Human rights
Thursday, 02 April 2015

Fertility Control Clinic v Melbourne City Council - April 2015

The Commission has intervened in this Supreme Court proceeding brought by the Fertility Control Clinic in East Melbourne, against the Melbourne City Council.

The proceeding relates to protesters outside of the Fertility Control Clinic, which provides reproductive health services, and the Council’s duties under Division 1 of Part 6 of the Public Health and Wellbeing Act 2008 (Vic).

Division 1 of Part 6 of the Act provides that:

  • Council has a duty to remedy as far as is reasonably possible all nuisances existing in its municipal district (section 60).
  • If a person believes that a nuisance exists, they may notify the Council, and the Council must investigate such a notice. If a nuisance is found to exist, the Council must take certain steps (section 62).

The Council has raised the following Charter rights of the protesters: the right to freedom of religion (section 14), the right to freedom of expression (section 15), and the right to peaceful assembly and freedom of association (section 16).

The Council has raised the following two Charter questions:

  1. Whether the interpretation of the term ‘nuisance’ in Division 1 of Part 6 of the Public Health and Wellbeing Act 2008 sought by the Fertility Control Clinic in this proceeding would contravene s 32(1) of the Charter by unjustifiably limiting the rights in sections 14, 15 and 16.
  2. Whether the Council is required to comply with s 38(1) of the Charter in determining what action to take to abate any nuisance arising in its municipality, when performing functions and exercising powers pursuant to sections 60 and 62 of the Public Health and Wellbeing Act 2008.

The Commission has filed written submissions on the operation of the Charter.

The matter is scheduled to be heard in June 2015.