The Victorian Charter of Human Rights and Responsibilities Act: Australia's First State Charter of Human Rights

Overview

The Charter of Human Rights and Responsibilities 2006 is an Act of the Victorian Parliament that sets out basic human rights and freedoms in one document. Its purpose is to protect and promote human rights. It does this by:

  • setting out the human rights that Parliament wishes to protect and promote;
  • ensuring that all other Victorian legislation is interpreted so far as is possible in a way that is compatible with human rights;
  • obliging all public authorities to act in a way that is compatible with human rights;
  • requiring MPs to prepare a separate statement explaining how each new Bill they introduce into Parliament is compatible with human rights; and
  • giving the Victorian Supreme Court jurisdiction to declare that a statutory provision is inconsistent with a human right.

The Victorian Charter affirms and protects human rights, but the Victorian Parliament is still able to override the Charter. Governments must act for the good of the whole community and this may sometimes require limiting or overriding individual human rights. That is why the Charter expressly recognises that human rights are subject to reasonable limitations. Additionally, the Victorian Parliament can pass laws overriding the application of the Charter in exceptional circumstances .

Further information about the Charter can be found at the Victorian Department of Justice , and you can read the full text of the Act here and here.

History of the Victorian Charter

The Victorian Charter was the product of an extensive public consultation process. The state Attorney-General, Rob Hulls, appointed a four person Human Rights Consultation Committee to engage in a wide-ranging public discussion about how Victoria could improve its protection of human rights. This was conducted over six months in 2005. The Committee, consisting of Professor George Williams (Chair), Rhonda Galbally AO, Andrew Gaze and Professor Haddon Storey QC, held 55 community meetings all around the state, and 75 more meetings with government and peak organisations. It received 2524 written submissions from individuals and community groups. To view some of these submissions, contact the Human Rights Unit of the Victorian Department of Justice.

The inclusiveness of the Victorian consultation process has been praised by a 2008 report of the UK Parliament’s Joint Committee on Human Rights, which you can find here .

The Consultation Committee found that most Victorians did not want radical change, but an emphatic majority (84%) was in favour of reforming the law to provide better protection for human rights. They wanted to change the law in a way that not only provided better legal protections, but that also helped build a society where understanding and respect for human rights was imbued throughout government, the courts, Parliament and the community. That is why an important part of the Charter is the obligation on Members of Parliament to explain how a new Bill is compatible with human rights. This ensures that human rights are always considered during the political process. For more information about the process and findings of the Victorian consultation, you can read the Consultation Committee’s Community Discussion Paper , Summary and Final Report .

The resulting Bill was introduced into Parliament by Attorney-General Rob Hulls in May 2006. On 25 July 2006, the Victorian Parliament passed the Charter of Human Rights and Responsibilities Act, and Victoria became the first Australian State to adopt a Charter of Human Rights. The Act came into force on 1 January 2007. Divisions 3 and 4 of Part 3 of the Act (concerning the obligations of public authorities and powers of the court) commenced on 1 January 2008.

For more information about the Parliamentary process, see the Victorian Department of Justice , the Explanatory Memorandum and the Second Reading Speech - R Hulls (4 May 2006) .

 The rights recognised in the Victorian Charter

 

Recognition and equality before the law

 

Right to life

 

Protection from torture and cruel, inhuman and degrading treatment

 

Freedom from forced work

 

Freedom of movement

 

Privacy and reputation

 

Freedom of thought, conscience, religion and belief

 

Freedom of expression

 

Peaceful assembly and freedom of association

 

Protection of families and children

 

Taking part in public life

 

Cultural rights

 

Property rights

 

Right to liberty and security of person

 

Humane treatment when deprived of liberty

 

Children in the criminal process

 

Fair hearing

 

Rights in criminal proceedings

 

Right not to be tried or punished more than once

 

Protection from retrospective criminal laws

 

Key aspects of the Charter

It is in keeping with Australia’s international obligations. 
The majority of human rights enshrined in Part 2 of the Charter are based on the International Covenant on Civil and Political Rights , a treaty which Australia ratified in 1980.

It does not limit or restrict other rights or freedoms. 
The Charter expressly sets out core human rights, but this does not mean that it excludes or limits any rights or freedoms not included in the Charter: s 5 . This means that other rights existing at common law or arising from other Acts of Parliament are not adversely affected by the Charter.

Reasonable limitations can be placed on a human right 
Limitations may be placed on a human right where this limitation ‘can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors’: s 7.

 Parliament can override the Charter in exceptional circumstances 
In exceptional circumstances, Parliament can override the human rights set out in the Charter through an express declaration in a new Act: s 31 .

The new Charter will have no effect whatsoever on abortion laws
Because the Charter was intended to protect generally-accepted core rights, and not to provide a vehicle to alter the existing Victorian laws on abortion, the Charter does not apply to abortion and child-destruction laws: s 48 .

New Bills are scrutinised to determine whether they are compatible with human rights
All Bills introduced into Parliament must be tabled with a statement of compatibility, which outlines the extent of its consistency with human rights: s 28 . The Scrutiny of Acts and Regulations Committee must report to Parliament on whether a Bill is incompatible with human rights: s 30 .

Courts and tribunals must interpret legislation consistently with human rights 
So far as is possible, courts and tribunals are required to interpret legislation consistently with human rights. Courts and tribunals may use international jurisprudence to assist in interpretation: s 32 .

Public authorities must respect human rights 
Public authorities must act in a manner consistent with human rights and give relevant human rights due consideration during decision making. The term includes private sector bodies that are established by statute and have functions of a public or governmental nature. It also includes private sector bodies that perform functions of a public nature, when ‘exercising those functions on behalf of the State or a public authority’.

 The Charter does not open the floodgates to litigation 
The Charter does not provide anyone and everyone in Victoria with the right to sue a public authority for a human rights breach. Only persons who have an existing legal right other than under the Charter may use a Charter right in an action against a public authority.

 The Supreme Court cannot ‘strike down’ a law 
If the Supreme Court finds that a statutory provision is incompatible with human rights , it cannot ‘strike down’ or invalidate the provision in question, nor can the Court rule that any government acts made under the provision are unlawful. The Supreme Court may only make a declaration of inconsistent interpretation, and then refer the matter to the responsible Minister . It will then be up to Parliament to decide what action (if any) to take.

How the Charter works in practice

In the Courts: The Human Rights Law Resource Centre provides a compilation of all cases in which the Victorian Charter is referred to: Database of Victorian Caselaw on the Charter .

In Parliament: See a compilation of all the statements of legislative compatibility with the Charter that the Victorian Parliament has thus far made. Victorian Equal Opportunity and Human Rights Commission, ‘Register of Compatibility Statements’ for 2007and 2008 .

International cases: See a compilation of international cases, chiefly from the European Court of Human Rights, which may be used in interpreting the Victorian Charter: ‘Database of Select International and Comparative Case law Relevant to the Charter’.

Analysis of the Charter: 
 
Media

Philip Lynch, ‘Victorian Charter on the Right Path – an Assessment of the First Eighteen Months’ , HRLRC Bulletin (July 2008).

Amy Barry-Macaulay, ‘Using the Victorian Charter to Redress Homelessness ’, 2008.

Rob Hulls, ‘ Right to a fair go enshrined in law ’, The Australian (10 December 2007).

John Tobin , ‘ The Victorian Charter of Human Rights and Responsibilities: taking rights into the nooks and crannies of the lives of ordinary Victorians’ (December 2007). 

Spencer Zjfcak, ‘ Not bad but not yet good: Victoria’s new Charter of Rights and Responsibilities ’, Centre for Policy Development.

Kurt Esser, ‘ Taking the Charter to Court: The Application of Charter of Human Rights and Responsibility’ , The Justice Project.

Peter O’Donahoo and Emily Howie, ‘Victorian Charter of Human Rights’ , AAR Publications (October 2006).

George Williams, ' Victoria's Charter of Human Rights and Responsibilities ', New Matilda (10 August 2006).

George Williams, ' The Charter You Wanted ', Herald Sun (26 July 2006).

Office of the Attorney General, Victoria, ‘ Victoria on Track for Human Rights Protection ’ (Press Release, 2 May 2006)

Department of Justice, Victoria,  Human Rights in Victoria: Statement of Intent, May 2005 ’ (2005) 

Office of the Attorney General, ‘ Victoria Leads the way on Human Rights ’ (Press Release, 20 December 2005)

Academic articles

Priyanga Hettiarachi, ‘Some Things Borrowed, Some Things New: An Overview of Judicial Review of Legislation under the Charter of Human Rights and Responsibilities’ (2007) 7(1) Oxford University Commonwealth Law Journal 61

Simon Evans, ' The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their Implications for Victoria '. Paper presented to the Australian Bills of Rights: The ACT and Beyond Conference, Canberra, 21 June 2006.

Carolyn Evans, ' Administrative Law and Australian Bills of Rights '. Paper presented to the Australian Institute of Administrative Law Annual Forum, 14 June 2006. Simon Evans, ' What Difference will the Charter of Human Rights and Responsibilities mak to the Victorian Public Service? '. Paper presented to Clayton Utz, Melbourne, 13 June 2006.

George Williams, ‘ The Victorian Charter of Human Rights and Responsibilities: Origin and Scope ’. Melbourne University Law Review, Vol 30, 2006, 880-905.

Useful links

Law Institute of Victoria, ‘ Charter of Human Rights’ – background information about the Charter, including links to the Department of Justice.

Victorian Equal Opportunity and Human Rights Commission, ‘ The Victorian Charter of Human Rights and Responsibilities ’

Charterblog : the accessible and informative blog of Dr Jeremy Gans, analysing day-to-day incidents involving Victoria’s Charter of Human Rights.