The Charter of Human Rights and Responsibilities Act 2006 (the Charter) is a Victorian law that sets out the basic rights, freedoms and responsibilities of all people in Victoria. It is about the relationship between government and the people it serves.
The Charter requires public authorities, such as Victorian state and local government departments and agencies, and people delivering services on behalf of government, to act consistently with the human rights in the Charter.
Twenty fundamental human rights are protected in the Charter because the Victorian Parliament recognises that, as human beings, we have basic rights, including the right to be treated equally, to be safe from violence and abuse, to be part of a family and to have our privacy respected.
In certain circumstances, some rights may be limited. However, this must be necessary and reasonable and there must be clear reasons for the decision.
How does the Charter work?
The Charter requires the Victorian Government, public servants, local councils, Victoria Police and other public authorities) to act compatibly with human rights, and to consider human rights when developing policies, making laws, delivering services and making decisions. So no matter which state or local government agency the community is dealing with, the same human rights apply.
Each new law must be checked against the Charter and requires a Statement of Compatibility to tell Parliament how it relates to human rights. View the Commisson's register of statements of compatibility.
If a law limits the rights set out in the Charter, the Statement of Compatibility should explain how and why. In exceptional circumstances, the Parliament can still pass a law that does not uphold human rights by issuing an override declaration.
This process aims to anticipate potential problems and prevent unfair treatment from occurring in the first place.
In cases that come before it, the Supreme Court can issue a declaration of inconsistent interpretation, which requires the minister who proposed the law to revisit it. However, the Court does not have the power to strike down legislation. Parliament has the final say over the laws of Victoria.
What are the benefits of having the Charter?
The common language of human rights has helped Victorians to navigate the complex patchwork of laws and service standards across government.
The Charter sets our fundamental human rights clearly in one place and makes it a legal obligation for government to comply with them. This has improved transparency and accountability in government by giving all Victorians the tools to question and challenge laws, policies and decisions made by public authorities that have the potential to impact their human rights.
People are achieving real outcomes outside the courts because they are raising their human rights concerns directly with public authorities. This can happen through one-off discussions to rectify a particular case, or through more robust negotiations to rectify serious systemic issues.
What is a public authority?
A ‘public authority’ includes:
- entities established by legislation that have functions of a public nature
- entities that carry out functions of a public nature on behalf of a public authority.
In determining whether a person is carrying out functions of a public nature, it is relevant to consider whether:
- the function is conferred by legislation
- the function is connected to or generally identified with the functions of government
- the function is regulatory in nature
- the entity is publicly funded to perform the function
- the entity performing the function is a company all of the shares in which are held by or on behalf of the state.
Parliamentary committees, courts and tribunals are only ‘public authorities’ for the purposes of the Charter when they are acting in an administrative capacity, otherwise they are excluded from the obligations imposed on public authorities. Issuing warrants and listing cases are examples of the administrative role of a court or tribunal. The decisions made by a judge about the outcome of a hearing is a judicial function and not an administrative one.
Parliament is also excluded from the definition of ‘public authority’ under the Charter.
An entity can also be expressly declared to be, or not to be, a public authority by regulation. The Adult Corrections Board, the Youth Residential Board, and the Youth Parole Board have been declared not to be a public authority by regulations that expire on 27 December 2013.
How are breaches of human rights addressed?
The Charter does not create a new right to begin legal action for a breach of human rights. Instead, its goal is to get things right at the planning and policy stages.
However, the Charter does allow a person to raise a human rights argument along with existing remedies or legal proceedings.
Victorian complaint handling bodies – such as the Health Services Commissioner, the Victorian Equal Opportunity and Human Rights Commission, the Disability Services Commissioner and the Office of the Public Advocate – must also give consideration to human rights issues in the complaints they are responsible for resolving.
The Commission does not handle complaints related to the Charter.
The Victorian Ombudsman can receive and investigate complaints about whether administrative actions taken by the government, local councils and public authorities are in breach of, or have not properly considered, human rights.