Presentation on theme: "Reflections on Cobaw Community Health Services v Christian Youth Camps Ltd Rights here, rights now forum 29 November 2010 Kate Eastman."— Presentation transcript:
Reflections on Cobaw Community Health Services v Christian Youth Camps Ltd Rights here, rights now forum 29 November 2010 Kate Eastman
Role of the Commission s 40(1) - Charter of Human Rights and Responsibilities Act 2006 (Vic) Nature of the intervention in the Cobaw matter ◦ Not involved in the facts and evidence ◦ Questions of law ◦ Focus on the relationship between the Charter and the Equal Opportunity Act 1995 (Vic) where right to equality/non discrimination is provided by both enactments. Commission’s approach ◦ Statement of Contentions ◦ Written and oral submissions
Key Charter issues Which human rights in the Charter were engaged? ◦ Equality/non discrimination; ◦ freedom of religion; ◦ freedom of expression Interpretative obligation – how s 32 of the Charter applied to the EO Act post R v Momcilovic ◦ Application to Momcilovic where the EO Act was not said to be inconsistent with the Charter ◦ Relevance of international human rights instruments and jurisprudence The application of the Charter which engaged potentially conflicting Charter rights ◦ Interpretation of the relevant human rights ◦ Role of s 7(2) of the Charter
Other Charter issues Whether there was an issue of the retrospective operation of the Charter Whether the Charter was relevant to the question of the complainant’s standing Whether the Charter applied to incorporated entities
How the Charter issues were addressed by VCAT ◦ No issue of retrospectivity   ◦ Use of the Charter to the question of standing  –  ◦ Agreement on the Charter rights engaged  –  ◦ Charter rights to be given a broad interpretation  ◦ EO Act rights to be given a broad interpretation to realise human rights ,  – ,  – , , , 
How the Charter issues were addressed by VCAT (cont) Balancing ‘conflicting’ rights and the application to the exceptions in the EO Act  – ,  Use of international and comparative jurisprudence ◦ UN Human Rights Committee General Comments ◦ UK and Canadian decisions
Did the Charter make a difference? Resort to the Charter placed a greater emphasis on interpretation of the EO Act Additional work for the parties Would the outcome have been different if the Charter did not apply?
Issues for future Charter litigation For all EO Act claims, the Charter will be relevant The relationship between s 7(2) of the Charter and EO Act need to be explored further Advance simple and clear points on questions of interpretation Avoid the ‘bombarding’ effect of international human rights and jurisprudence
EO Act 2010 New ss 82 – 84 Whether these provisions need to be tested against s 7(2) of the Charter?