noticed her health deteriorate. Her back is just terrible. It has also affected her mentally. She has become increasingly despondent. I've noticed that she will sometimes barricade herself in the house; sometimes she won't even answer the phone. I've noticed that she experiences vomiting and disrupted sleep.

1. By letter dated 14 May 2009 the Transport Accident Commission refused a request by Ms Dawson's general practitioner Dr Ineson for the Commission to pay Ms Dawson's child care expenses to enable her to attend physiotherapy, hydrotherapy and Pilates. The letter stated, inter alia,

The TAC can pay for child care for a client who was engaged in the care of one (or more) children for the month before the transport accident, and was not receiving some real wages for providing this care. The TAC can only consider requests for child care where a client is unable to perform these child care duties due to the transport accident injuries.

As at the date of the transport accident, Ms Dawson had no children and was not pregnant.

1. It is not clear to me of at least with respect to Pilates and physiotherapy whether consideration has been given to the therapist's travelling to Ms Dawson's residence.
2. On 6 October 2009 solicitors acting for Ms Dawson filed an application under Section 77 of the Transport Accident Act seeking review by this Tribunal of the Commission's determination as to child care. The ground of the review application as stated on the notice was as follows

The applicant was injured in a transport accident on 13 October 2005. As a result of her injuries, the applicant requires child care services to enable her to access rehabilitation and disability services. The TAC is liable to pay for the same under the Transport Accident Act 1986. In refusing to pay for the applicant's child care services, the TAC has taken into account irrelevant considerations or failed to take into account all relevant considerations, including relevant rights recognised by the Charter of Human Rights and Responsibilities ('the Charter').

1. The applicant was represented by Dr Freckelton SC, Mr McGregor and Ms Forsyth.
2. In accordance with directions given by the then President Bell J, an outline of submissions on behalf of the applicant and prepared by Mr McGregor and Ms Forsyth was filed on 23 February. This outline canvassed extensively issues arising under the Charter of Human Rights and Responsibilities Act 2006 with copious reference to international and European jurisprudence on Human Rights. On 17 March 2010, the Court of Appeal published its decision in R v Momcilovic [2010] VSCA 50. Momcilovic's case represented the first opportunity for the court to give extended consideration of the operation of the Charter. The court overruled an earlier decision of Bell J, sitting as President of this Tribunal in Kracke v Mental Health Review Board [2009] VCAT 646 and postulated a fundamentally different approach to the Charter's operation from the one adopted by Bell J in Kracke. The submissions filed in this proceeding on behalf of Ms Dawson were predicated upon the correctness of the Kracke analysis.
3. On 28 April 2010 submissions in reply were filed on behalf of the applicant. It was necessary for these submissions to recast to some degree the analysis of the Charter's operation propounded on behalf of the applicant.
4. Dr Freckelton, Mr McGregor and Ms Forsyth submitted that the Commission's approach and analysis proceeded on the basis that insofar as the Transport Accident Act in Section 60(2)(c) made provision for the Commission to pay compensation for child care in circumstances which admittedly did not apply to Ms Dawson, the Commission had concluded that by implication, any other occasion for the award of compensation to meet child care expenses under the Act had been excluded.
5. They submitted that the cost of the child care services should be awarded to the applicant under Section 60(2)(a) as falling within the ambit of either 'rehabilitation services' or 'disability services' which was the character which they contend the physiotherapy, hydrotherapy or Pilates bore. Alternatively, they submitted the cost of the child care services should be payable as outlays incidental to the provision of rehabilitation services pursuant to Section 27(3)(d) of the Act.
6. Counsel for the applicant further sought an order amending their client's review application so as to extend to an application to review a determination made by the Commission at the same time as its principal child care determination to refuse to authorise the provision of the relevant child care services as disability or rehabilitation services under Section 23(1)(a) of the Transport Accident Act 1986. Mr C. Young, Counsel who appeared on behalf of the Commission, did not oppose this application and so I ordered that the review application should be amended accordingly.
7. Counsel for the applicant contended that the payment of the child care services was a necessary part of her rehabilitation and therefore properly awardable under Section 60(2)(a) of the Act, rather than being seen as a 'lessening of her household economic burden' as would child care services awarded under Section 60(2)(c) of the Act.
8. They stressed first that Section 60(2)(c) was not the sole instance in which child care services were referred to and provided for in the Transport Accident Act. They referred to Section 61A(4)(b), Section 145(1)(g) and Section 145(9)(b) remarking that these further references indicated that Section 60(2)(c) of the Act was not a code with respect to the award of compensation for child care services.
9. They said this situation was analogous to the provision of interpreter services 'to allow a non-English speaking applicant to participate in rehabilitation'. Similarly they said that child care services were necessary to allow this applicant to participate in rehabilitation.
10. They invoked both Sections 32 and 38 of the Charter of Human Rights and Responsibilities Act 2006. They submitted

the Charter imposes obligations on the Commission both in the way in which it interprets the [Transport Accident Act's] provisions and the way in which it makes decisions and exercises its discretion pursuant to such provisions.

1. They submitted the Commission had refused to consider Ms Dawson's individual circumstances and the nature of her child care needs and hence had failed to give proper consideration to her rights under the Charter. They continued

This had had the effect of not only breaching its s 38 public authority duty but of failing to recognise its s 32 duty to render a statutory interpretation which least infringes human rights.

1. They said that child care could in the circumstances be regarded either as a 'disability service' or 'rehabilitation service' and that their reliance on Section 32 of the Charter did not entail giving 'those terms a meaning that Parliament did not intend'. They said that Section 27(3)(b) of the Transport Accident Act

does provide the Commission with the discretion to pay out of its funds any payment required or authorised to be made or which used for or towards the cost and expenses of or incidental to the performance of its functions or powers. [emphasis in the original]

1. They submitted that following the Court of Appeals decision in Momcilovic the proper approach to the application of the Charter in circumstances such as this was as follows

Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles and statutory interpretation and the Interpretation of Legislation Act 1984.

Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.

Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.

1. They said that in carrying out Step 1, it was necessary to apply the common law principles of statutory interpretation together with those contained in the Interpretation of Legislation Act 'as well as s 32 of the Charter'. It seemed according to the Court of Appeal in Momcilovic 'the starting point is to identify the purpose which the enacting Parliament intended the provision to serve'.
2. They referred to the various provisions including the definition of 'disability service' and 'rehabilitation service' in Section 3, stressing that in the former case the definition extended, inter alia, to 'assistance' and in the latter case to 'treatment'. They also referred to Section 23(1)(a) of the Act.
3. They said that the reference to child care services in Section 60(2)(c)

does not preclude such services from also being payable pursuant to s 60(2)(a) of the [Transport Accident Act] where there is a different justification for the expense - namely where such services are an essential prerequisite to allowing an injured person to participate in other disability or rehabilitation services.

They said the maxim expressio unius est exclusio alterius must be used with caution. It was, they said, a valuable servant but a dangerous master. They referred to the decision of the High Court of Australia in Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88, at [94]. They said the Act was a 'beneficial Act' accordingly

such a rule should only be relied upon when the restrictive statutory objective is clearly apparent in the text of the instrument or the extrinsic materials.

1. They contended that the extrinsic material suggested that the Commission's powers and duties under Section 60 of the Act should be given a wide construction. They referred to the second reading speech of then Attorney-General, the Honourable Jim Kennan, in the Legislative Council 5 December 1986 at page 1640 of the relevant volume of Hansard, where Mr Kennan said that the Bill which became the Transport Accident Act guaranteed injured persons financial security, and adequate medical and rehabilitation services. They referred to a statement by the then Treasurer Mr Jolly, in the Legislative Assembly on 3 December 1986 at 2701 of the relevant volume of Hansard, where the Treasurer stated that the Government intended the Commission to facilitate the provision 'whatever necessary services are required'. Next they referred to a speech on 31 October 2000 by the then Minister for Industrial Relations in the Legislative Council stating that the Bill which became the Transport Accident (Amendment) Act 2006 would improve the benefits available to Victorians injured in transport accidents and rationalise the provisions relating to home and vehicle modifications. These statements they said indicated a Parliamentary intention that Section 60 of the Act should 'operate generously to allow for payments of all necessary services for rehabilitation'. They pointed away from any intention that Section 60 should operate by reference to 'narrow categories of available assistance'. They referred to the decision of Hedigan J in Transport Accident Commission v McRitchie [2001] VSC 151; (2001) 33 MVR 242 at [20] where his Honour said that Section 60 'being an entitling provision, should be read as broadly as the language will permit'.
2. They said acceptance of their interpretation would not leave Section 60(2)(c) of the Transport Accident Act dealing expressly with child care services redundant.
3. They said that Ms Dawson's receipt of loss of earning capacity benefits does not entail any double dipping were she to be awarded the child care expenses which she seeks. The benefits which she has been awarded are calculated by reference to her pre-injury earnings when she had no dependants. They continued

not all injured persons will require a payment of child care costs as part of their claim for "rehabilitation services" or "disability services". However, where, as in the case of the applicant, payment of these costs is an essential prerequisite to the claim of accessing such services, they are payable pursuant to s 60(2)(a).

1. They said that for a person in Ms Dawson's circumstances, deprived of the expenses of child care, despite being entitled to rehabilitation services or disability services 'access to such services [would] be rendered impossible through want of child care payments. It must be noted that such a result would offend against the objects of the [Transport Accident Act] and the objectives of the Commission. They referred to Sections 8 and 11 of the Transport Accident Act. The result, they said, would be ineffective rehabilitation and inefficient management of the compensation scheme which they said Parliament could not have intended.
2. They referred to Section 35 of the Interpretation of Legislation Act 1984 requiring an interpretation of the statute to be preferred which advanced the objectives of the relevant statute rather than one which did not. They continued

The applicant submits that an interpretation of s 60(2)(a) that allows for the payment of child care costs to a claimant in her circumstances is the construction to be preferred in promoting the purpose or object underlying the [Transport Accident Act] than is an interpretation that prevents such payment.

They submitted that where more than one interpretation of the statute is available independently of Section 35 the one which promotes the objectives of the statute should be preferred. They referred to Victims Compensation Fund Corp v Brown (2003) 201 ALR at 269. They said that the requirement with respect to benefits paid under Section 60(2)(a) of the Act that they would be reasonable included an inherent check and balance on benefits payable under that provision. The discretion held by the Commission 'must in turn be exercised in accordance with the Commission's public authority obligation which is set out in s 38 of the Charter'.

1. They said the construction of these provisions should be adopted, at least in terms of human rights. They referred to R v Momcilovic [2010] VSCA 50 at [103].
2. They contended that in making the judgment as to what interpretation least infringes human rights it is necessary first to identify the content and scope of the relevant human right. They referred to the decision of Director of Housing v Sudi [2010] VCAT 328 at [90].
3. They submitted that the following human rights were engaged: the protection of families and children (Section 17 of the Charter), the recognition of equality before the law (Section 8 of the Charter) and of privacy (Section 13 of the Charter).
4. In this context they contended Ms Dawson was not asserting a right to child care. They said that there was an inextricable link between civil and political rights 'such as those rights protected in Part 2 of the Charter' and economic, social and cultural rights which has long been accepted in international jurisprudence. They continued

whilst s 44 of the Charter makes reference to rights not yet protected by Part 2, it does not follow that where there has been a breach of such a right other rights expressly protected by the Charter are not simultaneously breached.

1. They said that the scope of the right to protection of families and children 'includes the right to positive steps being taken by the State to ensure such protection'. They said the scope of the right to privacy 'includes the right to positive steps being taken by the State to ensure such protection' and the scope of the right to equality 'includes the right not to be arbitrarily deprived of such equality, regardless of whether such deprivation is lawful'.
2. They stressed the width of the concept of 'rehabilitation services' and 'disability services'. Acceptance of the applicant's case is possible 'without any strained or activist interpretative devices being employed'.
3. In any event, Section 23(1) of the Transport Accident Act gave the Commission a discretionary power to authorise services as 'disability services' or 'rehabilitation services'.
4. They said that pre-Charter decisions dealing with the interpretation of Section 60 need 'to be revisited'. They referred to Transport Accident Commission v Salcedo [2003] VSCA 226; (2003) 8 VR 276 contending that this decision was distinguishable from Ms Dawson's case. In any event, they said the landscape had been changed by 'the arrival of the Charter'.
5. Similarly they said that the decision of Judge Bowman as Vice President of this Tribunal in Robb v Transport Accident Commission [2004] VCAT 983 was distinguishable. They said that the child care costs unsuccessfully claimed in Robb's case were unconnected with the applicant's rehabilitation in contrast to Ms Dawson's situation. In any event in Robb's case, since the applicant had been engaged in housekeeping duties prior to the accident, she did have an entitlement to child care services under Section 60(2)(c) of the Transport Accident Act which Ms Dawson does not. They said that Robb was a pre-Charter decision. Moreover they said that Judge Bowman's approach in Robb failed to take into account the statement by Phillips JA in Salcedo that there may well be overlap between definitions in Section 60 [2003] VSCA 226; (2003) 8 VR 276 at [15].
6. They referred again to the judgment of Hedigan J in McRitchie where, amongst other things, his Honour said that heating, provision of rooms, food and lighting were all germane to rehabilitation of an injured person and seeking to distinguish between those matters and the rehabilitation was mere 'pettifogging' [2001] VSC 151; (2001) 33 MVR 242 at [21]. They said that the child care costs should be regarded as being germane and essential to Ms Dawson's rehabilitation in the same way as the provision of the basic accommodation entitlement in McRitchie's case was regarded. They referred to the wide meaning to be given to the concept of rehabilitation as stated by O'Bryan J in G. C. Wood and Son (Aust) Pty Ltd v Cullen [1991] VicRp 62; [1991] 2 VR 214, 225 and to my decision in Keler v TAC [2002] VCAT 445.
7. They referred to Section 27(3)(d) of the Act. They submitted that in the same way as the costs of an interpreter could be provided as a matter of discretion by the Commission as an expenditure incidental to the performance of its functions, so likewise the provision of child care services should be so provided. As to the meaning of the word 'incidental' they referred to a decision of the Court of Appeal in Vaughan v Legal Services Board [2009] VSCA 187 at [109]. They submitted that the child care services could be considered as incidental as being 'secondary or subordinate to, or supportive of, another service' and is rehabilitation of disability services. The source of the Commission's power or duty to make payment was, they said, the compensation entitlement provisions of Part 3 of the Act. Section 27(3)(d) was a provision which enabled the Commission to perform its obligation there under.
8. They said that the undisputed evidence was that the applicant could not 'access rehabilitation or manage her disability unless she has child care in place'. Therefore the interpretation of the statute favoured by the Commission 'breaches [Ms Dawson's] right to the enjoyment of family life and her daughter's right as a child to have her best interests upheld'. They said that Ms Dawson's personal integrity and quality of life was being 'severely compromised, breaching her right to privacy' and the Commission's interpretation 'breaches [Ms Dawson's] right to equality before the law, failing to allow for individual circumstances to be taken into account in the application of the legislative provisions to the case at hand'.
9. They said that the Commission was a public authority within the meaning of the Charter and its determination constituted a breach of Section 38 of the Charter. The Commission has fallen into error, they said, in construing the relevant provisions of the Act and had adhered to the incorrect interpretation. In any event, they said, adopting a blanket approach under traditional administrative law entailed a failure to give proper consideration to a matter for determination. They continued

to contend, as [the Commission] does, that the Commission has no discretion to make child care costs payable pursuant to s 60(2)(a) or s 27(3)(d) fails to recognise the Commission's fundamental interpretative obligation pursuant to s 32 of the Charter and that provision's capacity ... to render an interpretation that least infringes human rights. Moreover, in denying its s 38 obligations, [the Commission] is simultaneously denying the proper operation of the Charter - intended to apply to all public authorities as well as all legislative provisions in Victoria.

1. Turning to the third of the steps postulated by the Court of Appeal in Momcilovic, namely justification, they said

in the event that the Tribunal finds that the respondent is exercising a discretion under the [Transport Accident Act], the respondent will bear the onus of proving with cogent evidence that any restriction on that arising from the exercise of such discretion is justified with reference to the factors articulated in Section 7(2) of the Charter.

They said this subsection required 'limitations on human rights to be demonstrably justified'. They referred to the application under the Application under Major Crime (Investigative Powers) Act 2004 per Warren CJ [2009] VSC 381 at [147]. They submitted that no such cogent evidence had been provided. They said

the applicant estimates that her child care costs will be $156.80, plus the amortised establishment fee, per week. This would appear to be a disproportionately small sum in comparison with what will need to be spent by the Commission on the applicant if she did not succeed in her rehabilitation. Accordingly, it would seem difficult for the Commission, given the particular circumstances of the applicant, to justify its decision to refuse child care payments pursuant to s 60(2)(a) of the [Transport Accident Act].

More generally, with respect to the Charter, they said that Kracke v Mental Health Review Board [2009] VCAT 646 at [30]

reminds us that austere legalism should be avoided and that the Charter should instead be interpreted generously to give the "full measure of the fundamental rights and freedoms referred to".

1. They said that Section 17 of the Charter was modelled on Article 23 of the International Covenant on Civil and Political Rights ('ICCPR'). They said in accordance with the Explanatory Memorandum for the Charter, the term 'families' should be 'interpreted broadly so as to afford all families protection'. With respect to rights of the child, they referred to Article 24(1) of the ICCPR. Next they referred to Article 8(1) of the European Convention on Human Rights.
2. In J v London Borough of Enfield [2002] EWHC (Admin) 735; [2002] 2 FLR 1. In that case 'the court found that the element of culpability necessarily to establish a breach of Article 8 may be satisfied if the impact on family life was sufficiently serious and foreseeable'. They also relied on Bernard v London Borough of Enfield [2002] EWHC (Admin) 2282; [2003] HRLR 4 where the court was critical of a local authority's failure to take positive steps to enable the claimants and their children to lead a normal family life.
3. The TAC's interpretation of the Transport Accident Act they said 'prima facie limit[s] Ms Dawson's right to the enjoyment of family life and ... restrict[s] her daughter's right as a child to have her best interests upheld'.
4. They said Section 8 of the Charter guaranteeing equality before the law was modelled on Article 26 of the ICCPR. The guarantee was, they said, wider than the protections given by the Equal Opportunity Act 1995. They said the right to equality 'guarantees equality and fairness with regard to the enforcement and administration of the law and means that judges and other legal administrators must not apply legislation in an arbitrary or discriminatory manner'. They referred to Gauthier v Canada (633/95). They said that by refusing a flexible interpretation 'disability services' or 'rehabilitation services' under Section 60 and failing to recognise the broad discretions which Section 27 of the Act give, the Commission was 'applying the Act in an arbitrary manner and curtailing its discretion to take into account all considerations relevant to Ms Dawson's application'.
5. As to Section 13 of the Charter, they noted that it was modelled on Article 17 of the ICCPR. They noted that Bell J in Kracke's case said that the right protected by Article 17 encompasses person's 'right to ... personal development, to establish and develop meaningful social relations and to physical and psychological integrity, including personal security and mental stability' [2009] VCAT 646 at [616]. They referred to Toonen v Australia, Communication n 488/1992 CCPR/C/50/D/488/1992 where the Human Rights Committee decided that any interference with privacy 'must be proportional to the end sought and be necessary in the circumstances of any given case'.
6. As to the breadth of the concept of 'private life', they referred to Pretty v United Kingdom [2002] ECHR 427; [2002] 35 EHRR 1, [61].
7. They said that Article 8 of the European Convention had been regarded as providing protection against treatment which would be regarded as falling short of inhumane and degrading. They referred to Bensaid v United Kingdom [2001] ECHR 82; (2001) 33 EHRR 10, [46]. There the court noted that mental health was a crucial part of private life [47].
8. They referred to Bernard's case where the Council was in breach as a result of failing to provide a family with accommodation suited to the mother's disability. The judge stated

those entitled to care under Section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. [2002] EWHC 2282 (Admin), [32].

The physical and psychological effects suffered by Ms Dawson as a result of TAC's decision to deny her payment for child care services and thereby allow her access to rehabilitation, places her personal integrity at risk and thereby engages her right to privacy.

1. Mr C. Young of Counsel appeared on behalf of the Commission.
2. On behalf of the Commission, he submitted that the present dispute was about statutory construction and not 'about whether or not the Commission had properly and lawfully exercised a discretion'. As to Section 60(2)(c) he said that this provision

give[s] effect to a carefully expressed policy choice about the circumstances in which childcare costs are payable and to the relationship between the loss of earnings benefits and childcare costs.

He contended that the cost of child care is neither a disability service nor a rehabilitation service. He said

none of the human rights relied upon by the applicant properly arise in this case; what she seeks is a right to childcare and none of the rights she invokes protect such a right.

1. Nor said Mr Young, is Section 27(3)(d) relevant. He said

it is a provision necessary to ensure public financial accountability. It provides statutory authority for the Commission to make payments from a fund established by Parliament, without which payments from the fund would be unlawful.

He said the provisions in their present form date from an amendment to the Transport Accident Act in 2004. He referred to the second reading speech given by the Minister at the time.

1. As to Section 38 of the Charter, Mr Young said

childcare costs either are, or are not payable pursuant to the provisions of the Transport Accident Act. The Commission has no discretion to make them payable.

The criterion of reasonableness appearing in Section 60 goes to the quantum and not to the existence of the liability he submitted. He said

if the Commission is right, and childcare costs are payable only pursuant to s 60(2)(c) and not otherwise, then the applicant is asking the Commission to make an unauthorised payment contrary to the [Transport Accident Act]. Section 38 of the Charter simply adds nothing.

1. Mr Young said that the proper construction of the relevant provisions in the Transport Accident Act 'necessitates a consideration of text, context and purpose.'. He said, referring to Section 60(2)(c)

the Commission's express, positive and qualified liability to pay for such services pursuant to that specific paragraph carries with it the conclusion that liability to pay for such services does not arise pursuant to any other provision.

The two provisions, Section 60(2)(a) and Section 60(2)(c), he submitted have separate work to do. Entitlement to child care benefits is, he says, related to the entitlement to loss of earnings and loss of earning capacity benefits Sections 44 and 49. He said that the Minister's second reading speech 'could not be more plain. There can be do doubt that Parliament intended childcare services to be payable only pursuant to s 60(2)(c)'. This view was, he said, consistent with the decision of the Court of Appeal in Salcedo's case. He submitted the argument that child care can be regarded as either a disability or rehabilitation service had been specifically rejected by Judge Bowman in Robb's case.

1. As to the operation of Section 32 of the Charter he said that the construction of a statutory provision can only be influenced to the extent that a right properly arises or is engaged in the circumstance. He submitted none of the human rights relied upon 'when properly construed' were relevant to the construction of Section 60(2)(a). He noted that child care is a right protected by the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child and the Convention on the Elimination of all forms of Discrimination Against Women. Those rights as embodied in these international instruments were not, he said, embodied in Victoria's Charter. Section 44 of the Charter specifically notes that certain rights have been omitted and await further consideration.
2. He submitted that by its terms, Section 60 of the Transport Accident Act 'does not prevent or restrict the applicant from doing anything'. He said that Ms Dawson

requires no permission or approval from the Commission to obtain child care from a provider. It is quite wrong for the applicant to say that the Commission is "denying [her] access to childcare services".

1. Mr Young said that Section 60 as the Commission contends it should be construed does not interfere with Ms Dawson's privacy. He said

Just as it is for every member of the community to make such childcare arrangements as are suitable to them, and to pay for them from their income, so too for the applicant. That she bears the same burdens, in that respect, as every other member of the community does not show that the [Transport Accident Act] "interferes" with her rights

The construction which the Commission advocates was not, he said, arbitrary.

1. He submitted that to extend the meaning of 'disability services' and 'rehabilitation services' so as to encompass what is now sought 'crosses the line from interpretation into legislation and s 32 cannot be utilised to achieve that result'. He referred to R v Momcilovic [2010] VSCA 50, [115]. He submitted the proper meaning of Section 60(2)(a) was settled by Salcedo's case and Robb's case.
2. As to Section 27(3)(d) of the Act, according to Mr Young

Properly construed, s 27(3) is a response to the principle stated by the Privy Council in Auckland Harbour Board v The King [1924] AC 318 that payments cannot be made out of the fund except with statutory authority.

He said to regard Section 27(3)(d) of the Transport Accident Act as giving the Commission a broad discretion to make payments 'would be to engage in a wholesale rewriting of the [Transport Accident Act] that would render much of Pt 3 of the [Transport Accident Act] superfluous'.

1. The following provisions of the Transport Accident Act appear to be relevant to the determination of this proceeding. 'Disability service' is defined in Section 3 as follows:

'disability service' means the provision to or for a person who is disabled as a result of an injury in a transport accident of any service (other than a rehabilitation service or a hospital service) relating to attendant care, assistance, accommodation support, community access, respite care or household help, the provision of which service is an authorised service in accordance with section 23

The phrase 'rehabilitation service' is defined in the same Section as follows:

'rehabilitation service' means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, apparatus or other service (other than a disability service or a hospital service), the provision of which is an authorised service in accordance with section 23

(a) services to be disability services or rehabilitation services

Section 27 of the Act provides, inter alia, as follows:

(1) The Commission shall establish and maintain a Fund to be called the Transport Accident Fund.

(a) the transport accident charges and additional amounts paid under this Act;

(c) any amount received as a penalty for an offence against this Act or the regulations;

(d) any income from the investment of any money credited to the Fund and the proceeds of the sale of any investment;

(f) any money required or permitted to be paid into the Fund under this or any other Act;

(fa) money received by the Commission under Part 2A;

(fb) any money received by the Commission in relation to its functions under sections 12(1)(jb) and 12(1)(jc);

(g) all other money that the Commission receives under or for the purposes of this or any other Act.

(a) payments of compensation under this Act or that the Commission is liable to pay under any other Act and payments required by a determination of the Commission or the Tribunal to be paid out of the Fund;

(b) payments of damages that the Commission is liable to pay;

(c) any refund under Part 7 and any payment required or permitted to be paid out of the Fund by or under this or any other Act;

(d) any payment required or authorized to be made or which is for or towards the costs and expenses of or incidental to the performance of the functions or the exercise of the powers of the Commission;

(1) This section specifies amounts that the Commission is liable to pay as compensation in addition to any other compensation paid under this Act.

(2) The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident-

(a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs and ambulance services received in Australia because of the transport accident; and

(c) if the person, in the 30 days before the transport accident, was engaged in the care of a child and did not receive salary or wages in respect of that care, the reasonable costs incurred after the transport accident in employing, during the first 5 years after the death or injury, an authorised person to undertake in Australia care of the child, but payment is not to be made in respect of more than-

(i) if, at the time of the accident, the person was in full-time paid employment for 35 hours or more per week, a total of 10 hours per week of child care services;

(ii) if, at the time of the accident, the person was in paid employment for less than 35 hours per week, a total of x hours per week of child care services where "x" is-

(A) if the result of the following calculation is less than 40- 10 + (35 - the number of hours per week of paid employment)- that number; or

(iii) in any other case a total of 40 hours per week of child care services;

Also relevant Section 1 of the Act, which sets out its purpose.

The purpose of this Act is to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents.

Section 11 states the objects of the Transport Accident Commission as follows:

(a) to manage the transport accident compensation scheme as effectively, efficiently and economically as possible;

(b) to ensure that appropriate compensation is delivered in the most socially and economically appropriate manner and as expeditiously as possible;

(c) to ensure that the transport accident scheme emphasises accident prevention and effective rehabilitation;

(d) to develop such internal management structures and procedures as will enable it to perform its functions and exercise its powers effectively, efficiently and economically;

(e) to manage claims under the Accident Compensation Act 1985 as an authorised agent of the Victorian WorkCover Authority as effectively, efficiently and economically as possible;

(f) if appointed as an agent of a self-insurer under section 143A of the Accident Compensation Act 1985, to carry out the functions and powers of a self-insurer as effectively, efficiently and economically as possible.

According to Section 8 the following are the objects of the Act

(a) to reduce the cost to the Victorian community of compensation for transport accidents;

(b) to provide, in the most socially and economically appropriate manner, suitable and just compensation in respect of persons injured or who die as a result of transport accidents;

(c) to determine claims for compensation speedily and efficiently;

(d) to reduce the incidence of transport accidents;

(e) to provide suitable systems for the effective rehabilitation of persons injured as a result of transport accidents.

1. Turning next to the Charter of Human Rights and Responsibilities Act 2006 the following provisions appear to be relevant. Section 8 provides for recognition and equality before the law in the following terms:

(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

Section 13 provides protection to privacy and reputation as follows:

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have his or her reputation unlawfully attacked.

Section 17 provides protection for families and children.

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

Also relevant is Section 7(2) which deals with limits on human rights in the following terms:

(2) 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, and taking into account all relevant factors including-

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Section 32 deals with the interpretation of Victorian laws in accordance with the Charter in the following terms:

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

Section 38 regulates the conduct of public authorities and provides inter alia

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

1. I can deal immediately with Section 38 of the Charter. I accept the submission put by Mr Young that Section 38 'adds nothing' to the resolution of this dispute.
2. It is not disputed that the Transport Accident Act is a 'public authority' within the definition of that term in the Charter. The Commission has certain liabilities to pay compensation under Part 3 of the Act. It has under Section 27 authority to expend monies from the fund established under the Act for the purpose of defraying these liabilities and incidental matters. I see nothing in the Act which gives the Commission power to make ex gratia payments. The Commission is authorised to pay out as compensation only what it is bound by statute to pay. There is no discretion. Ultimately I did not understand the applicant's Counsel to contend that the amounts which she seeks to be paid are to be paid in any character other than as compensation under the terms of the Transport Accident Act. If these amounts are properly payable as compensation, a matter to which I will turn shortly, then the Commission has acted wrongly in refusing to make payment. I will set the Commission's decision aside and make provision for the liabilities to be met. On the other hand, if I conclude that the Commission properly construed the Transport Accident Act in light of the Charter and properly adjudicated its liabilities, then in terms of Section 38(2) the Commission could not reasonably have acted differently or made a different decision as a result of the provisions of the Transport Accident Act. Subsection (2) of Section 38 would immunise it from any liability under Section 38. In the present proceeding the question for Charter purposes is what effect does Section 32 of the Charter have upon the true construction of the Transport Accident Act and its operation relative to the matters before me.
3. I turn to consider that question. As the Court of Appeal in Momcilovic observed, the first step in such circumstances is to determine the true meaning of the relevant statutory provision in light of the non-Charter maxims as to construction and provision such as the Interpretation of Legislation Act together with the interpretational effect of Section 32.
4. The court made it plain that this process is an orthodox process of construction or interpretation. It does not authorise or require what Bell J described in Kracke as 're-interpretation'. That is, an effective modification of a statutory provision so as to render it conformable to the provisions of the Charter.
5. An initial question that arises with respect to a provision which pre-dated the Charter is whether the altercation of Section 32 can have the effect that the same provision say a subsection of an ordinary statute could mean one thing in 2004 before the Charter and have a different meaning in 2010 by the operation of Section 32 of the Charter. Mr Young, on behalf of the Commission, contended that if a statutory provision had acquired a fixed meaning by authoritative judicial decision before the Charter came into force, that meaning would remain even after the Charter despite the application of Section 32. If no fixed meaning had authoritatively been ascribed to a provision before the Charter came into force, the provision was to be construed in light of the Charter leaving open the possibility that a different result as to its true meaning will be reached post-Charter than would have been reached had the matter been adjudicated pre-Charter.
6. I find no support in the Charter or elsewhere for this type of distinction. By enacting Section 32 Parliament has necessarily added a new factor to the equation in interpreting Victorian legislation. There must be a substantial possibility, perhaps even a likelihood, that the introduction of a new factor into the interpretational equation will necessarily modify the ultimate result. I see no reason why the existing authoritative determination by a court pre-Charter can have the effect of 'freezing' the operation that Section 32 would otherwise have with respect to the relevant provisions.
7. I turn first then to the proper interpretation of the two relevant paragraphs in Section 60 of the Transport Accident Act in light of the ordinary non-Charter maxims of construction. Certainly there is nothing in the primary words of the definition either of 'disability service' or 'rehabilitation service' which would lead one to suppose that the concept included the cost of child care services. The applicant's submission here is however that that concept is implicit in the definitions as something which is incidental and a necessary implication to render these services effectively available to a person in Ms Dawson's circumstance.
8. The contrary argument relied on by the Commission is to contend that the fact that the issue of child care is dealt with in paragraph (c) carries with it a necessary negative implication that it is not to be found in any implied or incidental form dealt with in paragraph (a) of Section 60(2) of the Act. This might be regarded as an application of the well known Latin maxim of construction expressio unius est exclusio alterius. The phrase translates as 'the expression of the one is the exclusion of the other'. Dr Freckelton said that this maxim was inapplicable because child care was to be found dealt with in other provisions of the Act. For present purposes it is unnecessary for me to go to these other references. The Section numbers are to be found in my summary of the argument put by Counsel for the applicant. I note, for instance, that Section 145 deals with benefits to the victims of accidents which occurred before 1987. The other provisions cater for certain very specific circumstances. Dr Freckelton's submission appeared to proceed from the assumption that the maxim's application was dependent upon showing a singularity of express reference. In truth, singularity is no essential part of the maxim at all. The more frequently express references to a subject matter appear in a statute, the less likely it is that Parliament concluded to deal with it implicitly elsewhere.
9. The maxim must be used with care. Dr Freckelton referred to Houssein's case and other examples of judicial warning. I might add a reference to the judgment of Neave JA in Davidson v Victorian Institute of Teaching [2006] VSCA 193; (2006) 25 VAR 186, 189 [13]. Her Honour footnotes a reference to Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 560 where four justices of the High Court referred to the rule as 'a maxim which it has often been pointed out it is dangerous to rely on'.
10. Nevertheless, in my view, the operation of the maxim here is persuasive. Ultimately the maxim is an invitation to consider a provision in its statutory context. I accept that we see the entitlement to child care expressly granted by paragraph (c) being by its structure linked to and mirrored, in a negative sense, with the entitlement to loss of earnings and a loss of earning capacity benefits. The effect of the formula subjoined to paragraph (c) is that the larger the entitlement to loss of earning or loss of earning capacity benefits the lesser will be the entitlement to child care and vice versa. The provisions of subsections (a) and (c) represent relatively recent 're-jigging' of compensation entitlements in 2000 and 2004. It is therefore not unreasonable to regard them as exhibiting a structural plan in a way that provisions introduced willy-nilly by way of amendment to a consolidating statute over the years might not. Again the remarks of the Minister, Mr Hulls in moving the second reading for the amendments of 2004 are consistent with the view advanced by the Commission namely that the very specific further provisions, such as Section 61A(1), Section 145 etc referred to by the applicant's aside, the general scheme is that child care expenses are allowed, if at all, under paragraph (c) of Section 60(2). The relevant passage is

Historically, both child-care and housekeeping benefits were only available to claimants who were "mainly engaged" in this activity in the month before the accident. This precluded child-care and housekeeping support being provided to people who were working at the time of the accident.

This bill substantially reforms and improves these benefits in two major respects:

A new separate child-care benefit will be created and made available to clients engaged in this activity before the accident.

A new home services benefit will be created that combines the current non-child-care aspects of the housekeeping benefit with the domestic services benefit, creating a single widely available benefit for TAC clients who need support in the home.

The government believes that this new approach will, for the first time, provide adequate home support and child-care services to working parents.

The government has taken a prudent approach in ensuring that appropriate limits will apply where a claimant is also in receipt of income benefits. The bill also introduces an access test that addresses the capacity of others in the household to perform these tasks. The TAC estimates that up to 1500 additional claimants per year will gain access to new child-care and home services benefits.

This is the view that Judge Bowman took in Robb's case. In that case, Ms Robb did not qualify for child care payments under paragraph (c). It was suggested however that the amounts could be payable to her as compensation under paragraph (a) of Section 60(2). At [32] Judge Bowman summarised one of the Commission's submissions as follows

There is no circumstance in which compensation for the care of a child in accordance with sub-paragraph (c) can constitute either a disability service or a rehabilitation service for the purposes of sub-paragraph (a). This is put as an absolute proposition.

In my opinion the arguments advanced by Mr Solomon [Counsel for the Commission] are correct.

In my opinion, if s.60(2)(c) is not a self-contained code in relation to housekeeping services and child care, it is something which approaches that.

The compensation sought either falls within sub-paragraph (a) or it does not. It either falls within sub-paragraph (c) or it does not.

In summary, I am of the view that the argument that Michelle was entitled to compensation because the care provided by Lee [her mother and guardian] to Nathan is in fact a disability or rehabilitation service within the meaning of sub-paragraph (a) is not a valid argument. Accordingly, Michelle is not entitled to succeed in this regard.

1. Another Latin maxim of interpretation which points in the same direction as the 'expressio unius' maxim is 'expressum facit cessare tacitum'. This maxim has been said to be essentially untranslatable. My own attempt at translation would be 'the express brings the implied to an end'. Dixon J, as he then was, in the matter of The King v Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529, 550 said the maxim entailed

the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction.

1. What then of the application of Section 35 of the Interpretation of Legislation Act? The difficulty in applying a provision such as Section 35 is the difficulty in identifying the relevant purpose of the enactment. I have quoted above the objects of the Transport Accident Act. It should be noted that whilst one of objects is to provide 'just compensation' the first objective is to reduce the cost of compensation. It is difficult to spin from these purposes a purpose that would lead one to conclude that a claimant friendly interpretation of every compensation entitlement should be adopted. Moreover there is significant difficulty in construing Acts by reference to purposes that are stated at so high a level of abstraction. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 the decision of the Northern Territory Court of Appeal was reversed by the High Court. Their Honours criticised the Court of Appeal for resolving a particular matter of construction in favour of the Revenue on the basis that the relevant legislation was a Taxing Act and its purpose would best be advanced by adopting a construction which favoured the Revenue and favoured revenue collection. Taxing Acts provide for the collection of tax; but they are not to be construed as providing for its collection in all circumstances. Similarly a compensation statute provides for the payment of compensation; but it cannot be regarded as providing for the payment of compensation in all circumstances. Parliament's purpose is to be divined by an analysis according to the classical method of interpretation of each individual provision. In my view, the Charter aside, the constructions of the relevant provisions advocated by the Commission are clearly the correct ones.
2. Does Section 32 of the Charter alter this? It is significant as the Commission correctly observed that Section 44 of the Charter, providing for the review after four years of operation and for the consideration of the addition of human rights including those under the International Covenant on Economic, Social and Cultural Rights is an indication that as of 2010, these rights are not protected by the Charter. The fact that they are separately enunciated, albeit not in Victorian law, indicates that these rights, such as the right to child care, are not directly protected by the Victorian Charter. It may be conceded, as Dr Freckelton submitted on behalf of the applicant, that if on the true construction of the existing rights they embody in circumstances such as the present an entitlement to child care services as part of rehabilitation or disability services under the Transport Accident Act, the fact that they may be dealt with more explicitly and at greater length in the future is neither here nor there. The question remains whether the present Charter has the effect through Section 32 which is contended.
3. I turn first to the contention that the Commission's construction of these paragraphs is offensive to the right protected by Section 8 of the Charter, namely equality before the law. Counsel for the applicant say that the Commission's refusal of a flexible interpretation of 'disability services' and 'rehabilitation services' and in denying the broad discretion said to be based on Section 27 'in an arbitrary manner' the Commission is engaging Ms Dawson's right to equality before the law. This submission begs the question as to what is the true construction of the relevant paragraphs in Section 60(2). For the reasons which I have sought to give, I do not believe that the Charter aside the Commission's interpretation is incorrect. I cannot see anything in Section 8 of the Charter as applied as an interpretational tool by Section 32 which would alter this. I accept the submission made by the Commission that Section 27 is not intended to bestow discretion upon the Commission as to payment of what would otherwise be compensation, but rather simply to authorise the disbursement of monies, the expenditure of which otherwise has a legal justification. I reject the contention that the Commission's approach is arbitrary.
4. Next I turn to Section 17 of the Charter which deals with protection of families and children. J v London Borough of Enfield [2002] EWHC (Admin), 35 the first case relied upon by the applicant is the decision of Elias J sitting as a judge of the High Court of Justice Queens Bench Division, Administrative Court. The question before his Lordship was whether Article 8 of the corresponding provision in the European Convention was entailed in an exercise of power and discretion by a local Council under a variety of legislation including the Children Act and the Local Government Act which would see mother and child separated from one another. His Lordship concluded that such a result would be offensive to Article 8. In the present circumstances there is no threat that this applicant will be separated from her children. On this point, the relevant right does not seem to be engaged.
5. The next authority relied on is R v London Borough of Enfield Ex Parte Bernard [2002] EWHC 2282 (Admin). Once again this proceeding related to an issue of housing. At [32] Sullivan J said

I accept the defendant's submission that not every breach of duty under Section 21 of the 1948 Act will result in a breach of Article 8. Respect for private and family life does not require the State to provide every one of its citizens with a house ... however those entitled to care under Section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life.

In my view the breach of human rights found to have occurred in Bernard's case has no analogue here. Mr and Mrs Bernard were largely disabled and merited the description of being highly vulnerable. In the present instance there is no question of this applicant's being deprived of housing. She is entitled to loss of earning capacity benefits, which are payable by the Commission. The denial of any monetary entitlement, at least where a person of modest means is concerned, has the potential to affect that person's family life. I am not persuaded however that for that reason the rights under Section 17 are engaged in every such circumstance.

1. Moreover as Mr Young pointed out, care needs to be taken in applying European authorities based on Article of the European Convention to the Victorian Charter. Article 8 provides as follows:

Article 8 - Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The contrast between this provision and Section 17 is clear enough. The prohibition in Sub-Article (2) against interference by a public authority with private and family life is clearly enough engaged by determinations of local government authorities as to the housing of families in a way which a simple failure to pay a monetary benefit under a compensation scheme does not engage Section 17 of the Victorian Charter.

1. I turn next to Section 13 of the Charter which deals with the protection of privacy. The cases relied on in support of the engagement of this right are the decision of Justice Bell in Kracke, the decision of the Human Rights Committee in Toonen v Australia, Pretty v United Kingdom, Bensaid v United Kingdom and M. G. v Germany Communication n 1482/2006, CCPR, 93rd sess. General statements as to the importance of personal autonomy, moral integrity and so forth, must in my view be read in the context of the matters which were before the relevant court, tribunals or Committees for consideration. Kracke's case dealt with the involuntary detention of an applicant under Mental Health legislation. M. G.'s case entailed a complaint against being ordered to undergo compulsory medical treatment without the right to be heard. In Toonen's case the complaint was as to provision of the Tasmanian criminal law which prohibited homosexual acts. Pretty's case was a complaint by the applicant who was paralysed and suffering from a degenerative and incurable disease, alleging that the refusal of the Director of Public Prosecutions to grant an immunity from prosecution to her husband if he assisted her in committing suicide infringed various Articles of the European Convention. Bensaid's case again related to the detention of an individual based on mental health considerations. The distance between these sorts of cases and the matters before the Tribunal in the present proceeding is obvious. I am at a loss to understand how refusal of a monetary entitlement can amount to a challenge to one's right of privacy.
2. The applicant's Charter arguments would necessarily entail the view that for instance a hypothetical government medical benefits scheme would be offensive to the Human Rights protected by the Victorian Charter if the relevant medical benefit were not accompanied by a special transport subsidy for remote area patients who had to travel long distances to see for instance specialist practitioners or to avail of high tech equipment, such as magnetic resonance imaging equipment. The Charter, which generally does not extend to economic and social rights, surely does not seek to reach this sort of situation. No relevant human right is engaged.
3. If follows in my view that the Commission's construction of the relevant provisions of the Transport Accident Act 1986 was correct in light of all relevant considerations including Section 32 of the Charter of Human Rights and Responsibilities 2006. For reasons previously explained, this conclusion necessarily immunises the Commission from any liability under Section 38 of the Charter.
4. The respondent's determinations are affirmed.