Charter of Human Rights and Responsibilities


The International Covenant on Civil and Political Rights was adopted by Victoria in the Charter of Human Rights and Responsibilities, which includes 20 human rights or freedoms. Some limitations apply. Public authorities must comply with the Charter as they perform their duties. Complaints are made to the Victorian Ombudsman.

Charter of Human Rights and Responsibilities

An important development in the interpretation of law in Victoria is the adoption by parliament of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”). This parliament-made law seeks to ensure that certain human rights are taken into account when developing, interpreting and applying Victorian law and policy. The Charter Act came into force on 1 January 2007, although the obligation of public authorities to consider and act consistently with human rights and the courts to interpret and apply legislation in accordance with the Charter Act became effective on 1 January 2008.

The rights in the Charter Act come mainly from an international human rights document, the United Nations International Covenant on Civil and Political Rights (1966). The rights included in the Charter Act are:

the right to life; freedom of movement;

freedom of expression and assembly;

the right to liberty; and

the right to a fair hearing and protection from retrospective laws.

The Charter Act does not allow courts to declare a law that is inconsistent with the Charter Act invalid, but requires courts and tribunals, as far as possible, to interpret and apply legislation consistently with these human rights. If this is not possible, the Supreme Court can issue a “declaration of inconsistent interpretation”. The government must then respond to this declaration within six months.

However, there is legal uncertainty about how to correctly make a declaration of inconsistent interpretation, given the varied views of High Court justices on this subject. In Momcilovic v The Queen [2011] HCA 34, three justices considered the power to make a declaration to be invalid. Nonetheless, in DPP v Kaba [2014] VSC 52, Justice Bell of the Supreme Court of Victoria referred to the increasing attention that human rights is receiving by parliament when enacting legislation:

The increase in the quantity of legislation has given rise to highly developed parliamentary processes. Given the contemporary importance of human rights when enacting legislation, it is perhaps not surprising that human rights are receiving more attention in these processes. Two deserve particular mention. First, parliaments have more sophisticated legislative scrutiny mechanisms than previously. So, drawing on the United Kingdom model, the Australian Parliament has established a Parliamentary Joint Committee on Human Rights. It functions include the examination of proposed legislation for compatibility with human rights, including the ICCPR. A second parallel development is that legislative counsel are expected to be, and are, more conscious of human rights in the drafting of legislation and in supporting these scrutiny processes. I would expect both of these trends to intensify in coming years.