Charter of Human Rights and Responsibilities Act
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Victoria was the first Australian state to establish a charter that explicitly protects human rights.
The Australian Capital Territory (ACT) has similar human rights legislation (Human Rights Act 2004 (ACT)), as does Queensland (Human Rights Act 2019 (Qld)).
The Human Rights Charter provides a framework for the protection and promotion of human rights in Victoria. It places legal obligations on parliament, courts and tribunals, and public authorities including government departments, local councils and certain bodies that execute a public function (s 4).
The Human Rights Charter creates a ‘dialogue model’ of rights (i.e. a constructive and continuous conversation about human rights) for public authorities, parliament, courts and the Victorian community. The dialogue model is designed to ensure that human rights are considered in the development of laws and policies, in the delivery of public services, and in the government’s decision-making. The model encourages each part of our democratic system to play a role in protecting and promoting human rights.
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Most of the human rights protected by the Human Rights Charter are drawn from the International Covenant on Civil and Political Rights. The 20 Human Rights Charter rights include:
‘freedoms’ that reflect traditional civil liberties;
‘substantive rights’ that reflect human autonomy and dignity; and
‘procedural rights’ that apply to judicial and legal processes.
Freedoms:
freedom from forced work (Human Rights Charter s 11);
freedom of movement (Human Rights Charter s 12);
freedom of thought, conscience, religion and belief (Human Rights Charter s 14);
freedom of expression (Human Rights Charter s 15);
freedom of association and peaceful assembly (Human Rights Charter s 16).
Substantive rights:
right to recognition and equality before the law (s 8);
right to life (Human Rights Charter s 9);
right to protection from torture and cruel, inhuman or degrading treatment (Human Rights Charter s 10);
right to privacy and reputation (Human Rights Charter s 13);
right to protection of families and children (Human Rights Charter s 17);
right to take part in public life, to vote and to access public office (Human Rights Charter s 18);
cultural rights (Human Rights Charter s 19);
property rights (Human Rights Charter s 20);
right to liberty and security of person (Human Rights Charter s 21);
right to humane treatment when deprived of liberty (Human Rights Charter s 22).
Procedural rights:
rights of children in the criminal process (Human Rights Charter s 23);
right to a fair hearing (Human Rights Charter s 24);
rights in criminal proceedings (Human Rights Charter s 25);
right not to be tried or punished more than once (Human Rights Charter s 26);
rights relating to retrospective criminal laws (Human Rights Charter s 27).
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Under the Human Rights Charter (s 7), a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society. A decision about whether a human right may be limited needs to take into account all relevant factors, including:
the nature of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relationship between the limitation and its purpose; and
any less restrictive means reasonably available to achieve the purpose sought by the limitation.
Therefore, the human rights set out in the Human Rights Charter are not absolute; they can be limited or balanced with competing rights and public interests. However, any limit on rights must have a clear legal basis and must be reasonable and proportionate in the circumstances.
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The Human Rights Charter imposes an obligation on ‘public authorities’ (defined in Human Rights Charter s 4) to act in a way that is compatible with human rights and to give proper consideration to relevant human rights in their decision-making (Human Rights Charter s 38). This means that public authorities (including private bodies performing public functions on behalf of government) must consider human rights when developing policies and executing their functions. 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.
The obligation does not apply to acts or decisions of a private nature. Nor does it require a public authority to act in a way, or make a decision, that would impede or prevent a religious body from acting in conformity with its religious doctrines, beliefs or principles. The obligation also does not apply if, as a result of a statutory provision or otherwise under law, the public authority could not reasonably have acted any differently or made a different decision.
If a public authority acts incompatibly with human rights, or does not consider human rights when making a decision, people can:
complain to the Victorian Ombudsman, who can investigate certain public authorities (see ‘Complaints about non-compliance’, below); or
subject to the pre-condition in Human Rights Charter section 39(1), bring legal proceedings against the public authority (see ‘Courts, tribunals and the Human Rights Charter’, below).
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Under the Ombudsman Act 1973 (Vic) (s 13), the Victorian Ombudsman has the power to make enquiries and conduct investigations of complaints against public authorities that relate to administrative actions by government agencies that have affected a person’s human rights.
The Victorian Ombudsman does not generally handle complaints about police conduct in relation to human rights. Complaints about possible police misconduct can be made to the Independent Broadbased Anti-corruption Commission on 1300 735 135 or go to www.ibac.vic.gov.au.
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A member of parliament seeking to introduce a Bill into parliament must provide an accompanying statement of compatibility. This statement must outline whether, in the member’s opinion, the Bill is compatible with human rights and how it is compatible, and if any part of the Bill is not compatible with human rights, the nature and extent of the incompatibility (Human Rights Charter s 28). Statements of compatibility are not binding on any court or tribunal.
A parliamentary committee, the Scrutiny of Acts and Regulations Committee (SARC), considers any Bill introduced into parliament and reports to parliament about whether the Bill is incompatible with human rights (Human Rights Charter s 30). Organisations and members of the public can make submissions about a particular Bill to SARC. SARC publishes its comments in an Alert Digest tabled in parliament each sitting week.
Failure to comply with the requirements in section 28 of the Human Rights Charter does not affect the validity, operation or enforcement of an Act (Human Rights Charter s 29). Therefore, the Human Rights Charter preserves parliamentary sovereignty. Although statements of compatibility must accompany all Bills, the Victorian Parliament retains the discretion to pass laws that are not compatible with the Human Rights Charter and parliament cannot be forced to adopt a particular position on a human rights issue.
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Courts and tribunals are required to interpret all statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistently with their purpose (Human Rights Charter s 32). International law and relevant judgments of domestic, foreign and international courts and tribunals may be considered in interpreting a statutory provision.
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The Supreme Court may make a declaration of inconsistent interpretation when the court considers that it is not possible to interpret a legislative provision consistently with a human right (s 36). The Supreme Court must provide a copy of a declaration of inconsistent interpretation to the Attorney-General. The VEOHRC and the Attorney-General must be notified when the Supreme Court is considering making a declaration and may make submissions in respect of the proposed declaration.
The Attorney-General is required to give a copy of a declaration to the minister responsible for administering the statutory provision in respect of which the declaration was made. The minister must prepare a written response, to be laid before each House of Parliament and published in the Government Gazette (Human Rights Charter s 37).
A declaration of inconsistent interpretation does not affect the validity, operation or enforcement of statutory provisions in respect of which declarations are made or give rise to any legal right or civil cause of action (Human Rights Charter s 36).
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In exceptional circumstances, parliament may expressly declare that a law has effect despite being incompatible with a human right: this is called an ‘override declaration’ (Human Rights Charter s 31).
Parliament must explain the exceptional circumstances justifying an override declaration. Examples of circumstances that could trigger override declarations include threats to national security, or a state of emergency threatening the safety and welfare of Victorians. Override declarations acknowledge that a Bill or Act contains provisions that limit human rights, but stipulate that it is the intention of parliament that this should be permitted.
An override declaration signals to courts, public authorities and the community that a law does not have to be interpreted compatibly with the Human Rights Charter and that public authorities do not need to act compatibly with human rights when implementing it. Override declarations may only operate for a maximum period of five years. This means that a decision to re-enact an override declaration is subject to review and to public scrutiny. There is, however, no limit on the number of times parliament can re-enact an override declaration. This default expiry may be removed by legislation.
At the time of writing, there have been five override declarations. The first related to the Legal Profession Uniform Law Application Bill 2013, the second related to the Corrections Amendment (Parole) Bill 2014, and the third related to the Corrections Amendment (Parole) Bill 2018. The fourth and fifth are the Corrections Amendment (Parole Reform) Act 2023 (Vic) and the State Civil Liability (Police Informants) Bill 2024.
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There is no ability to complain about an alleged breach of the Human Rights Charter directly to the courts as an independent cause of action in its own right. However, if a person has a right to seek a relief or remedy on the basis that a public authority’s act or decision was unlawful (on some non-Human Rights Charter ground), they may also seek that relief or remedy on a ground of unlawfulness arising because of the Human Rights Charter (s 39). This means that courts and tribunals can consider human rights obligations where a person has existing legal proceedings against a public authority under a separate claim (e.g. judicial review of an administrative decision, or a claim of discrimination in VCAT).
The relief or remedy available for a breach of the Human Rights Charter will depend on the relief or remedy available for the non-Human Rights Charter ground. However, courts and tribunals cannot award compensation for a breach of the Human Rights Charter.
For example, if a person brings a discrimination claim against a public authority alleging a breach of the EO Act, they may also claim that the same conduct is an unreasonable limitation on their human rights under the Human Rights Charter. If VCAT upheld these claims, it might award compensation for breach of the EO Act and/or make a declaration that there has been a breach of the Human Rights Charter, because those are remedies available under section 125 of the EO Act and section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
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The VEOHRC has a right to intervene in any proceeding before a court or tribunal in which a question arises in relation to the application of the Human Rights Charter or its implications for the interpretation of another statutory provision (Human Rights Charter s 40). The Attorney-General has the same right of intervention (Human Rights Charter s 34).
Any person raising a human rights issue under the Human Rights Charter in a County Court or Supreme Court proceeding must notify the VEOHRC and the Attorney-General of the question of law being raised (Human Rights Charter s 35).
The VEOHRC and the Attorney-General have each published intervention guidelines that provide guidance on how they consider and process Human Rights Charter notifications (available on the VEOHRC’s website at www.humanrights.vic.gov.au). The VEOHRC’s legal submissions under the Human Rights Charter can be viewed on the VEOHRC’s website.
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The VEOHRC has a function under section 41(a) of the Human Rights Charter to present the AttorneyGeneral with an annual report, available on the VEOHRC’s website.
Charter of Human Rights and Responsibilities Act
Chapter: 11.1: Discrimination and human rights
Contributor: Kristina Hoel, Legal and Policy Officer, Victorian Equal Opportunity and Human Rights Commission; Melissa De Abreu, Senior Lawyer, Australian Human Rights Commission
Current as of: 1 September 2024
Law Handbook Page: 906
Next Section: Commonwealth antidiscrimination law
