United Firefighters' Union v Veohrc - [2017] VSC 773

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

---

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

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read United Firefighters' Union v Veohrc and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSC 773
Decision Date: 15 December 2017

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