The Victorian Charter

Overview
Key aspects of the Charter
How the Charter works in practice
Amendment and review of the Charter
Other useful links

Overview

The Charter of Human Rights and Responsibilities 2006 is an Act of the Victorian Parliament. It was the second Charter of Human Rights enacted in Australia, and the first Charter enacted by an Australian State. The Victorian Charter is based on a ‘dialogical’ or ‘weak-form’ model of human rights protection.

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.

Based on the views it heard during this consultation, the Committee recommended that Victoria should enact a new Charter of Human Rights and Responsibilities. For further information, see the Consultation Committee’s final report.

The  Charter of Human Rights and Responsibilities Act.was received assent on 25 July 2006. The Act came into force on 1 January 2007. However, 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 Explanatory Memorandum and the Second Reading Speech - R Hulls (4 May 2006).

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.The Charter also expressly directs attention to international human rights law in the interpretation of its provisions: s 32.

The specific rights protected are:

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.

Courts and tribunals must interpret legislation consistently with human rights 
So far as is possible consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights: s 32.

This rule of construction accords with traditional common law principles, though there is debate as to whether it expands the scope of courts to engage in certain forms of ‘reading down’. (For further information, see for example, Julie Debeljak, ‘Who is sovereign now? The Momcilovic Court hands back power over human rights that Parliament intended it to have’ (2011) 22 Public Law Review 15, available here.)

However, the High Court has recently endorsed a narrow view of s. 32 as simply codifying the principle of legality, or ordinary principles of statutory interpretation: see Momcilovic.

Reasonable limitations can be placed on a human right 
Reasonable 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’, including several factors listed in the Charter: s 7.

There is, however, an important debate as to the stage at which such a provision should apply (that is,  should it apply before or after the interpretation requirement under s 32 is applied?). There is also ongoing uncertainty on this question, given the way in which the members of the High Court split in Momcilovic.

In addition, the Charter does not apply to abortion and child-destruction laws: s 48.

The Supreme Court cannot ‘strike down’ a law but may issue ‘declarations of inconsistent interpretation’
If the Supreme Court finds that a statutory provision is incompatible with human rights, it cannot ‘strike down’ or invalidate the provision in question. The Supreme Court may only make a declaration of inconsistent interpretation, and then refer the matter to the responsible Minister. The Minister must table a written response to the declaration: ss 36, 37. It will then be up to Parliament to decide what action (if any) to take.

Parliament also clearly retains power to override the human rights set out in the Charter through an express declaration in a new Act: s 31.However, the High Court and other courts exercising federal jurisdiction may not issue a declaration of inconsistent interpretation or hear appeals from a decision to issue such a declaration. This would be contrary to the limits on such courts under Chapter III of the Australian Constitution: see Momcilovic.

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 whether the Bill is compatible with human rights and the nature and extent of any incompatibility: s 28. The Scrutiny of Acts and Regulations Committee must report to Parliament as to whether a Bill is incompatible with human rights: s 30.

One important issue, which was raised but not settled by the decision of the High Court in Momcilovic, is whether these statements must be made after, or before, s. 7(2) of the Charter (concerning reasonable limitations on rights)  is considered.

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 ‘public authority’ 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’: ss. 4, 6(2)(c), 38(1).

The Victorian Court of Appeal has held, however, that challenges to administrative action based on ss. 6(2)(c) and 38(1) of the Charter can only be heard by the Supreme Court of Victoria (or possibly, lower courts). Administrative tribunals such as the Victorian Civil and Administrative Tribunal (VCAT) do not have jurisdiction to hear Charter challenges based on s. 6(c): see Director of Housing v Sudi

How the Charter works in practice

In the Courts: The Human Rights Law Resource Centre maintains a database of domestic, comparative and international human rights cases which are relevant to the Victorian Charter: HRLRC Caselaw Database

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’s Register of Compatibility Statements.

Amendment and review of the Charter

The report of the Scrutiny of Acts and Regulations Committee (SARC) into the first four years of the operation of the Charter was tabled in the Parliament of Victoria on 14 September 2011. The SARC Report is available here. Information on SARC’s review of the Charter is available here.

The majority of the SARC favoured retaining the provisions of the Charter regarding the scrutiny of new law, with modifications as recommended in the SARC Report. The majority also favoured ‘removing the obligations of public authorities and returning the courts and tribunals to their traditional role’ (SARC report, p x). The latter course of action would include repealing the provisions concerning the interpretation of laws (s. 32) and the power to issue declarations of inconsistent interpretation (s. 36).

The minority of the SARC favoured retaining ‘the current Charter framework with the significant reforms and simplification recommended in chapters 3, 4 and 5’ of the SARC Report (p x). These recommendations include:  

  • that s. 32(1) be redrafted ‘in a manner that both clarifies that it is limited to traditional approaches to interpretation and makes its meaning accessible to local users, without undue recourse to overseas judgments’ (recommendation 24)
  • that consideration be given to amending s. 36 to give an independent non-judicial body, such as the Victorian Equal Opportunity and Human Rights Commission, ‘the functions of identifying statutory provisions that the Supreme Court has interpreted in a way that limits a human right and forwarding those provisions to a parliamentary committee (such as SARC) for reporting to the Parliament, as well as to the Minister responsible for the statutory provision’ (recommendation 31).

In a media release, the Victorian Premier stated that ‘[t]he views expressed in the SARC report are those of the cross-party committee members and not necessarily those of the Coalition Government’. Premier Baillieu further acknowledged that ‘[t]he SARC report, and many of the submissions made to SARC, indicate that the Charter of Human Rights has delivered benefits to Victoria, and should not be repealed’. The Government is currently preparing its response to the SARC report.

Other useful links

Law Institute of Victoria, ‘Charter of Human Rights’.

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.