United Firefighters' Union v Veohrc

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 02290

UNITED FIREFIGHTERS' UNION OF AUSTRALIA Plaintiff
v 
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION First Defendant
SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION Second Defendant

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JUDGE:

Ginnane J

WHERE HELD:

Melbourne

DATE OF HEARING:

8 September and 23 November 2017

DATE OF JUDGMENT:

15 December 2017

CASE MAY BE CITED AS:

United Firefighters' Union v VEOHRC & Anor

MEDIUM NEUTRAL CITATION:

[2017] VSC 773

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JUDICIAL REVIEW — Victorian Equal Opportunity and Human Rights Commission — Request by Government for review of Metropolitan Fire Brigade and Country Fire Authority — Nature and prevalence of discrimination, sexual harassment and victimisation — Whether review validly constituted — Whether Review was into matters that the Commission did not have power to investigate — Whether online survey conducted as part of the Review so fundamentally flawed that no authority acting reasonably could take account of it — Relevance of delay — Proceeding dismissed — Victorian Charter of Human Rights and Responsibilities Act 2006 ss 4, 41(c); Equal Opportunity Act 2010 ss 1, 3, 6, 151, 152, 157.

EQUAL OPPORTUNITY AND DISCRIMINATION — Powers of Victorian Equal Opportunity and Human Rights Commission to review public authorities’ programs and practices to determine compatibility with human rights — Public authority — Right of Victorian Government to make request — Victorian Charter of Human Rights and Responsibilities Act 2006 ss 4, 41(c).

HUMAN RIGHTS — Powers of Victorian Equal Opportunity and Human Rights Commission to review programs and practices of person requesting review — Who may request review — Conduct of review — Victorian Charter of Human Rights and Responsibilities Act 2006 ss 4, 41(c); Equal Opportunity Act 2010 ss 1, 3, 6, 151, 152, 157.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr M R Pearce SC with
Mr D C Langmead
Davies Lawyers
For the First Defendant Ms E A Bennett Solicitor for the Victorian and Equal Opportunity and Human Rights Commission
For the Second Defendant Ms M Richards SC with
Mr J Kirkwood
Victorian Government Solicitor’s Office

Introduction

Summary

Procedural Background

Background to the Review

The Secretary’s request for the Review

The response to the O’Byrne review

The Funding Agreement

Memoranda of Understanding

The Review

Online Survey

UFU’s objections to the Review

Anti-Discrimination and Human Rights Legislation

The Equal Opportunity Act 2010

The Charter of Human Rights and Responsibilities Act 2006

Control of fire services in Victoria

Fire Services Legislation

The Metropolitan Fire Brigade

The Country Fire Authority

The Emergency Management Act 2013

Ground One: The Review was not properly constituted

1(a)         Was there a valid request

1(a)         Consideration of whether the Review was properly constituted

1(b)Was there a valid agreement under s 151 of the EO Act?

1(b)Consideration of whether there was an agreement under s 151 of the EO Act

1(c)         Whether a Joint Review is permissible

1(c)          Consideration of the joint review issue

1(d)Is the Review supported by…

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Details
Case
[2017] VSC 773
Decision Date

CaseChat Overview and Summary

The United Firefighters' Union brought proceedings against the Victorian Equal Opportunity and Human Rights Commission seeking a review of the Commission's conduct of a review of the Metropolitan Fire Brigade and the Country Fire Authority. The Union sought declarations that the Commission's review was not validly constituted, that the Commission did not have power to investigate the matters of discrimination, sexual harassment and victimisation, and that the survey conducted as part of the review was so fundamentally flawed that no authority acting reasonably could take account of it. The Union further sought an injunction restraining the Commission from taking any action on the basis of the review, and sought an order that the Commission publish a statement to the effect that the review was invalid. The Commission defended the proceedings, asserting that it had validly conducted the review and that it had acted reasonably in doing so.

The Court considered whether the Union had standing to bring the proceedings, and found that it did. The Court then considered the nature of the review and the powers of the Commission. The Court found that the Commission was authorised to review the programs and practices of the Brigade and the Authority, and that the Government was entitled to request the review. The Court also found that the Commission's review was not so flawed as to be invalid, and that the Commission had acted reasonably in conducting the review and in taking account of the survey. The Court held that the Union had not demonstrated that the Commission had acted irrationally in conducting the review.

The Court dismissed the Union's proceeding in its entirety. It made no order as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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