Introduction to the Human Rights Charter
The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’) commenced on 1 January 2008. Victoria was the first Australian state to establish a charter that explicitly protects human rights.
The Australian Capital Territory has similar human rights legislation (Human Rights Act 2004 (ACT)), as does Queensland (Human Rights Act 2019 (Qld)).
The Human Rights Charter provides a framework for the protection and promotion of human rights in Victoria that places legal obligations on parliament, courts and tribunals, and public authorities including government departments, local councils and bodies that execute a public function.
The Human Rights Charter creates a ‘dialogue model’ of rights (i.e. a constructive and continuous conversation about human rights) for public authorities, parliament, courts and the Victorian community. The dialogue model is designed to ensure that human rights are considered in the development of laws and policies, in the delivery of public services, and in the government’s decision-making. The model encourages each part of our democratic system to play a role in protecting and promoting human rights.
Rights in the Human Rights Charter
The Human Rights Charter protects the human rights mostly contained in the United Nations International Covenant on Civil and Political Rights (1966).
The 20 rights in the Human Rights Charter 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.
- 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).
- 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).
- 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 Human Rights 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 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 human rights set out in the Human Rights Charter are not absolute; they can 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 with the Human Rights Charter
The Human Rights 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 (s 38). 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 obligation 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 obligation 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.
If a public authority acts incompatibly with human rights, or does not consider human rights when making a decision, people can:
- complain to the Victorian Ombudsman, who can investigate certain public authorities (see ‘Complaints about non-compliance’, below);
- bring legal proceedings against the public authority (see ‘Courts, tribunals and the Human Rights Charter’, below).
Complaints about non-compliance with the Human Rights Charter
Under the Ombudsman Act 1973 (Vic) (s 13), the Victorian Ombudsman has the power to make enquiries and conduct 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.
Statements of compatibility with the Human Rights Charter
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 Human Rights Charter). Statements of compatibility are not binding on any court or tribunal.
A parliamentary committee, the Scrutiny of Acts and Regulations Committee (SARC), considers any Bill introduced into parliament and reports to parliament about whether the Bill is incompatible with human rights (s 30 Human Rights Charter). Organisations and members of the public can make submissions about a particular Bill to SARC. SARC publicises its comments in an Alert Digest tabled in parliament each sitting week.
Failure to comply with the requirements in section 28 of the Human Rights Charter does not affect the validity, operation or enforcement of an Act (s 29 Human Rights Charter). Therefore, the Charter 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 Human Rights Charter and parliament cannot be forced to adopt a particular position on a human rights issue.
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 Human Rights Charter).
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 Human Rights Charter). 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 Human Rights Charter).
As at 1 July 2021, 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  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.
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 Human Rights Charter).
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.
An override declaration signals to courts, public authorities and the community that a law does not have to be interpreted compatibly with the Charter and that public authorities do not need to act compatibly with human rights when implementing it. Override declarations may only operate for a maximum period of five years. This means that a decision to re-enact an override declaration is subject to review and to public scrutiny. There is, however, no limit on the number of times parliament can re-enact an override declaration. This default expiry may be removed by legislation.
At the time of writing (1 July 2021), there have 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 2018.
Courts, tribunals and the Human Rights Charter
There is no ability to complain about an alleged breach of the Human Rights Charter directly to the courts as an independent cause of action in its own right.
However, if a person has a right to seek a relief or remedy that exists outside the Human Rights Charter in respect of a public authority’s act or decision, they may do so on a ground of unlawfulness arising because of the Human Rights Charter (s 39).
A person is not entitled to an award of damages due to a breach of the Human Rights Charter.
This does not affect any right that a person has to seek any relief or remedy or right to damages that exists outside the Human Rights Charter for the conduct (s 39).
This means that courts and tribunals can consider human rights obligations where a person has existing legal proceedings against a public authority under a separate claim (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 Human Rights Charter 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 Equal Opportunity Act, they may also claim that the same conduct is an unreasonable limitation on their human rights in the Charter. If VCAT upheld these claims, it might award compensation for breach of the Equal Opportunity Act and/or make a declaration that there has been a breach of the Charter, because those are remedies available under section 125 of the Equal Opportunity Act and section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). See, for example, Slattery v Manningham City Council (Human Rights)  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 Human Rights Charter or its implications for the interpretation of another statutory provision (s 40 Human Rights Charter). The Attorney-General has the same right of intervention (s 34 Human Rights Charter).
Any person raising a human rights issue under the Human Rights Charter 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 Human Rights Charter).
The VEOHRC and the Attorney-General have each published intervention guidelines that provide guidance on how they consider and process Human Rights Charter notifications (available on the VEOHRC’s website. The VEOHRC’s legal submissions under the Human Rights Charter can be viewed on the VEOHRC’s website.
Review of the Human Rights Charter
The Human Rights Charter includes a mechanism for its review. Under sections 44 and 45 of the Human Rights Charter, two reviews were required to be undertaken:
- In 2011, the Scrutiny of Acts and Regulation Committee of the Victorian Parliament produced a report on the Human Rights Charter’s first four years of operation.
- In 2015, Michael Brett Young completed an independent review of the Human Rights Charter after eight years of operation.
These reviews and their recommendations are available on the Victorian Parliament’s website and on https://engage.vic.gov.au/human-rights-charter-review.
The VEOHRC’s annual report on the Human Rights Charter’s operation
The VEOHRC has a function under section 41(a) of the Human Rights Charter to present the Attorney-General with an annual report that examines:
- the operation of the Human Rights Charter including its interaction with other statutory provisions and the common law;
- all declarations of inconsistent interpretation made during the relevant year; and
- all override declarations made during the year.
These Human Rights Charter reports are available on the VEOHRC’s website.