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Improving the operation of the Charter

Our vision: For the fundamental human rights of all Victorians to be protected by a robust, effective and well-utilised Charter that reflects domestic and international human rights developments

The problem

Some key human rights that are important to Victorians are not currently protected by the Charter

While the Charter protects 20 essential rights, core economic and social rights – such as the rights to health, housing and education that are fundamental of people’s everyday lives – are not yet included.

Although many of these rights are already recognised in Victorian law, they are not always clear or enforceable. For example, the objectives of the Health Services Act 1988  include ensuring that ‘an adequate range of essential health services is available to all persons resident in Victoria irrespective of where they live or whatever their social or economic status’. However, as a statutory objective, this is not enforceable.

Expressly recognising economic and social rights in the Charter would strengthen and clarify these protections. It would fill the gaps in existing Victorian legislation and put human rights in one place, making them easier for the community to identify and use.

The Charter does not sufficiently recognise the rights of First Nations Peoples

Recognition in the law is important. The inclusion of Aboriginal cultural rights in the Charter was a significant step in 2006 when the Charter was enacted – but it is just one step in overcoming the legacy of colonisation and dispossession faced by First Nations Peoples.

In Victoria, the First Peoples’ Assembly of Victoria is an independent and democratically-elected body to represent Traditional Owners and First Nations Peoples in Victoria. The Assembly working with the Victorian government to create the processes and rules for treaty negotiations in the state.

Including self-determination in the Charter would further enable Victoria’s First Nations communities to meet their social, cultural and economic needs and participate in decisions that affect them.

Victorians don’t have a simple and effective avenue to make human rights complaints

Currently there is no single body that can receive complaints about allegations of a human rights breach against all public authorities as defined in the Charter. Instead, Victorians must navigate a ‘patchwork’ of options for dealing with alleged human rights breaches.

Victorians can only pursue a legal remedy for a breach of the Charter if they have another claim

The Charter does not allow a person to bring an independent action against a public authority for a breach. Instead, a person can only raise the Charter by joining or ‘piggy backing’ a claim to separate proceedings against a public authority.

Significant resources including legal costs, court time and scarce pro bono resources are spent on resolving preliminary jurisdictional questions, rather than focusing on the real issue in dispute -– whether a public authority has breached a person’s human rights.

Victorians are not entitled to compensation for breaches of the Charter

This is despite the fact that human rights breaches can have significant impacts and Victorians can seek damages for other common causes of action, such as discrimination law, tenancy and employment jurisdictions.

The lack of clear, accessible and enforceable remedies under the Charter creates little incentive for public authorities to comply as there are no obvious consequences for a breach.

The solution

The Charter is now at the heart of the Victorian legal landscape and has provided Victorians with an important tool to question and challenge government policy, law and decisions. However, Victoria, once the trailblazer in recognising and promoting human rights, is now falling behind – Charter reform is long overdue.

In 2015, the Attorney-General appointed Michael Brett Young, former CEO of the Law Institute of Victoria, to conduct an eight-year review of the Charter. The review contained 52 recommendations to make the Charter more accessible, effective and practical. Many of these recommendations are yet to be implemented.

There are several important reforms that would align the Charter with contemporary domestic and international human rights developments:

  • The Charter should recognise the ‘progressive realisation’ of the economic and social rights to health, housing and education. This approach recognises that fully achieving these rights will take time and will be dependent on the resources that government has available.
  • The Charter should include a standalone right to self-determination for First Nations Victorians, which will provide stronger legal recognition of the rights of First Nations Victorians that is consistent with international law.
  • The Charter should enable Victorians to attempt to resolve a human rights complaint through alternative dispute resolution. The Commission is well placed to fulfill this function, with the addition of additional resources. The model for resolving human rights complaints could be based on the Commission’s existing process for dispute resolution under the Equal Opportunity Act, ensuring a process that is provided as early as possible, appropriate to the nature of the complaint and fair and voluntary.
  • In addition to making a complaint to the Commission, Victorians should also be able to lodge a Charter complaint with VCAT and seek redress from government when a public authority breaches their human rights in the same way they can if it discriminates against them in the provision of services or unfairly evicts them from housing.
  • A person should be able to bring a judicial review action for a breach of a Charter right, without having to seek review on any other ground.
  • A person should be able to seek compensation for breach of a Charter right when a court or tribunal determines that administrative action does not adequately address the harm the person has experienced.

Work we are doing

In 2019, our submission to the Royal Commission into Victoria’s Mental Health System advocated for Charter reform including a right to health and a dispute resolution function.

We also produce annual reports on the operation of the Charter, which allows us to take stock of efforts to embed human rights in Victoria, monitor how decision makers use the Charter and advocate for reform.

2022 Report on the Operation of the Charter of Human Rights and Responsibilities – August 2023

Read more about the Charter

Submission for the Inquiry into Australia’s Human Rights Framework

The Inquiry into Australia’s Human Rights Framework, conducted by the the federal Parliamentary Joint Committee on Human Rights, examines the need for human rights legislation.

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Address
Level 3, 204 Lygon Street Carlton Victoria 3053

General enquiries
enquiries@veohrc.vic.gov.au

Reception
1300 891 848

Enquiry line
1300 292 153 or (03) 9032 3583

Interpreters
1300 152 494

NRS Voice Relay
1300 555 727 then use 1300 292 153

Media enquiries
0447 526 642

The Victorian Equal Opportunity and Human Rights Commission acknowledges that we work on the traditional lands of the Wurundjeri people of the Kulin Nation. We also work remotely and serve communities on the lands of other Traditional Custodians.

We pay our respects to their Elders past and present.