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.

Introduction

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”) commenced on 1 January 2008. Victoria was the first Australian state to establish a charter explicitly protecting human rights. The Australian Capital Territory has similar human rights legislation (Human Rights Act 2004 (ACT)). The Charter Act provides a framework for the protection and promotion of human rights in Victoria that places obligations on parliament, the courts, and public authorities.

Charter Act rights

The Charter Act protects the democratic rights contained in the United Nations International Covenant on Civil and Political Rights (1966) (UNICCPR).

The 20 Charter Act 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 (s 11);

freedom of movement (s 12);

freedom of thought, conscience, religion and belief (s 14);

freedom of expression (s 15);

freedom of association and peaceful assembly (s 16).

Substantive rights:

rights to recognition and equality before the law (s 8);

right to life (s 9);

right to protection from torture and cruel, inhuman or degrading treatment (s 10);

right to privacy and reputation (s 13);

right to protection of families and children (s 17);

right to take part in public life, to vote and to be elected (s 18);

cultural rights (s 19);

property rights (s 20);

right to liberty and security of a person (s 21);

right to humane treatment when deprived of liberty (s 22).

Procedural rights:

rights of children in the criminal process (s 23);

right to a fair hearing (s 24);

rights in criminal proceedings (s 25);

right not to be tried or punished more than once (s 26);

rights relating to retrospective criminal laws (s 27).

Limitations on rights

Under the Charter Act (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;

any less restrictive means reasonably available to achieve the purpose sought by the limitation.

Therefore, the rights set out in the Charter Act are not absolute – they can sometimes 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.

Obligations of public authorities: a duty of compliance

A public authority’s duty of compliance is contained in the Charter Act (s 38). The Charter Act 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. This means that public authorities (including private bodies performing public functions on behalf of government under contract) 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 duty does not apply to acts or decisions made by a public authority 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 duty also does not apply if, as a result of a statutory provision or provision under a federal Act, the public authority could not reasonably have acted any differently, or made a different decision.

Complaints about non-compliance

Under the Ombudsman Act 1973 (Vic) (s 13), the Victorian Ombudsman has the power to conduct enquiries and 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 Broad-based Anti-corruption Commission on 1300 735 135 or go to www.ibac.vic.gov.au.

Statements of compatibility

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 (s 28). Statements of compatibility are not binding on any court or tribunal.

A parliamentary committee, the Scrutiny of Acts and Regulations Committee, considers 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 section 28 of the Charter Act does not affect the validity, operation or enforcement of an Act that is passed (s 29). The Charter Act therefore 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 Charter Act.

Rights-compatible interpretation of laws

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 (s 32). A rights-compatible interpretation is required even where there is no ambiguity in a provision’s wording.

International law and relevant judgments of domestic, foreign and international courts and tribunals may be considered in interpreting a statutory provision.

Declarations of inconsistent interpretation

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 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 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 (s 36).

As at 30 June 2018, there has only been one declaration of inconsistent interpretation, in R v Momcilovic (2010) 265 ALR 751 made by the Victorian Court of Appeal. However, on appeal, the High Court in Momcilovic v The Queen [2011] HCA 34 held that either the declaration was invalid or was valid but should not have been made, and the majority (5:2) set aside the declaration. While a majority (4:3) held that the declaration was valid, it is unclear how the Supreme Court will now approach section 36 following this decision.

Override declarations

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” (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.

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 Act. 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.

At the time of writing (30 June 2018), there have only been three 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 2016.

Courts, tribunals and the Charter Act

There is no ability to complain about an alleged breach of the Charter Act directly to the courts as an independent cause of action in its own right. However, if a person has a right to seek any relief or remedy that exists outside the Charter Act 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 Act (s 39). A person is not entitled to an award of damages due to a breach of the Charter Act. This does not affect any right that a person has to seek any relief or remedy or right to damages that exists outside the Charter Act for the conduct (s 39).

This means that courts and tribunals can consider human rights obligations in cases brought before them where a person has another legal action available to them arising from an unlawful act or decision of a public authority (e.g. judicial review of an administrative decision, cases where a person is defending a charge of a claim of discrimination in VCAT). The courts and tribunals cannot award compensation for any Charter Act breach they find and instead, any relief or remedy must arise from the other legal action they have brought.

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 in the Charter Act. 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 Charter Act, 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). See, for example, Slattery v Manningham City Council (Human Rights) [2014] VCAT 1442.

Right to intervene: the VEOHRC and the Attorney-General

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 Act or its implications for the interpretation of another statutory provision (s 40). The Attorney-General has the same right of intervention (s 34). Any person raising a human rights issue under the Charter Act in a County Court or Supreme Court proceeding must notify the VEOHRC and the Attorney-General of the question of law being raised (s 35).

The VEOHRC’s legal submissions under the Charter Act can be viewed at the VEOHRC’s website (www.humanrightscommission.vic.gov.au).

Review of the Charter Act

The Charter Act includes mechanisms for its review; sections 44 and 45 of the Charter Act require reviews to be undertaken.

In 2011, the Scrutiny of Acts and Regulation Committee of the Victorian Parliament produced a report on the Charter Act’s first four years of operation.

In 2015, Michael Brett Young completed an independent review of the Charter Act after eight years of its operation.

These reports are available on the Victorian Parliament’s website (www.parliament.vic.gov.au) and on https://engage.vic.gov.au/human-rights-charter-review, respectively.