrick’s estate was therefore an interference with his human right to home in s 13(a) of the Charter.

In the circumstances, appointing the administrator engaged Patrick’s human rights to privacy and home in s 13(a) of the Charter.

An issue arises as the meaning of the term ‘arbitrarily’ in s 13(a) and, in that context, the relevance and weight to be given to the opinions of the Human Rights Committee in relation to the same term in art 17(1) of the covenant. In WMB v Chief Commissioner of Police,[83] Kaye J doubted the jurisprudential value of findings of the committee and declined to follow its views on the concept of arbitrariness in the covenant as these might assist in the interpretation of 13(a). I will consider those issues here.

Human Rights Committee

[83][2010] VSC 219, [49].

The weight to be attached to the opinions of the committee is an important question. It influences the interpretation and therefore the scope of the human rights protection which is afforded by s 13(a) and other provisions of the Charter.

The committee is established by the covenant, under which it has 18 members[84] who are elected by secret ballot[85] and serve in their personal capacity[86] for four years.[87] Members are eligible for re-election.[88] Only ‘persons of high moral character and recognised competence’[89] are eligible for membership of the committee. It has a secretariat which is provided by the United Nations in New York but it is not a formal part of that organisation.
[84]Article 28(1).
[85]Article 29(1).
[86]Article 28(2).
[87]Article 32(1).
[88]Ibid.
[89]Article 28(3).

The main work of the committee is to receive and consider reports from the state parties to the covenant in relation to giving effect to the rights in the covenant.[90] As one such party, Australia provides these reports, which the committee considers and comments on. Provision of reports is mandatory, which enables the committee ‘to monitor states compliance with the rights created in the covenant’.[91] The committee may also provide general comments to state parties on the proper interpretation and application of the covenant.[92] Under the Optional Protocol to the covenant, which Australia has also ratified, the committee can receive and consider complaints from individuals that their rights under the covenant have been violated.[93]
[90]Article 40(1) and (4).
[91]Caroline Evans and Simon Evans, Australian Bills of Rights (2008) [6.40].
[92]Article 40(4).
[93]Article 2.

In his ‘authoritative commentary’[94] on the covenant, Professor Manfred Nowak describes the committee as a ‘quasi-judicial organ’,[95] being ‘a body of experts largely independent of the UN and State parties’.[96] As it is not a court, its decisions do not have internationally binding effect.[97] But as a ‘relatively autonomous treaty-based organ’,[98] it is not part of the political framework of the United Nations and its opinions on the scope and operation of the covenant are highly influential. In his oft-cited commentary, Professor Nowak draws heavily on the jurisprudence of the committee.
[94]Minister for Immigration Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, [143] (Black CJ, Sundberg and Weinberg JJ).
[95]Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2^nd ed, 2005) 669.
[96]Ibid 668.
[97]Ibid 669.
[98]Ibid.

In their book on the Charter and the Human Rights Act 2004 (ACT), Caroline Evans and Simon Evans discuss the committee in relation to human rights law in Australia. They point out that recently the committee has been comprised of a majority of people having post-graduate degrees in law from leading international universities, current or former professors of international human rights law and former chief justices of domestic, supreme or constitutional courts.[99] Due to the independence and expert qualifications of the committee members, its work is ‘far less tainted by politics that many of the other parts of the United Nations human rights system’.[100] In consequence:

The decisions of the committee are … the closest thing to United Nations case law for the ICCPR, and are useful as they reflect the authoritative and independent views of a group of experts on international human rights law. [101]

[99]Caroline Evans and Simon Evans, Australian Bills of Rights (2008) [640] – [645].

[100]Ibid [6.40].

[101]Ibid [6.44].

A standard international text[102] of cases, materials and commentary on the covenant and the committee contains a description of the composition, work and function of the committee on which I have drawn here. The findings and general comments of the committee are set out and discussed at length as international law jurisprudence. The authors say the work of the committee is ‘not overly politicised’ and they refer to certain safeguards to ensure its ‘political impartiality’.[103] Of the members in 2003, they say ‘almost all … have expert human rights qualifications, and no direct connections with their governments.’[104] Therefore the committee fulfilled ‘the requisite criteria of independence and expertise.’[105]
[102]Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Material and Commentary (2^nd ed, 2004).
[103]Ibid, [1.33].
[104]Ibid, [1.34].
[105]Ibid.

When called on to interpret the covenant in a domestic setting, Australian courts have frequently made reference to the findings and general comments of the committee. I would refer, for example, to the judgments of Mason CJ and McHugh J, and Dawson J, in Dietrich v R,[106] McHugh J (a ‘body of international jurisprudence’) in Woolley; Ex parte Applicants M276/2003[107] and Kirby J in that[108] and other[109] cases. In the states and territories there is McMurdo P (‘an expert committee’) and Philippides J in Aurukun Shire Council v Chief Executive Officer of Liquor, Gaming and Racing[110] and Refshauge J in Blundell v Sentence Administration Board (ACT).[111] Black CJ, Sundberg and Weinberg JJ considered the jurisprudential value of the views of the committee in Minister for Immigration Multicultural and Indigenous Affairs v Al Masri.[112] Accepting the opinions of the committee did not have precedential authority in Australian courts, their Honours said it was nonetheless ‘legitimate to have regard to them as the opinions of an expert body established by the [covenant]’.[113] Referring to the approach adopted in relation to other treaties,[114] their Honours said it was also appropriate to have regard to ‘works of scholarship in the field of international law, including opinions based on the jurisprudence developed within international bodies, such as the committee’.[115] They included the commentary of Professor Manfred Nowak in that category.
[106](1992) 177 CLR 292, 306-307 (Mason CJ and McHugh J), 348 (Dawson J).
[107](2004) 225 CLR 1, [109].
[108]Ibid [200]-[207].
[109]Cornwell v The Queen (2007) 231 CLR 260, 321; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 128; Vasiljkovic v The Commonwealth (2006) 227 CLR 614, 662-663. Cf Al-Kateb v Godwin (2004) 219 CLR 562, 642 (Hayne J) and Roach v Electoral Commissioner (2007) 233 CLR 162, 225 (Heydon J).
[110](2010) 237 FLR 369, [34] (McMurdo P), [241] (Philippides J).
[111](2010) 245 FLR 424, [169].
[112](2003) 126 FCR 54.
[113]Ibid [148].
[114]Johnson v Johnson (2000) 201 CLR 488, 501-502 (Kirby J); Commonwealth v Hamilton (2000) 108 FCR 378, 387 (Katz J citing Commonwealth v Bradley (1999) 95 FCR 218, 237 (Black CJ)); R v Sin Yau-Ming [1992] 1 HKCLR 127, 141 (Silke VP, Kempster and Penlington JJA)).
[115](2003) 126 FCR 54, [148].

In this court, Vickery J[116] and Emerton J[117] have noted s 32(2) of the Charter and relied on the findings and general comments of the committee, and other international jurisprudence, when interpreting the Charter. With respect, I join with Emerton J in saying ‘[t]his is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in an international context.’[118] Further, Hollingworth J[119] has noted that the human right in s 25(1) of the Charter is based on art 14(2) of the International Covenant on Civil and Political Rights and had regard to General Comment 30[120] of the Human Rights Committee in relation to the scope of that right.
[116]Nolan v MBF Investments Pty Ltd [2009] VSC 244, [155]-[172].
[117]Castles v Secretary, Department of Justice [2010] VSC 310, [69], [75],[100], [109]-[112].
[118]Ibid [70].
[119]Sabet v Medical Practitioners Board Hollingworth (2008) 20 VR 414, [163]-[164].
[120]Office of the High Commissioner for Human Rights, Human Rights Committee, General Comment 30 (21 August 2007)

On this analysis, the Human Rights Committee is an independent body of human rights experts established under the International Covenant on Civil and Political Rights. Although it is not a court, it is quasi-judicial in character. Its decisions and general comments are not binding precedents and it our duty to form an independent view on the matters in issue. But the opinions of the committee represent an important body of jurisprudence on the interpretation and application of the covenant. Australian courts of high authority have referred to and relied on the opinions and general comments of the committee when interpreting the provisions of the covenant or domestic legislation to which it is relevant.

Section 32(2) of the Charter provides that ‘[i]nternational law and judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision’. This provision enhances the capacity of the courts to consider such sources in the exercise of their ordinary powers of interpretation.[121] The explanatory memorandum says of s 32(2) that the decisions of ‘treaty monitoring bodies including the human rights committee, will be particularly relevant’.[122] That is especially so when identifying the scope of the human rights in the Charter, which reflect to a large extent those specified in the covenant.

‘Arbitrarily’

[121]See Kracke v Mental Health Review Board (2009) 29 VAR 1, [2001]-[2002] (Bell J).

[122]Explanatory memorandum, Charter of Human Rights and Responsibilities Act 2006 (Vic), [2844]-[2845].

Turning now to arbitrariness, we have seen the right in s 13(a) of the Charter is to have your privacy, family, home or correspondence not ‘unlawfully or arbitrarily interfered with’. The Attorney-General submits that these terms define the scope of the right and, contrary to my decision in ReKracke and Mental Health Review Board,[123] are not mere examples of when a limitation is reasonable and justified under s 7(2).
[123](2009) 29 VAR 1, [109].

I made the decision in Kracke before the judgment of the Court of Appeal in R v Momcilovic,[124] which held that s 7(2) was not relevant at the interpretation stage of a human rights analysis. I should therefore re-examine the scope of the right in s 13(a) in terms of the internal content of the right without regard to s 7(2).
[124](2010) 25 VR 436, [35] (Maxwell P , Ashley and Neave JJA).

In WBM v Chief Commissioner of Police[125] Kaye J held that ‘arbitrary’ in s 13(a) was an ordinary English word whose meaning was to be derived from the dictionary. In his Honour’s view, the word arbitrary in s 13(a) meant ‘a decision or action, which is not based on any relevant identifiable criterion, but which stems from an act of caprice or whim’.[126] His Honour also referred to the dictionary definition of the word, which is ‘to be decided by one’s liking’ or ‘capricious’ (OED).[127] This is a view I respect but cannot accept. It reduces the standard of protection in the right to Wednesbury unreasonableness.
[125][2010] VSC 219.
[126]Ibid [51].
[127]Ibid.

In my view, in s 13(a) and other provisions of the Charter, ‘arbitrarily’ is not used as an ordinary English word but as a term having a particular meaning which is embodied in art 17(1) of the covenant. By using this term in s 13(a), the legislature instituted a greater degree of human rights protection for the people of Victoria than would have flowed from using the word in the ordinary sense. To reject this meaning of the term would significantly reduce the protection which Parliament intended to confer.

It is very clear from the express terms of the Charter, as well as the report of the consultative committee,[128] the second reading speech of the Attorney-General[129] and the explanatory memorandum[130] that the human rights specified in Part 2 were drawn largely from the International Covenant on Civil and Political Rights. There are exceptions and the wording in some cases is materially different, which should be taken into account where relevant. But in relation to the unlawful and arbitrary aspect, the terms of art 17 of the covenant[131] are not materially different to the terms of s 13 of the Charter.[132] Such textual differences as do exist between the two do not bear on the meaning of these terms.
[128]Human Rights Consultative Committee, Rights, Responsibilities and Respect: The Report of the HRCC (2005) 26-45.
[129]Victorian Parliamentary Debates, Legislative Assembly, 4 May 2006, 1290-1291 (Rob Hulls).
[130]Explanatory memorandum, Charter of Human Rights and Responsibilities Act 2006 (Vic) 7. The explanatory memorandum states that s 13 of the Charter was ‘modelled on article 17 of the Covenant’: ibid, 13.
[131]
[132]Section 13 of the Charter provides: ‘A person has the right – (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to have his or her reputation unlawfully attacked.’

Given that origin and taking s 32(2) into account, I must conclude that Parliament intended to place in s 13(a) the concept of arbitrariness which is embodied in the protection afforded by art 17(1) of the covenant. That makes the views of the committee on the scope of that protection particularly relevant.

In General Comment 16, the committee gave this opinion on what is arbitrary for the purpose of art 17(1) of the covenant:

The expression ‘arbitrary interference’ is also relevant to the protection of the right provided for in article 17. In the Committee’s view the expression ‘arbitrary interference’ can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the covenant and should be, in any event, reasonable in the particular circumstances. [133]

[133]Office of the High Commissioner for Human Rights, Human Rights Committee, General Comment 16 (8 April 1988), [4].

It is well understood that ‘reasonable in the particular circumstances’ has a particular meaning in this context and does not mean reasonable on the merits. The committee made that clear in Toonen v Australia,[134] where it gave this further explanation:

The committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. [135]

[134](1994) 69 ALJ 600.

[135]Ibid [8.3].

Later the committee applied these principles in A v Australia,[136] which concerned detention in custody. Of arbitrariness in art 9(1) of the covenant, the committee said:

the Committee recalls that the notion of ‘arbitrariness’ must not be equated with ‘against the law’ but be interpreted more broadly to include such elements as inappropriateness and injustice. Further, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context. [137]

[136](1997) 4 BHRC 210.

[137]Ibid [9.2].

Drawing on the jurisprudence of the committee, Professor Nowak has given an account of the origin and content of the prohibition against arbitrary interference with the rights specified in art 17(1) of the covenant. It too makes clear that the word ‘unreasonable’ is here used not as meaning unreasonable on the merits but as meaning disproportionate in the legal sense:

with respect to permissible interference with privacy, family, home and correspondence, Art. 17 does not contemplate a mere formal limitation clause results from the prohibition of ‘arbitrary interference’ (‘immixtions arbitraires’). The term ‘arbitrary’ is based on Art. 12 of the UDHR and can be found in Arts. 6(1), 9(1) and 12(4) of the Covenant. In conformity with the historical background and the corresponding remarks on Art. 6, it is reiterated here that regardless of its lawfulness, arbitrary interference contains elements of injustice, unpredictability and unreasonableness. Moreover, the expression ‘arbitrary’ suggests a violation by State organs. In evaluating whether interference with privacy by a State enforcement organ represents a violation of Art. 17, it must especially be reviewed whether, in addition to conformity with national law, the specific act of enforcement had a purpose that seems legitimate on the basis of the Covenant in its entirety, whether it was predictable in the sense of rule of law and, in particular, whether it was reasonable (proportional) in relation to the purpose to be achieved. [138]

[138]Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2^nd rev ed, 2005) 382-383 (footnotes omitted.)

Like the Charter, the covenant contains other provisions which prohibit unlawful or arbitrary interference with a human right. The same broad concept of arbitrariness applies. One example we have seen already is art 9(1), which specifies the right ‘to liberty and security of the person’ and not to be ‘subjected to arbitrary arrest or detention’. The views of the committee and Professor Nowak on the concept of arbitrariness in art 9(1) were carefully examined by Black CJ, Sundberg and Weinberg JJ in Minister for Immigration Multicultural and Indigenous Affairs v Al Masri.[139] On the basis of that examination, their Honours held that arbitrary in that article meant ‘unproportional or unjust’.[140] It was arbitrariness in that sense which Refshauge J applied under s 18 of the Human Rights Act in Blundell v Sentencing Administration Board (ACT).[141]
[139](2003) 126 FCR 54.
[140]Ibid [152].
[141](2010) 245 FLR 424, [165]-[170].

I therefore conclude that the human right in s 13(a) not to have your privacy, family, home or correspondence ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.

Further, we will see that the ‘principle of legality’ in the interpretation of legislation is that provisions will not be interpreted to abrogate or curtail ‘fundamental common law rights or freedoms’ without that intention being ‘clearly manifested by unmistakable and unambiguous language’[142]. As Vickery J held in Nolan v MBF Investments Pty Ltd,[143] the ‘protection of a person’s home from arbitrary interference is reflected in all of the major international human rights instruments and the Victorian Charter.’[144] That right is therefore ‘unequivocally a fundamental human right [which] enlivens the “principle of legality”’.[145]
[142]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [30] (Gleeson CJ).
[143][2009] VSC 244.
[144]Ibid [179].
[145]Ibid [180].

Property

Section 20 specifies the human right that ‘a person must not be deprived of his or her property other than in accordance with law.’ In applying this right, the three issues are whether the person has ‘property’, whether the person is ‘deprived’ of that property and whether the deprivation is not ‘in accordance with law’. Neither ‘property’ nor ‘deprived’ is defined. On first principles, these terms would be interpreted liberally and beneficially to encompass economic interests and deprivation in a broad sense. ‘In accordance with law’ has a particular meaning in this context.

The right to property in s 20 of the Charter does not come from the International Covenant on Civil and Political Rights, which only goes so far as to prohibit discrimination on grounds of property (art 26). The First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms[146] goes further than both the Charter and the covenant. Article 1 of that protocol specifies a right to the peaceful enjoyment of possessions as well as the non-deprivation principle. There is a significant body of authority in the courts in the United Kingdom[147] and Europe[148] on this right.
[146]Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
[147]See Richard Clayton and Hugh Tomlinson, The Law of Human Rights (2009) vol 1, ch 18.
[148]See Pieter van Dijk et al, Theory and Practice of the European Convention on Human Rights (4^th ed, 2006) ch 17.

That jurisprudence assists in relation to what amounts to a deprivation of property in human rights legislation such as the Charter. It is well-established that a formal expropriation is not required (although it does suffice) and a de facto expropriation is sufficient. Citing earlier authorities, in Zwierzynski v Poland the European Court of Human Rights gave this statement of principle:

The Court recalls that in order to establish whether or not there has been a deprivation of possessions it is necessary not only to consider whether there has been a formal taking or expropriation of property, but also to look beyond appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are ‘practical and effective’, it has to be ascertained whether that situation amounted to a de facto expropriation. [149]

I will apply this approach in determining whether there has been a deprivation of property within s 20 of the Charter in the present case.

[149](2004) 38 EHRR 6, [69] (citing Sporrong and Lonnroth v Sweden (1983) 5 EHRR 35 and Brumarescu v Romania (2001) 33 EHRR 35).

Again on first principles, ‘property’ in s 20 would encompass real and personal property, such as land, chattels and money, as well as other economic interests which do not need to be considered here. The main property at issue in the present case is Patrick’s home, which is a house on land in a suburb of Melbourne of which he is a joint owner. That home is clearly property for the purposes of s 20.

Section 20 requires any deprivation of a person’s property to be ‘in accordance with law’. That requires but is not confined to bare legal authorisation for the deprivation. The principle of lawfulness in s 20 is of fundamental importance and wider.[150] To be in accordance with law, the law concerned must be publicly accessible, clear and certain and not operate arbitrarily.[151] But the right in s 20 does not extend to compensation for deprivation of property.[152]
[150]See generally Richard Clayton and Hugh Tomlinson, The Law of Human Rights (2009), vol 1, [18.113]-[18.114]; Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (2008)[2210]; Re Kracke and Mental Health Review Board (2009) 29 VAR 1, [168]-[197] (Bell J).
[151]R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307, [34] (Lord Bingham, speaking of the analogous requirement in the Human Rights Act 1998 (UK)).
[152]Halwood Corporation (in liquidation) v Roads Corporation [2008] VSC 28, [108] (Osborn J).

I have some difficulty with identifying the purpose of appointing the administrator because of the generalised way in which the tribunal approached the matter and the nature of the findings which it made. As identified by the tribunal, the purpose of appointing the administrator was ‘to make decisions in relation to [Patrick’s] home’. There was a ‘strong possibility that an administrator would decide to sell [his] home’. The administrator would make decisions ‘about his home’ which Patrick was unable to make by reason of his disability. These decisions would be made to protect Patrick ‘from continuing the pattern of behaviour’ that have been detrimental to him and also some of his healthcare professionals. The administrator would ‘investigate’ these issues and decide what should be done, taking the core principles into account.

But the purpose of the appointment could not have been for ensuring Patrick would obtain accommodation because he was already being accommodated at the hospital. Nor could the appointment have been made for ensuring he would obtain supported accommodation in the community which was more suitable to his needs, because the tribunal did not find the house would have to be sold before that could happen. It did not attempt to resolve the evidence on that subject, but the evidence was clearly not to that effect in any event.

Rather, the purpose of appointing the administrator was the generalised purpose of helping to improve Patrick’s medical treatment and increase his long-term residential accommodation options. The idea was that, if he did not have his home to go to, he would be more medically compliant, more cooperative with the hospital, medical and social service staff, might develop more insight into his condition and would be more likely to settle into, and not abscond from, a community accommodation facility.

These may be important and legitimate purposes in general terms. But doing something to improve someone’s medical and accommodation options is not as important as doing something which is necessary to meet their pressing medical and accommodation needs. Further, in assessing the importance of this generalised purpose, I would take into account that Patrick was being satisfactorily accommodated and treated in hospital, even if the living conditions were not ideal, and give significant weight to the freedom of choice he was exercising in remaining there rather than consenting to the sale of his home. I would also take into account that it was not known whether moving Patrick to a hostel would be successful, temporary or permanent.

(c) Nature and extent of the limitation

The focus here is on the limitation (the means), not the purpose (the end). It is necessary to identify objectively, and in the particular circumstances, how and to what extent the limitation interferes with the rights in question. The nature and extent of the limitation is a critical consideration because the greater the interference, the more pressing and substantial must be the justification.

The limitation is the appointment of an unlimited administrator who will take complete and exclusive management and control of Patrick’s property and probably sell his home. This is a severe interference with his human rights, for reasons which I have already given. It will probably lead to the permanent severance of Patrick’s ‘very strong connection to his house’, together with the loss of the sense of identity and personal autonomy which that connection and managing his own money and property enables him to experience, even and perhaps all the more because he is in psychiatric detention.

(d) Relationship between limitation and purpose

The question is whether there is a proper relationship between the limitation (the means) and the purpose (the end). The means must be seen to be appropriate for achieving the end. The means must be rationally connected to and carefully designed to achieve the legitimate end.

The tribunal did discuss this issue, but at a high level of generality. In its view, decisions about Patrick’s home needed to be made in his best medical and social interests, which he was not making by reason of his disability. The administrator could investigate what needed to be done. Taking into account Patrick’s circumstances, including his present and future economic circumstances, that probably meant the home would be sold. The administrator would be given unlimited powers so that it could take this course, if appropriate. That, in the tribunal’s view, supplied a rational connection between appointing the administrator and promoting Patrick’s best interests.

Even accepting (against my earlier conclusion) that the legislation permitted an administrator to be appointed for these medical and social purposes, I cannot accept that it was reasonably necessary at the time, and in the circumstances, to interfere so drastically with Patrick’s human rights in order to improve his medical and accommodation options, and the tribunal was wrong to approach the question in the generalised manner that it did.

Patrick was not said or found to be in a health or accommodation crisis. He gave evidence at the hearing. He was not found to be in need of some urgent change of medical care or accommodation. There was no proposal for altering his medical treatment should his home be sold. Whether the appointment was needed in terms of Patrick’s treatment plan under s 19A of the Mental Health Act was not dealt with in the evidence. I accept the tribunal’s finding that living independently in the community was not then nor in the foreseeable future an option for him. That was because of his mental illness, his lack of insight into that illness and his serious physical disabilities. In the light of that, he had been assessed as suitable for placement in an aged care hostel, which he opposed. He preferred to remain where he was. As we have seen, there was some consideration in the evidence of the financial issues raised by moving him to that accommodation, but the evidence was not that Patrick’s home had to be sold to provide funds for this to happen, and the tribunal did not so find. There was very little discussion in the evidence about the down-side treatment risks in the course which was proposed. The tribunal did not find that selling the home would actually break the cycle of behaviour which had been detrimental to him, or even assess what contribution would be made to that aim by selling the home. There was little consideration in the evidence, and no finding was made, about the consequences of selling the home if transferring Patrick to a hostel proved to be unsuccessful. All these matters were to be investigated by the administrator.

Thus, what the tribunal did was to appoint an unlimited administrator with authority to sell Patrick’s home without making a finding that this was really necessary to meet his then pressing medical and accommodation needs. That was not to fashion a measure which was carefully designed to achieve a legitimate end. It was to give the administrator a power that significantly exceeded the generalised purpose of improving his treatment and accommodation options which I have discerned from the tribunal’s findings. Contrary to the conclusion of the tribunal, appointing an administrator with that authority was not rationally connected to a legitimate aim. There was no finding that selling the house was necessary for the purpose of achieving that aim. In truth, making a finding of that kind would have involved going into the matters at issue in much greater depth than the tribunal did. Moreover, because those matters went to whether an administrator should be appointed at all, they could not be left to the administrator.

(e) Less restrictive means

The principle is that the means chosen to achieve the legitimate end should be the least restrictive which are reasonably available.

This is a very important consideration and lies at the heart of an effective proportionality analysis. Its significance is underscored in cases under the Guardianship and Administration Act. As we have seen, least restrictive means is a core principle specified in s 4(2). When appointing an administrator, that principle is a mandatory relevant consideration under s 46(2)(a) and, by s 46(4), it governs the terms of the order which can be made. To repeat, the provisions require any order to be ‘tailored to the circumstances, being privative only the extent actually required.’ [472] Article 12(4) of the Convention on the Rights of Persons with Disabilities embodies the same principle.
[472]McDonald v Guardianship and Administration Board [1993] 1 VR 521, 530 (Fullagar, Tadgell and JD Phillips JJA).

The tribunal set out s 7(2) of the Charter in full. It also set out the passage in R v Oakes[473] in which Dickson CJ specified this principle. It made an express finding that ‘less restrictive options had failed time and again and would be likely to fail again’.
[473][1986] 1 SCR 103, 139.

The tribunal was here referring to the cycle of remission, decompensation and re-admission which had characterised Patrick’s treatment for nearly 20 years. That cycle was powered by his irrational belief that he did not need medication, which he stopped taking when he went home, with serious consequences for his health.

Giving as much weight as I can to the experience and expertise of the tribunal in making these findings, I cannot see how giving an administrator complete management and control of Patrick’s property was the least restrictive means reasonably available in the circumstances for advancing his best medical and social interests. Rather than that, it was virtually the most restrictive means. Making the order was designed to place unlimited power and control over Patrick in the hands of the administrator, essentially so his house could be sold, when the need to do so was neither established nor found.

In summary, the question is whether appointing an unlimited administrator who would probably sell Patrick’s home was not reasonable and demonstrably justified under s 7(2) and therefore unlawful under s 38(1) of the Charter. Even giving significant weight to the assessment of the tribunal, I must conclude that it was not so justified.

The human rights which were at issue were of great importance, especially the rights which Patrick had to choose where to live, to be free of unlawful and arbitrary interference with his home and to live in the home which he owned, as well as his right to enjoy these rights equally with other persons, even though he had a mental illness and was a patient in a psychiatric hospital. The appointment of the administrator was a drastic interference with these rights, being the likely permanent loss of his home and his very strong connection with that home. The purpose of the appointment was the generalised one of improving Patrick’s treatment and accommodation options. But he was not in a health or accommodation crisis (or anything like it) and some weight must be given to the personal choices which he was making about his own future and property. So great an interference was plainly not justified by the modest purposes of the appointment, which was virtually the most restrictive rather than the least restrictive means which were reasonably available.

Exercising the discretion in s 46(1) of the Guardianship and Administration Act to appoint the administrator placed limitations on and interfered with Patrick’s human rights such as were not reasonable and demonstrably justified under s 7(2) of the Charter. The appointment was therefore unlawful under s 38(1) for being incompatible with human rights. In this case, s 38(2) does not operate to make s 38(1) inapplicable because nothing in the Guardianship and Administration Act or any other law meant the tribunal could not have reasonably acted differently or made a different decision.

As the discretionary appointment of the administrator was unlawful under s 38(1) of the Charter, making it was an error of law within s 148(1) of the Victorian Civil and Administrative Tribunal Act. On that alternative ground, Patrick is also entitled to relief. It is unnecessary to determine the other grounds of unlawfulness on which he attacks the exercise of that discretion.

I have concluded the tribunal erred in law in interpreting the provisions of ss 46(1)-(4) of the Guardianship and Administration Act and also erred in law in exercising the discretion which those provisions confer to appoint an administrator. There will be an order under s 148(7)(a) of the Victorian Civil and Administrative Tribunal Act setting aside the administration order of the tribunal dated 17 May 2010. Under s 148(7)(b), the court can make any order that the tribunal could have made in the proceeding. The tribunal could have made an order dismissing the application for the appointment of the administrator. In my view, having regard to the purpose for which the appointment was sought and the evidence which was given in the proceedings in the tribunal, that was the only order which was open on the proper interpretation of the provisions and the exercise of the discretion to make the appointment compatibly with human rights.[474] Therefore there will be an order dismissing the application of Melbourne Health dated 22 May 2009 for the making of an administration order in respect of Patrick’s estate.

CONCLUSION

[474]Cf XYZ v State Trustees Ltd (2006) 25 VAR 402, [64] (Cavanough J).

Patrick has appealed on grounds of error of law against the appointment of an administrator to his estate by the Victorian Civil and Administrative Tribunal. There were two main issues in the appeal. The first is whether the tribunal erred in law in its interpretation of the provisions of the Guardianship and Administration Act. The second is whether it erred in law in the way that it exercised its discretion to appoint the administrator.

Patrick is aged 58 years, mentally ill and has physical disabilities. He cannot live independently in the community. When unsupervised, he has a history of not taking his medication, which he irrationally believes he does not need. His mental health inevitably deteriorates, leading to involuntary readmission to hospital and a long, slow recovery. Also, his physical disabilities prevent him from taking proper care of himself.

Under an order made pursuant to the Mental Health Act, Patrick is an involuntary patient at a hospital which is operated by Melbourne Health. Despite his medical condition, he understands how to manage money and use banks accounts. He owns a modest home in a Melbourne suburb and has performed the few practical and financial obligations of that ownership from the hospital for many years.

State Trustees was appointed as the administrator on the application of the hospital and it will probably sell Patrick’s home. The hospital wants to move him into supported accommodation in a hostel, which he opposes. To facilitate the move, the hospital made application to the tribunal for the appointment of an administrator with power to sell Patrick’s home. The tribunal made the appointment even though, in its words, the appointment would probably sever his ‘very strong connection with his home.’

The Guardianship and Administration Act allows an administrator to be appointed where the person with a disability is unable to make reasonable judgments about their estate by reason of their disability and they need an administrator to make those judgments for them. In the tribunal’s view, these provisions permitted an administrator to be appointed over a person’s estate if decisions had to be made about where it was in their best interests to live even if, as Patrick had been doing, the person was making reasonable judgments about their estate in practical and financial terms.

That is incorrect in law. On the proper interpretation of the provisions, an administrator can only be appointed where the person is incapable (by reason of their disability) of making reasonable judgments about matters relating to their estate (in whole or in part) as real or personal property in practical, financial or management terms. The general purpose of the administration order provisions is to enable the property and financial resources of people with a disability to be preserved, conserved and not dissipated and to be maintained and applied for their welfare and benefit. An administration order must be made for that purpose.

In reaching this conclusion, I have taken into account that appointing an administrator, particularly with unlimited powers, is a very serious step because it transfers complete and exclusive control of a person’s estate to the administrator. Such a step engages the human rights, and the fundamental common law rights and freedoms, of persons. In accordance with the applicable principles, I have interpreted the provisions of the Guardianship and Administration Act so as to preserve as much as possible a person’s human rights to choose where to live, including in a home which they own (s 12), to be free of arbitrary and unlawful interference with their home (s 13(a)) and to enjoy these rights equally with other people (s 8(3)), as specified in the Charter of Human Rights and Responsibilities Act, as well as the fundamental common law right to own and quietly enjoy property, including your home.

Even if the interpretation adopted by the tribunal was correct in law, the power to appoint the administrator was discretionary. If the tribunal was a public authority under the Charter when making the appointment, it was required to exercise that discretion compatibly with Patrick’s human rights and the appointment was unlawful if the tribunal did not. In this appeal, Patrick relies on provisions of the Charter which permit him to challenge the appointment on the ground that it was unlawful for being incompatible with human rights.

Patrick and the Victorian Human Rights and Equal Opportunity Commission submitted the tribunal was a public authority and therefore bound by the Charter when appointing an administrator under the Guardianship and Administration Act. The Attorney-General submitted it was not. I have determined the tribunal is a public authority when exercising such powers and must therefore act compatibly with human rights. I have accepted the submissions of the Attorney-General and the Victorian Human Rights and Equal Opportunity Commission that, when addressing human rights questions in an appeal of this nature, the court does not reconsider the decision appealed from on the merits and, in view of the experience and expertise of the tribunal, should afford its decisions appropriate weight when applying the standards in the Charter.

Under the Charter, human rights are not absolute and, compatibly with human rights, may be limited by legislation and the acts or decisions of public authorities where there is reasonable and demonstrable justification for the limitation. There is no question that the Guardianship and Administration Act is compatible with human rights in general terms. Its purpose is to protect the interests of vulnerable people who may need a guardian or administrator to be appointed in their best interests, it has built in safeguards and it is capable of being, and in law must be, administered compatibly with human rights. What was in issue in the appeal is the lawfulness of the appointment of the administrator in Patrick’s case when assessed against the human rights standards in the Charter.

Applying those standards, and even allowing for the experience and expertise of the tribunal, I have concluded the appointment of the administrator was not reasonable and demonstrably justified. It was therefore incompatible with Patrick’s human rights and unlawful.

The rights which are at stake are very important to Patrick, for they protect his interest in being able to choose where to live and to live in the home which he owns. He holds those rights, and they deserve protection and respect, on equal terms with everybody else even though he is an involuntary patient in a mental hospital. The appointment infringes his human rights very seriously, as the administrator will take complete management and control of his money and other property, and probably sell his home. No sufficient purpose has been shown to justify such a serious infringement of his human rights, as he is not in a crisis (or anything like it) in terms of his health, accommodation or otherwise. He has not been found to be mismanaging his money or his home. It is not known whether transferring him to a hostel would be successful, temporary or permanent. Lastly, appointing an unlimited administrator was virtually the most rather than the least restrictive option which was reasonably available.

As the discretionary appointment of the administrator over Patrick’s estate was incompatible with his human rights and therefore unlawful under the Charter, it was an error of law to make the appointment, whether or not the tribunal misinterpreted the Guardianship and Administration Act.

I will make an order setting aside the order of the tribunal appointing the administrator. Having regard to the purpose for which the appointment was sought by Melbourne Health and the evidence which was given in the proceedings in the tribunal, the only order which was open on the proper interpretation of the provisions of the Guardianship and Administration Act and the exercise of the discretion to make the appointment compatibly with human rights was an order dismissing the application. Therefore I will make an order dismissing the application for the making of an administration order in respect of Patrick’s estate.

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Article 17 of the covenant provides: ‘(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.’

The principles of the present Convention shall be:

(a)        Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b)        Non-discrimination;
(c)        Full and effective participation and inclusion in society;

(d)Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

(e)        Equality of opportunity;
(f)        Accessibility;
(g)        Equality between men and women;

(h)Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

[2011] VSC 327

19 July 2011