Australia: Cemino v Cannan and Others 56 VR 480 [2018] VSC 535

The plaintiff was a Yorta Yorta man who lived in northern Victoria. He was charged with offences allegedly committed in and around Echuca. The Koori Court Division did not sit in Echuca. He applied to the Magistrates’ Court at Echuca to have his matters transferred under s4F of the Act to the Koori Court Division sitting at Shepparton. The magistrate refused the application on the basis that Echuca was the ‘proper venue’. The plaintiff sought judicial review on the basis that the decision was affected by jurisdictional error or error of law on the face of the record, and that it contravened the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). Section 8(3) of the Charter relevantly provided that every person ‘has the right to equal and effective protection against discrimination’. Section 19(2)(a) provided that Aboriginal persons must not be denied the right to enjoy their identity and culture.

Section 4F of the Magistrates’ Court Act 1989 (Vic) (the Act) empowered a magistrate to transfer proceedings to the Koori Court Division of the Magistrates’ Court in certain circumstances. Section 4F(3) provided that if a proceeding was transferred from one venue to another, ‘the transferee venue is the proper venue of the Courtfor the purposes of this Act’.

Consideration of s32 of the Charter: (a) The interpretative principle contained in s 32(1) of the Charter meant that the proper exercise of the discretion contained in s4F(2) of the Act required consideration of relevant human rights, being, in this case,the third limb of s8(3) and s19(2)(a). [12], [78].(b)   Section 4F(2) of the Act could be interpreted compatibly with human rights by taking into account the purposes of the Koori Court legislation. [152].