The Victorian Parliament enacted human rights legislation in Victoria in the form of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter"). The Charter received Royal Assent on 25 July 2006. Victoria is the first Australian state to establish a charter explicitly protecting human rights. The Australian Capital Territory has similar human rights legislation.
The commencement of the Charter occurred in two stages. It came into operation on 1 January 2007, with the exception of provisions governing the interpretation of laws and obligations of public authorities. These provisions commenced on 1 January 2008. Staggering the commencement of the Charter allowed public authorities to review laws, policies and procedures to ensure that they were prepared for their obligations under the Charter.
The Charter has established a comprehensive framework for the protection and promotion of human rights in Victoria. It influences the legal environment within which all laws, including the EO Act and RRTA, are interpreted and applied.
The Charter protects a variety of democratic rights, contained in the International Covenant on Civil and Political Rights ("ICCPR").
The Charter includes:
- the right to life (s.9);
- freedom from torture, cruel, inhuman and degrading treatment (s.10);
- the right not to be subject to medical or scientific experimentation or treatment without full, free and informed consent (s.10);
- the right to be free from slavery or servitude (s.11);
- rights to equality before the law and non-discrimination in the enjoyment of other civil and political rights (s.8);
- protection and recognition of family, children (s.17) and minority cultures (s.19);
- freedom of movement (s.12), assembly and expression (s.16);
- freedom of thought, conscience, religion and belief (s.14);
- the right to privacy (s.13);
- the right to take part in public life, to vote and to be elected (s.18);
- the right not to be deprived of property other than in accordance with the law (s.20);
- a prohibition on arbitrary arrest or detention (s.21); and
- protections when deprived of liberty (s.22) and otherwise involved in the legal system, including the right to be informed of the reason for arrest or detention, a right to apply to a court for a declaration or order regarding the lawfulness of detention, the right to humane treatment, the right to a fair hearing (s.24) and the right of a person charged with a criminal offence to be presumed innocent until proved guilty (s.25).
In the 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 whether a human right should be limited will need 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.
It is, therefore, Parliament's intention that the enshrined rights will not be absolute, but be balanced against competing public interests and the need to limit human rights in some circumstances. Laws that are necessary to protect security, public order or public safety which also limit human rights may be justified under the Charter.
A public authority duty of compliance is contained in the Charter (s.38). The Charter imposes an obligation on "public authorities" (defined in 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. Public authorities (which can include private bodies performing public functions on behalf of government under contracts) are now required to approach the development of policies and execution of functions in a manner that is compatible with the human rights enshrined in the Charter.
The Victorian Ombudsman has been given additional powers to investigate Charter complaints against those public authorities that fall within the Ombudsman's jurisdiction (this includes most government agencies). More information is available from the Victorian Ombudsman's website at www.ombudsman.vic.gov.au.
Ministers and government departments need to ensure that Bills and statutes comply with the Charter. Since 1 January 2007, a minister seeking to introduce a Bill into Parliament must provide an accompanying statement of compatibility, which states whether, in the minister's opinion, the Bill is compatible with human rights and if any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility (s.28).
A parliamentary committee, the Scrutiny of Acts and Regulations Committee, must consider any Bill introduced into parliament and reports to parliament about whether the Bill is incompatible with human rights (s.30). The Committee publicises its comments in an Alert Digest.
Failure to comply with the requirements in the Charter in respect of statements of compatibility will not affect the validity, operation or enforcement of an Act that is passed (s.29). The Charter therefore preserves parliamentary sovereignty. Although statements of compatibility must accompany all laws, government retains discretion to pass laws that are not compatible with the Charter.
Courts and tribunals are required to interpret all statutory provisions in accordance with human rights, so far as it is possible to do so consistently with their purpose (s.32). A rights-compatible interpretation is required even where there is no ambiguity in a provision's wording.
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 Charter or its implications for the interpretation of another statutory provision (s.40). The Attorney-General has the same right of intervention (s.34).
The Supreme Court is empowered to make a declaration of inconsistent interpretation (s.36). Declarations can be made when it is not possible to interpret a legislative provision consistently with a human right. 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 given notice of the Supreme Court's consideration of making a declaration and may make submissions on the exercise of the court's power to make a 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 (s.37).
A declaration of inconsistent interpretation will 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.
In exceptional circumstances, Parliament may expressly declare in an Act that the Act or a provision has effect despite being incompatible with a human right: this is an "override declaration" (s.31).
Parliament must explain the exceptional circumstances justifying an override declaration. Examples of circumstances potentially triggering override declarations could include threats to national security or a state of emergency threatening the safety and welfare of the people of Victoria. 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. It is anticipated that this will only occur in rare cases.
Where there is an override declaration in place, the Supreme Court is unable to make a declaration of inconsistent interpretation, and conduct of public authorities authorised by the override provision cannot be regarded as being in breach of the Charter. Override declarations may only operate for a maximum period of five years. There is, however, no limit on the number of times Parliament can re-enact an override declaration.
Courts and tribunals can consider human rights obligations in cases brought before them, for example, judicial review of an administrative decision, or cases where a person is defending a charge. If a person has a right to seek any relief or remedy that exists outside the Charter in respect of an act or decision of a public authority, they may seek it on a ground of unlawfulness arising because of the Charter. There is, however, no independent right to take legal action for a breach of the Charter.
A person is not entitled to an award of damages due to a breach of the Charter. This does not affect any right that a person has to seek any relief or remedy that exists outside the Charter (s.39).
The Charter stipulates that the Attorney-General must conduct a review of the Charter after the first four years of its operation and report to Parliament by 1 October 2011 (s.44). The Charter requires that the review must consider:
- whether additional human rights should be included in the Charter (such as rights under the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and the right to self-determination);
- whether the Charter should require regular auditing of public authorities to assess compliance with human rights;
- creation of an independent cause of action for breach of the Charter; and
- whether remedies should be able to be awarded for breach of the Charter by a public authority.
In May 2011, the Attorney-General caused the four year review to be conducted and overseen by the Scrutiny of Acts and Regulations Committee, a multi-party committee within the Victorian Parliament. SARC is expected to report its findings of the review to Parliament before 1 October 2011.
The Charter also requires that another review be carried out on the Charter’s 5th to 8th years of operation and that a report must be given to Parliament by 1 October 2015 (s. 45).
On 1 January 2007, the Equal Opportunity Commission had a name change and became the Victorian Equal Opportunity and Human Rights Commission. The VEOHRC has a significantly broader role under the Charter, acting as an identifiable and independent monitor of the Charter and of adherence to human rights principles.
The Commission's Charter functions include:
- presenting the Attorney-General with an annual report examining the Charter's operation and interaction with other laws, all declarations of inconsistent interpretation and all override declarations made during the year;
- when requested by the Attorney-General, reviewing the effect of Victorian law and common law on human rights, and submitting a report;
- reviewing a public authority's programs and practices to determine its compatibility with human rights, when requested by a public authority;
- providing education about human rights and the Charter;
- intervening in proceedings before any court or tribunal in which a question of law arises that relates to the application of the Charter or interpretation of a statutory provision in accordance with the Charter; and
- assisting the Attorney-General in a review of the Charter after the first four years of its operation. The four year review must consider:
- the addition of human rights contained within International Covenants beyond the ICCPR, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women;
- recognising the right to self-determination; and
- making mandatory the regular auditing of public authorities to assess compliance with human rights, providing for individual remedies in cases of breaches of human rights.
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THE CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES :: Last updated: Thu Jul 1st 2010