Human rights proportionality analysis in Melbourne
⚖️ Human Rights Proportionality Analysis in Melbourne (Victoria)
📌 What Is Proportionality Analysis?
Proportionality analysis is a method used by courts to assess whether a limitation on human rights is reasonable and justified in a free and democratic society.
In Victoria, this is governed by Section 7(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (hereafter, "the Charter").
📜 Section 7(2) – The Test
“A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom...”
🔹 The proportionality test considers:
Importance of the purpose of the limitation;
Nature of the right affected;
Relationship between the limitation and its purpose;
Whether there are less restrictive means reasonably available to achieve the same purpose.
This test is derived from international human rights law and similar to models used in Canada, UK, and the EU.
🏛️ Application in Victoria (Melbourne)
Under the Charter:
Public authorities must act compatibly with human rights (s 38).
Courts interpret laws compatibly with human rights (s 32).
When limits are imposed on rights, courts use proportionality analysis to decide if they are justified (s 7(2)).
⚖️ Key Victorian Cases Applying Proportionality Analysis
1. Momcilovic v The Queen (2011) 245 CLR 1
📌 Facts:
Ms. Momcilovic was found with drugs in her apartment. Under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), she was presumed to possess them unless she could prove otherwise.
❓ Issue:
Did the reverse onus provision unjustifiably limit the presumption of innocence under section 25(1) of the Charter?
🧠 Reasoning:
The High Court split on the use of the Charter. However, the majority accepted that any limitation of rights under s 7(2) must be proportionate.
⚖️ Principle:
Proportionality is essential in determining whether a statutory limit on rights is justified.
Some justices accepted a structured approach to proportionality, similar to the Canadian and UK models.
📚 Citation:
Momcilovic v The Queen (2011) 245 CLR 1
2. PJB v Melbourne Health (Patrick's Case) (2011) VSC 327
📌 Facts:
Melbourne Health sought to sell the home of a psychiatric patient (Patrick) to recover medical costs. This raised issues about privacy, family life, and property rights under the Charter.
❓ Issue:
Was the seizure and sale of Patrick’s home a proportionate limit on his rights?
🧠 Reasoning:
Justice Bell held that the interference with Patrick’s rights must be assessed under Section 7(2). The sale was not proportionate to the purpose of recovering costs.
⚖️ Principle:
Rights can be limited, but only if it is demonstrably justified under s 7(2).
This case clearly applied a structured proportionality test, weighing the severity of the impact against the public purpose.
📚 Citation:
PJB v Melbourne Health (Patrick's Case) (2011) VSC 327
3. DPP v Kaba (2014) 44 VR 526
📌 Facts:
Police stopped a vehicle without lawful grounds. The issue was whether the stop breached rights under the Charter, particularly freedom of movement and privacy.
❓ Issue:
Were the police powers exercised in a manner that disproportionately limited Charter rights?
🧠 Reasoning:
Justice Bell applied s 7(2) and emphasized that statutory powers must be exercised proportionately. The use of police discretion should not disproportionately limit individual rights.
⚖️ Principle:
The exercise of discretionary powers must be compatible with human rights.
Proportionality analysis applies not just to laws, but also to conduct by public authorities under s 38 of the Charter.
📚 Citation:
DPP v Kaba (2014) 44 VR 526
4. Certain Children v Minister for Families and Children (No 2) (2017) VSC 251
📌 Facts:
Children were being held in adult prisons (Barwon facility), which raised serious concerns under the Charter, including rights to humane treatment and protection of children.
❓ Issue:
Was placing children in adult correctional facilities a proportionate limit on their human rights?
🧠 Reasoning:
Justice John Dixon found the practice grossly disproportionate and not demonstrably justified under s 7(2).
⚖️ Principle:
The state cannot justify serious rights breaches using broad administrative convenience.
Courts will scrutinise rights limitations using the s 7(2) test rigorously.
📚 Citation:
Certain Children v Minister for Families and Children (No 2) (2017) VSC 251
5. Castles v Secretary, Department of Justice (2010) VSC 310
📌 Facts:
A female prisoner (Castles) wanted to access IVF treatment. The prison refused. She claimed this breached her right to privacy, family life, and humane treatment under the Charter.
❓ Issue:
Was the restriction on IVF access proportionate?
🧠 Reasoning:
Justice Emerton applied the s 7(2) proportionality analysis and found the refusal unreasonable and unjustified. The right to reproductive health was protected even in prison.
⚖️ Principle:
Charter rights apply even to prisoners.
Rights can only be limited when the state proves the limitation is reasonable and proportionate.
📚 Citation:
Castles v Secretary, Department of Justice (2010) VSC 310
📘 Summary Table of Cases and Proportionality Analysis
| Case | Year | Court | Key Rights Involved | Proportionality Outcome |
|---|---|---|---|---|
| Momcilovic v The Queen | 2011 | High Court | Presumption of innocence | Proportionality discussed but not applied uniformly |
| PJB v Melbourne Health | 2011 | VSC | Property, privacy | Interference was not proportionate |
| DPP v Kaba | 2014 | VSC | Privacy, freedom of movement | Police powers must be exercised proportionately |
| Certain Children v Minister | 2017 | VSC | Humane treatment, child protection | Rights breach was grossly disproportionate |
| Castles v Secretary | 2010 | VSC | Reproductive rights, privacy | Refusal of treatment unjustified |
✅ Conclusion
Proportionality analysis in Melbourne (and more broadly, Victoria) is now a central tool in human rights litigation under the Charter of Human Rights and Responsibilities Act 2006 (Vic). Courts apply Section 7(2) to:
Assess whether a law or administrative action limits human rights, and if so,
Evaluate whether the limitation is justified in a free and democratic society.
Judicial decisions show that not all limitations will be accepted — the burden lies on the state to justify them, and courts actively scrutinise this justification.
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