1. I also struck out Dr Rein's claim under the Charter of Human Rights and Responsibilities Act 1996 (Vic) (Charter) but made provision for her to apply for that aspect of the proceeding to be reinstated.
2. The latter order was made for two reasons. First, because Dr Rein had not made the Charter based claim in her applications to the Tribunal but she referred to them at the hearing of the respondents' application for summary dismissal of the EO Act claims. The consequence was the Charter claims were not fully explained and the respondents had not had an opportunity to properly consider them.
3. Secondly, at the time of the summary dismissal hearing, a proceeding was pending before the Tribunal's Review and Regulation list. That proceeding concerned an application for review of the decision made by the Board under the National Law to refuse Dr Rein's application for registration as a nurse. I was of the view that the registration related proceeding should be completed before any consideration was given to Dr Rein's Charter based claims.
4. On 25 August 2016, the Tribunal (constituted by Deputy President Lambrick and Members Barry and Pearson) made an order affirming the Board's decision to refuse to grant Dr Rein registration as a nurse.[3] The Tribunal's reasons for decision stated that it accepted the opinion of Associate Professor Hassett after she conducted a medical assessment of Dr Rein on behalf of the Board. In the light of that opinion and the National Law, the Tribunal was satisfied that Dr Rein had an impairment (a personality disorder) and that the impairment would detrimentally affect her ability to act as a registered nurse. The Tribunal concluded that Dr Rein's thought processes were not compatible with working in a profession that required her to cooperate with, and respond to, others in an appropriate manner.

Dr Rein's reinstatement application and Charter claims

1. On 9 September 2016, Dr Rein swore an affidavit in support of her application for reinstatement. The affidavit set out matters of concern to Dr Rein, including some arising from the Tribunal's Review and Regulation list decision. It did not describe or clarify the Charter based claims Dr Rein wished to be considered.
2. On 25 October 2016, I made orders concerning Dr Rein's application for reinstatement. In particular, I ordered that:

By 9 November 2016, the applicant must send to the Tribunal and the respondents details of the basis on which she seeks reinstatement of the proceeding to deal with her Charter claim. The applicant must specify the Charter sections relied on and explain how they arise in the circumstances of this proceeding (H243/2016). The applicant must state what orders she seeks under the Charter. The applicant may wish to make submissions on:

(a) the application of section 75 of the Equal Opportunity Act 2010 (Vic) to the definition of 'discrimination' in the Charter, as referred to in paragraphs 48 to 50 of the reasons for decision issued in this proceeding on 28 June 2016 (the reasons);

(b) the application of section 7 of the Charter to the circumstances of this proceeding, as referred to in paragraphs 52 to 55 of the reasons; and

(c) any other matter relevant to this proceeding but which does not amount to seeking review or appeal of the Tribunal's decision in Z359/2016 [the Review and Regulation List proceeding referred to above].

1. Dr Rein filed a document on 8 November 2016 which contained background material and submissions in support of her application for reinstatement. I have endeavoured to capture the matters she raised which concern the application for reinstatement on Charter grounds.
2. I have proceeded on the basis that Dr Rein sought:
   • (a) Reinstatement of the proceeding;
   • (b) Referral of the proper interpretation of section 75 of the EO Act to the Supreme Court under section 33 of the Charter;
   • (c) Findings that the respondents had breached her Charter based human rights to recognition and equality before the law (section 8), privacy and reputation (section 13); freedom of expression (section 15); property (section 20); and a fair hearing (section 24);
   • (d) Findings that the respondents had breached human rights said to be recognised by international law including the right to happiness and to sell one's own labour;
   • (e) An order that the respondents return to her or a nominated medical authority all of the medical records held about her; and
   • (f) An order that she be registered as a nurse whether subject to conditions concerning registration or otherwise.
3. I am able to dispose of some of the above matters briefly.
4. In my summary dismissal decision I considered Dr Rein's request that I refer to the Supreme Court the question of how to properly interpret section 75 of the EO Act in the light of the Charter. I refused to do so for the reasons given in paragraph [62] of that decision and so will not consider item (b) above further.
5. Although section 32(2) of the Charter states that international law may be considered when interpreting Charter provisions, it does not allow for the expansion of the human rights protected by the Charter or incorporate any other human rights. As the Charter does not contain a right to happiness or a right to work or sell one's labour, I cannot consider item (d) above further.[4]
6. In her submissions and at both hearings before me, Dr Rein expressed a deal of concern about the content of medical records held by various people and entities, including the respondents. Her concerns related to the content and accuracy of the records, how they came into the hands of various people and entities and how some entities, including this Tribunal, had handled her records. As I understand it, these concerns have been in existence since around the 1980's and were apparently the subject of an investigation by the State Ombudsman in around the early 1990's. Relevant here, Dr Rein complained that Dr Hassett unduly relied on old records when making her 2016 report to the Board about Dr Rein's registration application and failed to give proper weight to other reports and opinions. I understood this group of concerns to be behind Dr Rein's application for return of records held by the respondents and a complaint that the consequence of all of these events is that she has not had natural justice or a fair hearing in the past.
7. While it is correct that section 13 of the Charter contains a right not to have one's privacy unlawfully or arbitrarily interfered with, that does not confer power on this Tribunal in this proceeding to make the order Dr Rein seeks. Complaints about the handling of medical and other similar health records arise under the Health Records Act 2001 (Vic). Given that the events of concern occurred well before the Charter or the Health Records Act 2001 (Vic) came into force and there is a 12 month limitation on making complaints under the latter Act,[5] I see no basis on which a complaint could now be made under either the Charter or the latter Act. The fairness or otherwise of past proceedings and decisions is not a matter I can revisit. That includes historical concerns Dr Rein raised about dealings with registration and like fees. Item (e) above will not be considered further.
8. In the course of hearing this proceeding I had more than once informed Dr Rein that, in the context of the National Law, the Tribunal arguably had no power under the EO Act or the Charter to make an order that she be registered as a nurse. Certainly it was unlikely that the Tribunal would exercise its discretion to make such an order, if it had the power to do so, in the light of the National Law. I told her that, at best, the Tribunal could make a declaration that one or more of her Charter based human rights had been breached. As the Tribunal has heard and decided Dr Rein's application for review of the Board's most recent registration decision, item (f) is not a matter I can consider any further.
9. Dr Rein's written and oral submissions traversed a range of historical events and matters which unfortunately did not assist me, either because they were not relevant or presumed the proceeding would be or had been reinstated. I have referred below to those matters Dr Rein raised which have been relevant to my decision.
10. I will now turn to the substantive issues for consideration.

1. The respondents contended that the proceeding should not be reinstated where, despite having a number of opportunities to do so, Dr Rein had not articulated her Charter based claims in a manner which could be understood. While Dr Rein's submissions made numerous references to Charter provisions, she did not explain how they were relied on as a basis for reinstatement. Dr Rein had not clarified how she said the section 8 Charter right had been breached. The respondents noted that a large amount of the material was directed at historical factual matters that was not relevant to the conduct of the respondents or to the matter dealt with in the Review and Regulation decision.
2. The respondents contended that the test for deciding whether to reinstate the proceeding is not the same as whether to strike out a proceeding. The Tribunal is not required to take Dr Rein's claims at their highest. It is for Dr Rein to demonstrate there is a claim the Tribunal ought to hear.
3. While I accept these submissions generally and agree that Dr Rein has failed to clearly explain why she says the Charter has been breached, given she is self represented I am not willing to refuse the reinstatement application on these grounds alone. As will become apparent, there are more substantial difficulties with Dr Rein's claim which render it inappropriate for reinstatement.

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

1. As a consequence of Bell J's decision in Goode v Common Equity Housing,[6] it is clear that, in respect of an act or decision of a public authority, where an applicant may seek relief or remedy for unlawfulness under one Act (such as the EO Act), then a claim for relief or remedy for unlawfulness may also be made under the Charter.
2. The respondents contended that, as the EO Act claims have been dismissed, there is no act or decision to now be brought under the Charter. Further, they said the consequence of the decision under section 75 of the EO Act is that the right to relief or remedy does not arise as the respondents were permitted to discriminate because the conduct in issue was authorised under the National Law. The submissions described section 75 as providing a 'complete exception' which prevents a claim for a remedy or relief arising rather than removing the right or remedy. The respondents submitted that, as section 75 applies, there was no entitlement to relief or remedy under the EO Act and so there can be no Charter proceeding.
3. As I understand the respondents' submission, it effectively says that section 75 of the EO Act always operated such that the conduct Dr Rein complained about could not be the subject of an EO Act claim because it was authorised or permitted under the National Law. I understand that it is contended that section 75 operates like a jurisdictional bar.
4. I do not accept that section 75 of the EO Act operates in that way. It is a general exception provision which must be demonstrated to apply to the alleged discriminatory conduct. Unless and until section 75 of the EO Act is found to apply, a claim may be made for relief or remedy under section 39(1) of the Charter.
5. That view is supported by the definitional sections in the EO Act.
6. Section 7 of the EO defines 'discrimination' as direct or indirect discrimination on the basis of an attribute or a contravention of specified sections. Provisions in the EO Act state when certain acts will amount to prohibited discrimination in the specified areas of life. Section 13 describes when discrimination is not prohibited. It says:

(1) This Act does not prohibit discrimination to which a Division of Part 4 applies if -

(b) the conduct constituting discrimination under that Division also constitutes discrimination under another Division of Part 4 and an exception in the other Division applies; or

(2) An exception or an exemption referred to in subsection (1) is a defence to discrimination, and the person seeking to rely on the exception or exemption has the burden of proving that it applies.

1. Section 13(2) makes it plain that the various general and specific exceptions in the EO Act operate as defences which must be proved.[7]
2. In these circumstances, I do not accept the respondents' contention that there was no relief or remedy able to be sought by Dr Rein under the EO Act and so no claim was available under the Charter. Rather Dr Rein's claim raises the same kind of circumstances as were considered in Goode. In Goode, the Charter claim could be made even though the Tribunal found that the related discrimination claims were not proven. I note in particular that was Justice Bell's decision even in circumstances where a claim of discrimination in employment was dismissed by the Tribunal because Ms Goode did not fall within the definition of employee in the EO Act and so that claim had no legal basis.
3. Although the effect of section 75 of the EO Act was that the acts and decisions of the Board Dr Rein sought to challenge were lawful under the EO Act that was not the case at the time the application was made - it was necessary for the exception to be relied on and proven. At the time the EO Act claim was made, the lawfulness of the Board's conduct was open to challenge. In my view section 39(1) should be read as being directed to the availability of a Charter claim at the time the foundation proceeding was commenced. That approach is consistent with the decision in Goode.
4. At the time Dr Rein made her EO Act claim she was entitled to seek a remedy or relief under that Act and so the Charter based claim was able to be made.

The meaning of 'discrimination' in the Charter

1. In my earlier reasons, I referred to a discussion in the decision in Kuyken v Chief Commissioner of Police,[8] as to whether the meaning of 'discrimination' in the Charter might be broader than its meaning in the EO Act.
2. The Charter definition of 'discrimination' is 'discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act.'
3. The question raised in Kuyken was whether discrimination under the Charter refers only to the attributes in section 6 of the EO Act or whether it includes reference to the various EO Act exceptions such as section 75. His Honour, Justice Garde, did not need to resolve the issue.
4. The respondents contended that the fact that the definition of 'discrimination' in the Charter refers to its meaning within the EO Act means it ought to be read as taking into account the exceptions and all other relevant provisions. The respondents drew attention to the fact that the Charter definition does not simply refer to the section 7 definition which would have made plain the exceptions are not included.
5. In my earlier reasons, I suggested that, if the term 'discrimination' in the Charter did not include reference to the exceptions, Dr Rein's claim of a breach of the section 8 Charter right could proceed. That was because, if section 75 was not taken into account, it might be contended that the Board's decisions interfered with the enjoyment of her human rights without discrimination or mean that she did not have equal and effective protection against discrimination.
6. Dr Rein argued that discrimination in the Charter should not be read as including the various exceptions in the EO Act and so a narrow reading should apply by referring only to direct and indirect discrimination on the basis of an attribute or a breach of one of the specified provisions.
7. I do not need to resolve the question raised above about the potential differences in meaning in the term 'discrimination' because I consider Dr Rein's Charter claims to be hopeless even on her preferred reading of the definition.

Whether the Board could reasonably have made any other decision

1. Section 38(1) of the Charter prohibits a public authority from acting in a way that is incompatible with a human right or, in making a decision, failing to take into account a human right. Section 38(2) says that section 38(1) does not apply if, as a result of a statutory provision, the public authority could not reasonably have acted differently or made a different decision.
2. At the reinstatement hearing, Mr Cadman contended for the respondents that the Board could not have made any other decision given it was within the National Law and entirely reasonable to require a medical assessment to be undertaken and to then take the results into consideration when deciding whether to register Dr Rein.
3. I understand Dr Rein's claim to be that, contrary to section 38(1) of the Charter, the Board acted incompatibly with a human right when it required her to attend a medical assessment and when it decided to refuse her application for registration.
4. The Tribunal's decision in the Review and Regulation proceeding has affirmed the Board's decision having regard to its powers under the National Law and the evidence available as to Dr Rein's capacity to undertake the duties of a nurse.
5. Further, the Tribunal's Review and Regulation decision shows that the Tribunal saw no less restrictive way to allow Dr Rein to be registered. At paragraph 40 the Tribunal said this, referring to Dr Hassett's report:

We accepted the findings contained in the comprehensive report. We consider that Dr Rein has an impairment: namely, a personality disorder in the terms described by Associate Professor Hassett. We are further satisfied that the impairment would detrimentally affect her ability to act as a registered nurse. Her thought processes are not compatible with working in a profession that requires her to cooperate with, and respond to, others in an appropriate manner. She has not yet addressed any of the mental health issues raised, over many years, preferring to ignore their existence.

1. In circumstances where the actions of the Board Dr Rein seeks to challenge under the Charter have been considered and affirmed by the Tribunal on a merits review, I am not persuaded that Dr Rein could prove that the respondents breached section 38(1) of the Charter. I consider it is more probable than not that, as a result of the National Law, the Tribunal would find the Board could not reasonably have acted differently or made different decisions about Dr Rein's registration application.

Any limitations on human rights can be justified

1. I am also satisfied that, if the Board's decisions limited Dr Rein's Charter rights, that could be justified under section 7(2) of the Charter.
2. Section 7(2) of the Charter provides that 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 certain matters. They include:
   • The nature of the right;
   • The importance of the purpose of the limitation;
   • The nature and extent of the limitation; and
   • The relationship between the limitation and its purpose and any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
3. Section 75 of the EO Act has a different focus to the justification process set out in section 7(2) of the Charter. However, the reasons why section 75 of the EO Act rendered any alleged discrimination lawful are also reasons why any limitation on the rights mentioned may be justified.
4. The National Law gave the Board express powers to take the actions Dr Rein complains about. Allowing the Board to require medical assessments to be completed as part of the registration decision making process raises the possibility that a medical condition within the EO Act meaning of 'disability' may be relied on and that someone's rights to recognition and equality before the law and privacy may be the subject of interference.
5. I understand Dr Rein to characterise her wish to be registered and work as a nurse as an aspect of her section 15 Charter right to freedom of expression. While I do not necessarily accept the section 15 Charter right is engaged in the way Dr Rein describes, I do see that giving the Board power to decide whether to register a person raises the possibility that they will not be able to undertake work they prefer and in so doing express themselves.
6. It is apparent from the Tribunal's Review and Regulation decision that it was satisfied that the Board had made the appropriate decision having regard to the evidence before it and the Board's statutory powers and responsibilities. It had careful regard to Dr Hassett's report in circumstances where Dr Rein produced no alternative report or expert medical opinion. Like the Board, the Tribunal accepted and gave considerable weight to that report. As discussed above, no less restrictive means of allowing Dr Rein to practice was identified.
7. In those circumstances, it is difficult to see how the Tribunal could now conclude under the Charter that the Board's obtaining and use of the report to refuse the registration application was a breach of Dr Rein's Charter rights. It is necessary to be mindful that none of the Charter rights are unlimited. Given the express powers granted to the Board under the National Law, I am satisfied that, should there have been an interference with Dr Rein's Charter rights, that could be justified under section 7(2) of the Charter.

1. Having regard to all of the matters raised, I am not persuaded that Dr Rein's application ought to be reinstated so as to enable the alleged Charter breaches to be considered.

[1] Rein v Australian Health Practitioner Regulation Agency (Human Rights) [2016] VCAT 1065.

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of:

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of subsection (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

(3) Sections 50(3) and 63(1) prevail over this section to the extent of any inconsistency between them.

[3] Rein v Nursing and Midwifery Board of Australia (Review and Regulation) [2016] VCAT 1426.

[4] Section 11 of the Charter contains a right to freedom from forced work in the form of slavery, servitude or forced or compulsory labour. That provision does not contain an absolute right to work.

[5] See section 51(d) of the Health Records Act 2001 (Vic).

[6] [2014] VSC 585 at paragraph 39.

[7] By contrast, section 12(2) makes it plain that, if conduct is a special measure, it is not discrimination at all.

[8] [2015] VSC 204 at paragraphs 75 to 78.