CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES BILL 2006 Explanatory Memoranda
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES BILL 2006
Charter of Human Rights and Responsibilities
Bill
As Sent Print
EXPLANATORY MEMORANDUM
General
The purpose of this Charter is to establish a framework for the protection and
promotion of human rights in Victoria.
The human rights protected by the Charter are civil and political rights.
They primarily derive from the International Covenant on Civil and Political
Rights 1966 and are set out in Part 2, which follows a number of general
provisions set out in Part 1.
Part 3 of the Charter outlines the scheme by which human rights are
protected by Parliament, courts and tribunals and public authorities.
There are three noteworthy elements of this framework.
First, the Charter facilitates the protection and promotion of human rights by
Parliament in the development of new legislation and increases transparency
in the consideration of human rights in parliamentary procedures. This is
achieved by requiring all Bills introduced into Parliament to be accompanied
by a statement of compatibility prepared by the relevant member of
Parliament. The Charter requires a statement to provide whether the Bill is
compatible with the rights protected by Part 2 of the Charter. The Scrutiny of
Acts and Regulations Committee will also have a role in the process by
examining whether a Bill is incompatible with the Charter.
Second, the Charter imposes obligations on public authorities to act in a way
that is compatible with the human rights protected by the Charter.
Third, the Charter requires courts and tribunals to interpret Victorian statutes
and statutory instruments in a manner that is compatible with human rights so
far as it is possible to do so in accordance with the purpose of the statute or
statutory instrument.
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551406 BILL LA AS SENT 16/6/2006
The Charter changes the name of the Equal Opportunity Commission to the
Victorian Equal Opportunity and Human Rights Commission and confers
new functions on the Commission in Part 4. The Victorian Equal
Opportunity and Human Rights Commission is intended to act as an
independent monitor of the operation of the Charter.
Part 5 of the Charter contains a number of general provisions including
requirements for the Charter to be reviewed. It also grants the Governor in
Council a power to make regulations and provides for consequential
amendments and savings and transitional provisions.
Clause Notes
PREAMBLE
The Preamble explains the objects that the Charter seeks to achieve and the
context in which the Charter is to be interpreted.
It specifies that human rights are important for everyone and have particular
significance for the Aboriginal people of Victoria.
PART 1--PRELIMINARY
Part 1 sets out the purpose and application of the Charter. It also defines a
number of key words and phrases and provides for the commencement of the
Charter to occur in two stages.
Clause 1 sets out the purpose and citation of the Charter.
Sub-clause (1) provides that the Charter is to be referred to as the
Charter of Human Rights and Responsibilities.
Sub-clauses (2) and (3) outline the purpose of the Charter.
Clause 2 provides for a staggered commencement of the Charter.
Sub-clause (1) provides that with the exception of Divisions 3
and 4 of Part 3, the Charter will commence on 1 January 2007.
Sub-clause (2) provides that Divisions 3 and 4 of Part 3 will
commence on 1 January 2008. Divisions 3 and 4 of Part 3
encompass provisions governing the interpretation of laws and
obligations on public authorities following the enactment of the
Charter.
The staggered commencement will allow for a period of
approximately 18 months for government departments to review
existing laws, policies and procedures to ensure compliance with
the Charter.
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Clause 3 defines certain words and references in the Charter.
Sub-clause (1) contains a number of definitions.
Sub-clause (2) provides guidance in relation to references made
in the Charter to a function and an exercise of a function,
providing that a reference to a function includes a reference to a
power, authority and duty, and a reference to the exercise of a
function includes, where the function is a duty, a reference to the
performance of the duty.
Clause 4 defines the meaning of public authority for the purposes of the
Charter.
Sub-clause (1) contains the definition of public authority.
This definition encompasses two types of public authorities: core
public authorities, who are bound by the Charter generally, and
functional public authorities, who are only bound when they are
exercising functions of a public nature on behalf of the State or a
public authority.
In the category of core public authorities are the following
authorities:
· A public official within the meaning of the Public
Administration Act 2004 (paragraph (a)).
The incorporation of this definition is intended to
promote consistency with existing conceptions of
"government" within Victorian law. It will be necessary
to refer to the Public Administration Act 2004 for a
list of who is covered by the meaning of public official.
The definition includes public sector employees, certain
judicial employees and parliamentary officers, persons
holding certain statutory offices or a prerogative office
and directors of public entities. It excludes the
Governor, the Lieutenant-Governor, judges, magistrates,
coroners, members of VCAT, government Ministers, a
Parliamentary Secretary, the President of the Legislative
Council, the Speaker of the Legislative Assembly and
certain Ministerial officers.
· An entity established by a statutory provision that has
functions of a public nature (paragraph (b)). An entity
includes persons, both legal persons and human beings,
and unincorporated bodies. Guidance on the meaning of
"functions of a public nature" is contained in sub-
clause (2).
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· The Victoria Police (paragraph (d)).
· A Council within the meaning of the Local
Government Act 1989, and Councillors and Council
staff within the meaning of that Act (paragraph (e)).
It will be necessary to refer to the Local Government
Act 1989 to determine the meaning of these terms.
· A Minister (paragraph (f)).
· Courts and tribunals and members of Parliamentary
Committees are also bound by the Charter, when acting
in an administrative capacity (paragraphs (g) and (j)).
For example, they are considered to be public
authorities when hiring staff. The obligation to comply
with the Charter does not, however, extend generally to
Parliament or Parliamentary proceedings or to the courts
when acting in a judicial or quasi-judicial capacity
(paragraphs (i) and (j)).
The obligation to comply with the Charter extends beyond these
"core" government authorities, to cover other entities when they
are performing functions of a public nature on behalf of the State
(paragraph (c)). This reflects the reality that modern
governments utilise diverse organisational arrangements to
manage and deliver government services. The Charter applies to
"downstream" entities, when they are performing functions of a
public nature on behalf of another public authority. Guidance on
the meaning of "functions of a public nature" and on the meaning
of "on behalf of the State or a public authority" is provided in
sub-clauses (2) to (5).
The Charter also provides that regulations made under it may
declare that a particular entity is, or is not, a public authority
for the purposes of the Charter (paragraphs (h) and (k)).
This provision will assist in adding clarity to the scope of the
definition.
Sub-clause (2) contains a list of factors that may be taken into
account in determining if a function is of a public nature.
These factors were distilled from jurisprudence and commentary
relating to like provisions in the United Kingdom Human Rights
Act 1998 and the New Zealand Bill of Rights Act 1990. They are
intended to guide courts and tribunals on the meaning of
functions of a public nature.
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The factors that may be taken into account in determining if a
function is of a public nature are:
· That the function is conferred on the entity by or under
a statutory provision (paragraph (a)). In some cases, a
function may be conferred directly by statute, such as
the powers of arrest which are conferred on an
authorised officer under the Transport Act 1983.
In other cases, an entity may be performing functions
that have been delegated to it (via contract or otherwise)
under statutory authority. These situations need to be
distinguished, however, from situations in which the
private sector is subject to statutory licensing
arrangements which regulate their private businesses,
such as a private fishing business operating under
licence.
· That the function is connected to or generally identified
with functions of government (paragraph (b)).
The Charter gives the example of a private company
managing a prison. In this case, the function has its
origin in governmental responsibilities and is being
performed in the broader public interest.
· That the function is of a regulatory nature
(paragraph (c)). For example, a professional association
which has statutory disciplinary, ethical or qualification
powers is likely to be exercising public functions.
· That the entity is publicly funded to perform the
function (paragraph (d)).
· That the entity is a company whose shares are wholly
held by or on behalf of the State (paragraph (e)).
The companies responsible for the retail supply of water
in Victoria are one example of entities wholly owned by
or on behalf of the State.
Sub-clause (3) provides that the factors listed in sub-clause (2)
are not exhaustive of the factors that may be relevant to the
question of whether a body is performing a public function. In a
particular case, other factors may be equally or more important in
determining the nature of the function. Similarly, the sub-clause
provides that the fact that one or more of the factors exist in
relation to a function, does not necessarily mean that the function
is one of a public nature.
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Sub-clause (4) provides guidance on the meaning of the
expression "on behalf of the State or a public authority".
It clarifies that this phrase is not intended to be confined to an
agency relationship. A more loosely connected arrangement in
which an entity is acting as a representative of or for the purpose
of the State or a public authority may be covered under sub-
clause (1).
The degree of government regulation and control of the functions
being performed are relevant factors to consider when
interpreting the meaning of the expression "on behalf of the State
or a public authority". For example, a non-government school
may be regarded as performing functions of a public nature in
providing education. However, such schools are independent of
government and, although subject to regulation, they are not
controlled by government. For these reasons, non-government
schools are not acting "on behalf of the State" and consequently
their conduct is not regulated by the Charter.
Sub-clause (5) provides further guidance on the meaning of the
expression "on behalf of the State or public authority".
It clarifies that just because an entity is publicly funded to
perform a function doesn't necessarily mean that it is performing
that function on behalf of the State. While public funding may
be relevant to deciding if the entity is acting on behalf of the
State, all of the circumstances, such as the degree of government
regulation and control and the nature of the functions being
performed, are relevant factors to consider.
Clause 5 provides that the Charter does not limit any right or freedom that
is not included in the Charter. The purpose of this provision is to
ensure that the Charter is not misused by limiting a right a person
may have under any other law (including under international law,
the common law, the Constitution of the Commonwealth and a
law of the Commonwealth) on the basis that the right is either not
recognised in the Charter or recognised to a lesser extent in the
Charter.
For example, if a right under an international treaty is a relevant
consideration for the purpose of administrative decision-making,
the Charter does not operate to make that right irrelevant because
it is not expressed in the Charter.
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Clause 6 outlines the application of the Charter.
Sub-clause (1) provides that only persons have human rights.
This clause is to be read together with clause 3 which defines
"person" to mean a natural person. This clause clarifies that the
Charter does not confer any rights on other legal entities apart
from individuals. The accompanying note to this clause makes
clear that corporations do not have human rights under the
Charter. The provision applies regardless of whether a person is
an Australian citizen and applies to all people physically present
within the State.
This provision does not preclude a group of individuals from
making application to a court or tribunal in respect of a question
relating to the human rights outlined in Part 2 of the Charter.
Whether an individual or group of individuals have a cause of
action or otherwise have standing before a court or tribunal is not
affected by this Charter.
Sub-clause (2) sets out the scope of application of the Charter to
the various entities that the Charter applies to: the Parliament;
courts and tribunals; and public authorities. The Charter confers
functions on these bodies in Parts 2 and 3.
Sub-clause (3) clarifies that the Charter does not take away from
or limit the functions conferred on the entities specified in sub-
clause (2) or on entities which otherwise have functions
conferred by the Charter. These include Parliament, courts and
tribunals, public authorities, the Victorian Equal Opportunity
and Human Rights Commission, the Scrutiny of Acts and
Regulations Committee and Victoria Police.
Sub-clause (4) provides that the Charter binds the Crown in right
of Victoria and in its other capacities so far as the legislative
power of the Parliament permits.
PART 2--HUMAN RIGHTS
Part 2 of the Charter sets out the human rights protected by the Charter.
It also outlines the extent to which these rights may be limited.
The Charter provides a general limitation clause in clause 7. It is described
in further detail below. It is one of the key provisions in the Charter.
This clause recognises that no right is absolute and that there may be various
limitations imposed on any right. In addition, specific limitations sometimes
apply in relation to a particular right, as provided in the specific clause
outlining the right to be protected.
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The rights protected by the Charter are contained in clauses 8 to 27.
These rights are based on fundamental human rights protected in
international human rights law. The majority of these rights were codified in
the International Covenant on Civil and Political Rights 1966 (the Covenant)
which the Commonwealth ratified in 1980. Although the rights appear in a
different order to that of the Covenant, they are generally expressed in the
same terms as the Covenant. Some adjustments to language have been made,
to both improve the drafting and to clarify the application of the particular
human right in the context of the State of Victoria.
In some instances a right, or part of a right, contained in the Covenant has
been omitted from the Charter. Omissions have occurred for various reasons.
The right to self-determination contained in article 1 of the Covenant is not
incorporated in the Charter because the right to self- determination is a
collective right of peoples. Moreover, there is a lack of consensus both
within Australia and internationally on what the right to self-determination
comprises. Other rights are omitted because they are matters within the
Commonwealth's jurisdiction and are consequently inappropriate in State
legislation. For example, the prohibition on expulsion of non-nationals
contained in article 13 of the Covenant is omitted for this reason.
Article 23(2) to (4) of the Covenant concerning marriage is also omitted,
as is article 24(3) which concerns a child's right to a nationality.
Other omissions are mentioned in the clause notes below.
Regarding the nature and meaning of the human rights listed in Part 2, it is
intended that clause 32(2) will operate as a guide. Under this clause, a court
or tribunal may examine a number of sources in interpreting the meaning and
nature of the human rights. These sources are international law and the
judgments of domestic, foreign and international courts and tribunals relevant
to the human rights. The operation of clause 32(2) is discussed further
below.
Clause 7 introduces Part 2 and outlines a general limitation applicable to
the rights protected in the Charter.
Sub-clause (1) provides that Part 2 sets out the human rights that
Parliament seeks to protect and promote.
Sub-clause (2) outlines a general limitation applicable to the
human rights in Part 2 of the Charter. Parliament considers a
general limitation to be preferable to limitations that operate on
a clause-by-clause basis. Pursuant to clause 7 of the Charter, a
human right may only be subject under law (whether statutory or
common law) to such reasonable limits as can be demonstrably
justified in a free and democratic society based on human dignity,
equality and freedom.
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This sub-clause reflects Parliament's intention that human rights
are, in general, not absolute rights, but must be balanced against
each other and against other competing public interests.
The operation of this clause envisages a balancing exercise
between Parliament's desire to protect and promote human rights
and the need to limit human rights in some circumstances.
The sub-clause lists a range of relevant factors to be taken into
account when assessing whether a human right may be limited.
These factors include 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
and whether there are less restrictive means reasonably available
to achieve the purpose that the limitation seeks to achieve.
The general limitation clause, including the list of relevant
factors, is modelled on section 5 of the New Zealand Bill of
Rights Act 1990 and, more particularly, on section 36 of the Bill
of Rights contained in the Constitution of the Republic of South
Africa 1996.
Laws which are necessary to protect security, public order or
public safety which limit human rights, are examples of laws
which may be demonstrably justified in a free and democratic
society.
Sub-clause (3) provides that the Charter should not be interpreted
as giving a person, entity or public authority a right to limit or to
destroy the human rights of any person. The purpose of this sub-
clause is to safeguard against the possibility that the Charter
might be misused to destroy or limit rights. Parliament
recognises in the Preamble that human rights come with
responsibilities and must be exercised in a way that respects the
human rights of others. For example, it is not Parliament's
intention that the right to freedom of expression should be used to
destroy the right to privacy.
Clause 8 provides for the right to recognition and equality before the law.
Sub-clause (1) establishes the right to recognition as a person
before the law. This provision is modelled on article 16 of the
Covenant. As noted above, it is intended that clause 32(2) will
operate to guide courts and tribunals as to the meaning and nature
of the right to recognition.
Sub-clause (2) establishes the right of every person to enjoy his
or her human rights without discrimination. This is modelled on
article 26 of the Covenant. The definition of discrimination in
the Charter has the same meaning as provided in section 6 of the
Equal Opportunity Act 1995. The accompanying note to the
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definition of discrimination in clause 3(1) notes that section 6 of
the Equal Opportunity Act 1995 lists a number of attributes in
respect of which discrimination is prohibited. Some of these
attributes are listed in the note, however, this list is not
exhaustive. It will be necessary to refer to the Equal
Opportunity Act 1995 when interpreting the meaning of
discrimination under the Charter.
Sub-clause (3) establishes the right to equality. This sub-clause
provides that people have the right to equal protection of the law
without discrimination. It also provides that people have the
right to equal and effective protection against discrimination.
This provision is modelled on article 26 of the Covenant.
Sub-clause (4) provides that certain measures outlined in the
sub-clause do not constitute discrimination. The purpose of
this provision is to recognise that substantive equality is not
necessarily achieved by treating everyone equally.
Special measures may be required to achieve equality for some
groups in the community. This sub-clause ensures that such
measures do not breach the Charter. This provision is modelled
on section 19(2) of the New Zealand Bill of Rights Act 1990.
The purpose of the measures taken must be to assist or advance a
person or group of persons who are disadvantaged because of
discrimination.
Clause 9 establishes the right to life. This provision is modelled on
article 6(1) of the Covenant. This provision is to be read together
with the savings provision in clause 48. That provision states
that nothing in the Charter affects any law applicable to abortion
or child destruction.
The right to life has been interpreted in some international
judgments as encompassing a procedural obligation to undertake
effective coronial investigations where required.
Clause 10 provides for freedom from various forms of ill-treatment.
Paragraph (a) establishes a right not to be subject to torture.
This provision is modelled on article 7 of the Covenant.
In accordance with clause 32(2), courts and tribunals may
consider article 1 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of
10 December 1984 when examining whether conduct amounts
to torture.
Paragraph (b) establishes a right not to be subject to cruel,
inhuman or degrading treatment. This provision is modelled on
article 7 of the Covenant.
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Paragraph (c) establishes a right not to be subject to medical or
scientific experimentation or treatment without full, free and
informed consent. This sub-clause is also modelled on article 7
of the Covenant. This clause expands on article 7 of the
Covenant as it also includes a prohibition on medical or
scientific treatment without consent. In addition it has been
modified to provide that consent must be full, free and informed.
This modification is intended to reflect the requirements for
consent outlined in section 5(1) of the Medical Treatment Act
1988.
It is intended that the rights in this clause may be subject under
law to such reasonable limitations as can be demonstrably
justified in a free and democratic society based on human dignity,
equality and freedom (see clause 7). For example, under
Victorian law there are some well recognised situations where
full, free and informed consent to medical treatment is not
required. These include where there is an emergency or where a
person is incapable of giving consent and consent is provided by
a substitute decision-maker. Some procedures are also permitted
without consent in accordance with Divisions 3 to 6 of Part 4A
of the Guardianship and Administration Act 1986.
These procedures will not breach the Charter since they are
reasonable limitations under law and can be demonstrably
justified in a free and democratic society.
Clause 11 provides for freedom from forced work.
Sub-clause (1) establishes a right to be free from slavery or
servitude. This provision is modelled on article 8(1) and (2) of
the Covenant.
Sub-clause (2) establishes a right to be free from forced or
compulsory labour. This provision is modelled on article 8(3)(a)
of the Covenant.
Sub-clause (3) of the Charter qualifies the right to freedom from
forced or compulsory labour by providing three exceptions to the
prohibition in sub-clause (2).
The first exception in paragraph (a) is for work or service
normally required of a person who is under detention because of
a lawful court order, or who, under a lawful court order, has been
conditionally released from detention or has been ordered to
perform work in the community. This paragraph is not intended
to apply to prisoners on remand since these prisoners may not be
directed to work (see section 84H of the Corrections Act 1986).
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The second exception in paragraph (b) is for work or service
required because of an emergency threatening the Victorian
community or part of the Victorian community.
The third exception in paragraph (c) is for work or service that
forms part of normal civil obligations. An example of normal
civil obligations is jury service pursuant to the Juries Act 2000.
Sub-clause (3) is modelled on article 8(3)(c) of the Covenant.
However, the Charter does not include article 8(3)(c)(ii), which
provides an exception to the right to be free from forced or
compulsory labour for military service or national service
required to be performed by conscientious objectors, as these are
considered matters within the Commonwealth's jurisdiction.
It is intended that courts and tribunals will examine sub-
clause (3) first when interpreting the prohibition in sub-clause (2)
to determine if the conduct complained of comes within its scope.
Clause 32(2) will then operate to guide courts and tribunals as to
the meaning and nature of sub-clause (2).
Sub-clause (4) clarifies that the reference to "court order"
(as used in sub-clause (3)(a)) includes an order made by a court
of another jurisdiction. This ensures that the exception would
cover the interstate transfer of prisoners to Victoria.
Clause 12 establishes the right to freedom of movement within the State of
Victoria. Freedom of movement requires all Victorians to be
able to move freely within Victoria, to enter and leave Victoria
and to choose where to live within Victoria. This provision is
modelled on article 12 of the Covenant.
The right to freedom of movement may be subject under law to
such reasonable limitations as can be demonstrably justified in a
free and democratic society based on human dignity, equality and
freedom (see clause 7). For example, restrictions on the freedom
of movement of persons lawfully detained, such as prisoners, are
not intended to infringe the Charter. Nor is the right to freedom
of movement intended to bring into challenge restrictions on the
movement of persons who are subject to a lawful order restricting
their movement or where they may live. For example, persons
for whom a guardian has been appointed under the
Guardianship and Administration Act 1986 are within this
category. Guardians under that Act have a discretion to restrain
the freedom of movement and to decide where a person for
whom they are responsible should live. This power is a
reasonable limitation under the Charter. Orders of the Adult
Parole Board which restrict a person's movement or place of
residence would also come within the reasonable limitation as
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would other lawful orders restricting movement, such as family
violence intervention orders.
It is Parliament's intention that the right to freedom of movement
should be observed through government restraint. For example,
the right does not require the provision of positive steps by a
public transport operator to promote free movement.
Clause 13 establishes a right to privacy. The right to privacy means that a
person must not be subject to either unlawful or arbitrary
interference with his or her privacy, family, home or
correspondence and has the right not to have his or her reputation
unlawfully attacked. This provision is modelled on article 17 of
the Covenant. It is intended that the right to privacy is to be
interpreted consistently with the existing information privacy and
health records framework in Victoria to the extent that it protects
against arbitrary interferences.
Clause 14 provides for freedom of thought, conscience, religion and belief.
Sub-clause (1) establishes the right to freedom of thought,
conscience, religion and belief. The right includes the freedom to
have or to adopt a religion or belief of a person's choice and the
freedom to demonstrate his or her religion or belief in worship,
observance, practice and teaching, either individually or as part
of a community, in public or in private.
Sub-clause (2) establishes that a person must not be coerced or
restrained in a way that limits his or her freedom to have or adopt
a religion or belief in worship, observance, practice or teaching.
This clause is modelled on article 18 of the Covenant.
Clause 15 provides for freedom of expression. This clause is modelled on
article 19 of the Covenant.
Sub-clause (1) establishes the right to hold an opinion without
interference.
Sub-clause (2) establishes the right to freedom of expression.
The scope of this right includes the freedom to seek, receive and
impart information and ideas of all kinds, whether within or
outside of Victoria and whether orally, in writing, in print, by
way of art or in another medium chosen by a person.
Sub-clause (3) establishes a limitation on the right of freedom of
expression. It provides that the right to freedom of expression
may be subject to lawful restrictions reasonably necessary to
respect the rights and reputation of other persons, or to protect
national security, public order, public health or public morality.
This is a specific limitation to the right to freedom of expression
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outlined in sub-clause (2). It is modelled on article 19(3) of the
Covenant. In addition to this specific limitation, the general
limitation provided in clause 7 applies to sub-clauses (1) and (2).
For example, restrictions on tobacco advertising would not be in
breach of the right to freedom of expression as sub-clause (3)
specifically contemplates that restrictions may be imposed where
the restriction is reasonably necessary to protect public health.
Clause 16 provides for the right of peaceful assembly and freedom of
association.
Sub-clause (1) establishes the right of peaceful assembly.
This sub-clause is modelled on article 21 of the Covenant.
Sub-clause (2) establishes the right to freedom of association
with others. This right includes the right to form and join trade
unions. This sub-clause is modelled on article 22 of the
Covenant.
As for all of the Part 2 rights, the general limitation in clause 7
applies in relation to this clause. It is intended that these rights
may be subject under law to such reasonable limitations as can be
demonstrably justified in a free and democratic society based on
human dignity, equality and freedom. For example, reasonable
limits may be justified in order to ensure the safety and security
of prison facilities in Victoria.
Clause 17 provides for the protection of families and children.
Sub-clause (1) provides that families are the fundamental group
unit of society and are entitled to be protected by society and the
State. This provision is modelled on article 23(1) of the
Covenant. This sub-clause recognises a right to protection. It is
not Parliament's intention to create a right to found a family in
the Charter. Parliament intends that the term "families" be given
a meaning that recognises the diversity of families that live in
Victoria, all of whom are worthy of protection.
Sub-clause (2) provides that every child, without discrimination,
has the right to such protection as is in the best interests of the
child and which is needed by reason of being a child.
This provision is modelled on article 24(1) of the Covenant.
Discrimination is defined in clause 3(1) of the Charter.
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Clause 18 provides for the right to take part in public life.
Sub-clause (1) establishes a right to participate in the conduct of
public affairs, directly or through freely chosen representatives.
This clause does not provide a right to a specific outcome from
such participation. It requires each person to be given the
opportunity, without discrimination, to exercise this right.
Sub-clause (2) establishes, for eligible persons without
discrimination, the right to vote and to be elected at periodic
State and municipal elections that guarantee the free expression
of the will of the electors, and the right to have access, on general
terms of equality, to the Victorian public service and public
office. This clause is modelled on article 25 of the Covenant.
Clause 19 provides for the recognition of cultural rights.
Sub-clause (1) establishes a right of all persons with a cultural,
religious, racial or linguistic background to not be denied the
right, in community with other members of that background, to
enjoy his or her culture, to declare and practise his or her
religion, or to use his or her language. This provision is
modelled on article 27 of the Covenant. The provision is also
based on section 4 of the Multicultural Victoria Act 2004
which enshrines in law a number of important principles of
multiculturalism.
Sub-clause (2) provides specific rights for Aboriginal persons
in Victoria. It establishes that Aboriginal persons must not be
denied the right, with other members of their community, to
enjoy their identity and culture, to maintain and use their
language, to maintain their kinship ties and to maintain their
distinctive spiritual, material and economic relationship with the
land and waters and other resources with which they have a
connection under traditional laws and customs.
This sub-clause specifically recognises that Aboriginal persons
in Victoria have a right to enjoy their own culture. It is based on
article 27 of the Covenant and decisions of the United Nations
Human Rights Committee extending article 27 to protect the
cultural rights of indigenous peoples. Paragraph (d) is also
modelled on article 25 of the United Nations Draft Declaration
on Indigenous Rights.
Clause 20 establishes a right not to be deprived of property other than in
accordance with the law. This right does not provide a right to
compensation.
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Clause 21 provides for the right to liberty and security of person.
Sub-clause (1) establishes a person's right to liberty and security.
Sub-clause (2) establishes a prohibition on arbitrary arrest or
detention.
Sub-clause (3) establishes a prohibition on the deprivation of
liberty, except on grounds and in accordance with procedures
established by law.
Sub-clause (4) establishes a right to be informed if arrested or
detained. This right applies to a person who is detained as well
as a person who is arrested. It requires such a person to be
informed at the time of arrest or detention of the reason for the
arrest or detention and about any proceedings to be brought
against the person.
Sub-clause (5) establishes a number of procedural rights for
persons arrested or detained on a criminal charge.
Sub-clause (6) establishes a number of procedural rights for
persons awaiting trial.
Sub-clause (7) provides further procedural rights to a person
deprived of liberty by arrest or detention. This sub-clause
establishes a right to apply to a court for a declaration or order
regarding the lawfulness of a person's detention and requires a
court to make a decision without delay and order the release of
the person if the court finds that the detention is unlawful.
Sub-clause (8) provides that a person must not be imprisoned
only because of his or her inability to perform a contractual
obligation.
This clause is modelled on articles 9 and 11 of the Covenant and
embodies safeguards that are well recognised in international
law. It is a right concerned primarily with physical liberty. It is
intended to operate in a different manner to article 7 of the
Canadian Charter of Rights and Freedoms which guarantees the
right to "life, liberty and security of the person" in that the
Victorian provision is not intended to extend to such matters as a
right to bodily integrity, personal autonomy or a right to access
medical procedures.
Parliament does not intend to create any right to compensation
for a person who claims that he or she has been unlawfully
arrested or detained.
16
Clause 22 provides for humane treatment when a person is deprived of
liberty.
Sub-clause (1) establishes the right of all persons deprived of
liberty to be treated with humanity and with respect for the
inherent dignity of the human person.
Sub-clause (2) establishes a right of an accused person who has
been detained or a person detained without charge, to be
segregated from convicted persons, except where reasonably
necessary.
Sub-clause (3) establishes a right of an accused person who has
been detained or a person detained without charge, to be treated
in a way that is appropriate for a person who has not been
convicted.
This clause is modelled on article 10 of the Covenant. Reference
to article 10(3) of the Covenant has been specifically excluded in
the Charter. Clause 22 broadens article 10 of the Covenant by
requiring humane treatment for accused persons and persons who
have been detained without charge. These rights may already be
recognised under specific Victorian laws. For example,
section 13ZB of the Terrorism (Community Protection) Act
2003 provides that persons subject to preventative detention
orders must be treated with humanity, respect for human dignity
and must not be subjected to cruel, inhuman or degrading
treatment.
Clause 23 provides for certain rights for children in the criminal process.
Sub-clause (1) establishes the right of an accused child who has
been detained or a child detained without charge to be segregated
from accused and convicted adults.
Sub-clause (2) establishes the right of an accused child to be
brought to trial as quickly as possible. This is a more onerous
obligation than the requirement of trial "without unreasonable
delay" provided in clauses 21(5)(b) and 25(2)(c).
Sub-clause (3) establishes the right of a child who has been
convicted of an offence to be treated in a way that is appropriate
for his or her age.
This clause is modelled on article 10(2)(b) of the Covenant.
Clause 24 provides for the right to a fair hearing.
Sub-clause (1) establishes that a person charged with a criminal
offence or a party to a civil proceeding has a right to have the
charge or proceeding decided by a competent, independent or
impartial court or tribunal after a fair and public hearing.
17
Sub-clause (2) provides an exception to the right outlined in sub-
clause (1). Under this sub-clause, a court or tribunal may exclude
members of media organisations or other persons or the general
public from all or part of a hearing if permitted to do so by a law
other than the Charter. The accompanying note to this sub-clause
lists a number of Acts in which exclusion of persons from a
hearing is permitted on various grounds. The Acts listed in this
note are not intended to be exhaustive.
Sub-clause (3) establishes a requirement on courts and tribunals
to make public all judgments and decisions. The requirement
does not apply if the best interests of a child or a law other than
the Charter requires or permits otherwise.
This clause is modelled on article 14(1) of the Covenant.
Clause 25 provides for various rights in criminal proceedings.
Sub-clause (1) establishes the right of a person charged with a
criminal offence to be presumed innocent until proved guilty
according to law. This sub-clause should be read together with
clause 49(2) which provides that the Charter does not affect any
proceedings commenced or concluded before the commencement
of Part 2.
Sub-clause (2) outlines the minimum guarantees a person
charged with a criminal offence is entitled to receive, without
discrimination.
Sub-clause (3) establishes the right of a child who is charged with
a criminal offence to a procedure that takes account of his or her
age and the desirability of promoting the child's rehabilitation.
Sub-clause (4) establishes the right of any person convicted of a
criminal offence to have the conviction and any sentence
imposed in respect of it reviewed by a higher court in accordance
with law.
This clause is modelled on article 14(2) to (5) of the Covenant.
The minimum guarantees outlined in sub-clause (2) are based on
those enumerated in article 14(3) of the Covenant. A number of
intentional modifications have been made to the minimum
guarantees. In relation to legal assistance, references have been
made in sub-clause (2)(d), (e) and (f) to the Victorian Legal Aid
Act 1978. It is Parliament's intention that any rights to legal
assistance contained in the Charter are consistent with existing
rights under that Act.
18
It is also Parliament's intention to recognise that some people
charged with a criminal offence will need, and are entitled to,
specialised communication tools and technology in order to
understand the nature and the reason for the criminal charge and
to participate in the judicial process. Sub-clause (2)(j) has been
drafted accordingly.
Sub-clause (2)(g) qualifies the rights of an accused person in
relation to the attendance and examination of witnesses by
including the words "unless otherwise provided for by law".
This qualification is intended to make it clear that current rules
in relation to the cross-examination of certain witnesses, such
as children and victims of sexual assault, continue to apply.
In addition, the rights in this clause may be subject under law to
such reasonable limitations as can be demonstrably justified in a
free and democratic society based on human dignity, equality and
freedom (see clause 7).
Clause 26 establishes a right not to be tried or punished more than once
for an offence for which that person has already been finally
convicted or acquitted in accordance with law. This clause is
modelled on article 14(7) of the Covenant. The protection from
double jeopardy is a well-supported safeguard in Victoria.
Clause 27 provides for certain rights in respect of retrospective criminal
laws.
Sub-clause (1) prohibits a person from being found guilty of a
criminal offence because of conduct that was not a criminal
offence when it was engaged in.
Sub-clause (2) prohibits a penalty being imposed on any person
for a criminal offence that is greater than the penalty that applied
to the offence when it was committed.
Sub-clause (3) provides that if a penalty for an offence is reduced
after a person committed the offence but before the person is
sentenced for that offence, that person is eligible for the reduced
penalty.
Sub-clause (4) provides that this clause does not affect the trial
and punishment of any person for any act or omission which was
a criminal offence under international law at the time it was done
or omitted to be done. The purpose of this provision is to ensure
that a person may still be tried and punished for crimes under
international law, as long as the offences existed under
international law at the time they were committed or omitted.
This clause is modelled on article 15 of the Covenant.
19
PART 3--APPLICATION OF HUMAN RIGHTS IN VICTORIA
Part 3 of the Charter outlines the functions of Parliament, courts and tribunals
and public authorities under the Charter.
Division 1 concerns the role of Parliament in the scrutiny of new legislation.
It requires a statement of compatibility to be prepared in respect of all Bills
introduced into Parliament.
Division 2 provides that Parliament may override human rights in exceptional
circumstances by express declaration in an Act.
Division 3 concerns the role of courts and tribunals in interpreting laws.
It requires statutory provisions to be interpreted in a manner that is
compatible with human rights so far as it is possible to do so in accordance
with the purpose of the provision. This Division also provides an avenue for
the referral to the Supreme Court of certain questions arising in a proceeding
before a court or tribunal. Two types of questions may be referred under the
Charter to the Supreme Court. First, the Charter provides for the referral of
questions of law relating to the application of the Charter. Second, the
Charter provides for the referral of questions arising with respect to the
interpretation of a statutory provision in accordance with the Charter.
In some cases a statutory provision may not be able to be interpreted
consistently with human rights. This Division provides that the Supreme
Court may make a declaration of inconsistent interpretation in such
circumstances. The process by which this may occur is outlined in this
Division, as is the action to be taken where a declaration of inconsistent
interpretation is made.
Division 4 concerns the conduct of public authorities and makes it unlawful
for public authorities to act in a manner that is incompatible with a human
right or to fail to give proper consideration to a human right protected in the
Charter.
Division 1--Scrutiny of New Legislation
Clause 28 provides for statements of compatibility to be prepared in respect
of new Bills introduced into Parliament.
Sub-clause (1) establishes a requirement on a member of
Parliament who proposes to introduce a Bill into a House of
Parliament to cause a statement of compatibility to be prepared
in respect of that Bill.
Sub-clause (2) provides that a member of Parliament introducing
a Bill, or another member acting on his or her behalf, must cause
the statement of compatibility to be laid before Parliament.
The Charter requires this to occur before the member gives his or
her second reading speech on the Bill. The accompanying note
clarifies the application of the requirements in sub-clauses (1)
20
and (2) to both Ministers introducing government Bills and
members of Parliament introducing non-government Bills.
Sub-clause (3) establishes the scope of the requirement outlined
in sub-clause (1). It provides that a statement of compatibility
must state whether, in the member's opinion, the Bill is
compatible with human rights, and if so, how it is compatible,
and, if the member is of the opinion that any part of the Bill is
incompatible with human rights, the nature and extent of the
incompatibility.
Sub-clause (4) provides that a statement of compatibility made
under this section is not binding on any court or tribunal.
This provision makes clear that the Supreme Court has an
independent role in determining questions of law involving the
application of the Charter and questions with respect to the
interpretation of statutory provisions, including provisions for
which a statement of compatibility has been made, in accordance
with this Charter.
Clause 29 provides that a failure to comply with the requirements in the
Charter on statements of compatibility in respect of Bills does not
affect the validity, operation or enforcement of any ensuing Act
or any other statutory provision.
This clause confirms Parliament's intention that clause 28 is not
to be regarded as a constitutional "manner and form" provision
for the passing of legislation. A failure to comply with the
Charter will not affect the validity of any Bill that becomes an
Act.
Clause 30 establishes a requirement for the Scrutiny of Acts and
Regulations Committee to consider any Bill introduced into
Parliament and to report to Parliament as to whether the Bill is
inconsistent with human rights. The accompanying note explains
that this requirement also extends to statutory rules.
Division 2--Override Declaration
Clause 31 provides that Parliament may, in an Act, override the Charter in
exceptional circumstances. The operation of this clause is
intended to occur when Parliament is introducing new legislation
and exceptional circumstances exist which require Parliament to
depart from the Charter in a specific manner and for a fixed
period of time. Examples of exceptional circumstances would be
threats to national security or a state of emergency which
threatens the safety, security and welfare of the people of
Victoria.
21
Sub-clause (1) establishes Parliament's right to override the
Charter through express declaration. Overriding the Charter may
occur either in an Act with Parliament stating that that Act or a
provision of that Act has effect despite the Charter, or by
Parliament declaring in an Act that another Act or a provision of
another Act will operate notwithstanding the Charter.
Sub-clause (2) provides that if an override declaration is made in
respect of an Act or a provision of an Act, the declaration extends
to any subordinate instrument made under or for the purpose of
that Act or provision.
Sub-clause (3) establishes a requirement on a member of
Parliament introducing a Bill containing an override declaration
to make a statement to the Legislative Council or the Legislative
Assembly explaining the exceptional circumstances that justify
the inclusion of the override declaration.
Sub-clause (4) makes explicit Parliament's intention that an
override declaration will only be made in exceptional
circumstances.
Sub-clause (5) outlines when a statement under sub-clause (2)
must be made.
Sub-clause (6) sets out the effect of an override declaration.
To the extent of the declaration, the Charter will not apply to the
Act or provision for which the override declaration has been
made. This includes the interpretation clause outlined in
clause 32 of the Charter. The accompanying note to this sub-
clause clarifies that as the Charter has no application to an Act or
provision for which an override declaration has been made, the
Supreme Court cannot give a declaration of inconsistent
interpretation under clause 36 in respect of that Act or provision.
It also explains that the requirement under section 32 to interpret
statutory provisions compatibly with human rights does not apply
to a statutory provision for which an override declaration has
been made.
Sub-clause (7) provides that a provision of an Act containing an
override declaration expires after five years. The effect of the
override declaration is that for five years from the date of the
override declaration, the Charter will not apply to the Act or
provision for which the override declaration has been made.
Sub-clause (8) permits Parliament to re-enact an override
declaration at any time. It also establishes that all of the
provisions of this clause will apply to any re-enacted declaration.
This means that for a re-enacted declaration Parliament must
follow the same procedures as for the initial override declaration.
22
Sub-clause (9) provides that a failure to comply with the
procedure in the Charter for an override declaration will not
affect the validity, operation or enforcement of any ensuing Act
or any other statutory provision.
Division 3--Interpretation of Laws
Clause 32 provides for certain rules of statutory interpretation under the
Charter.
Sub-clause (1) establishes the requirement that courts and
tribunals must interpret all statutory provisions in a way that is
compatible with human rights, so far as it is possible to do so
consistently with the purpose of the statutory provision.
The object of this sub-clause is to ensure that courts and tribunals
interpret legislation to give effect to human rights. The reference
to statutory purpose is to ensure that in doing so courts do not
strain the interpretation of legislation so as to displace
Parliament's intended purpose or interpret legislation in a manner
which avoids achieving the object of the legislation.
Sub-clause (2) permits courts and tribunals to consider
international law and judgments of domestic, foreign and
international courts and tribunals relevant to a human right in
reading and giving effect to a statutory provision.
It is intended that sub-clause (2) will operate as a guide, so that a
court or tribunal may examine international law and the
judgments of foreign and international courts and tribunals
relevant to the human rights in interpreting the meaning and
scope of the human rights in Part 2 as formulated in that Part.
Under sub-clause (2), a court or tribunal may examine
international conventions, international customs as evidence of a
general practice accepted as law, the general principles of law
recognised by civilized nations, and (as subsidiary means)
judicial decisions and teachings of the most highly qualified
publicists of various nations (see article 38 of the Statute of the
International Court of Justice). Decisions of the International
Court of Justice, European Court of Justice, Inter-American
Court of Human Rights and United Nations treaty monitoring
bodies including the Human Rights Committee, will be
particularly relevant. The clause also permits consideration of
judgments of domestic and foreign courts and tribunals relevant
to a human right when interpreting a statutory provision.
A number of jurisdictions have incorporated international human
rights into domestic law. Decisions from courts in these
jurisdictions including the Australian Capital Territory, Canada,
23
New Zealand, South Africa and the United Kingdom may be
relevant.
Sub-clause (3) confirms that an Act or provision of an Act, or a
subordinate instrument or provision of a subordinate instrument,
will remain valid even if they are incompatible with a human
right. The same result will apply to a subordinate instrument or
provision of a subordinate instrument that is incompatible with a
human right if the Act under which it was made permitted it to be
so made. The corollary of this is that if a subordinate instrument
is incompatible with human rights and the Act under which it was
made did not enable the incompatibility with human rights, the
relevant provision of the subordinate instrument will not be valid
as it would not have been empowered to be incompatible with the
human right.
Clause 33 allows for certain questions to be referred to the Supreme Court
of Victoria.
Sub-clause (1) outlines the process by which a referral to the
Supreme Court may occur. A referral may be made where, in a
proceeding before a court or tribunal, a question of law arises
relating to the application of the Charter or a question arises with
respect to the interpretation of a statutory provision in accordance
with the Charter. This sub-clause requires that in order for a
question to be referred a party must make an application for
referral and the (original) court or tribunal hearing the matter
must consider that the question is appropriate for determination
by the Supreme Court. A referral cannot be made without
satisfying both of these requirements.
Sub-clause (2) outlines the process that is to occur if a referral is
made. It provides that if a question has been referred to the
Supreme Court, the court or tribunal which made the referral
must not make a determination to which the question is relevant
while the referral is pending or proceed in a manner or make a
determination that is inconsistent with the opinion of the
Supreme Court on the question.
Sub-clause (3) provides that if a question is referred by the Trial
Division of the Supreme Court the referral is to be made to the
Court of Appeal.
Sub-clause (4) provides that a question may only be referred to
the Supreme Court in accordance with the procedure outlined in
this clause. This is despite anything contained in any other Act
regarding referrals of questions to the Supreme Court.
24
Clause 34 establishes the Attorney-General's unqualified right to intervene
in proceedings involving the Charter.
Sub-clause (1) establishes the Attorney-General's right to
intervene in proceedings in which a question of law arises
relating to the application of the Charter or a question arises with
respect to the interpretation of a statutory provision in accordance
with the Charter. It also provides that the Attorney-General may
be joined as a party to that proceeding. Whether the Attorney-
General exercises the right to intervene is a matter for his or her
discretion.
Sub-clause (2) clarifies that if the Attorney-General intervenes in
a proceeding under this clause, then, for the purposes of the
institution and prosecution of an appeal from an order made in
that proceeding, the Attorney-General may be taken to be a party
to that proceeding.
Clause 35 contains requirements for the giving of notice to the Attorney-
General and the Victorian Equal Opportunity and Human Rights
Commission.
Sub-clause (1) requires a party to a proceeding to give notice to
the Attorney-General and the Victorian Equal Opportunity and
Human Rights Commission if, in a Supreme Court or County
Court proceeding, a question of law arises that relates to the
application of the Charter or a question arises with respect to the
interpretation of a statutory provision in accordance with the
Charter, or if a question is referred to the Supreme Court under
clause 33.
Sub-clause (2) dispenses with this requirement in two instances.
Where the State is a party to the proceeding, no notice is required
to be given to the Attorney-General. Similarly, where the
Commission is a party to the proceeding, a party need not give
notice to the Commission.
Clause 36 provides for the Supreme Court to issue a declaration of
inconsistent interpretation in certain circumstances.
Sub-clause (1) outlines the application of the clause. This clause
applies in three instances. Paragraph (a) provides that the section
applies if in a Supreme Court proceeding a question of law arises
that relates to the application of the Charter or a question arises
with respect to the interpretation of a statutory provision in
accordance with the Charter. Paragraph (b) provides that the
section applies if the Supreme Court has had a question referred
to it under clause 33. Paragraph (c) provides that the section
applies if an appeal before the Court of Appeal relates to a
question of kind referred to in paragraph (a).
25
Sub-clause (2) establishes that the Supreme Court has the
right to issue a declaration of inconsistent interpretation.
The requirements for issuing a declaration of inconsistent
interpretation are outlined in this sub-clause. Subject to any
relevant override declaration, the Supreme Court must be of the
opinion that a statutory provision cannot be interpreted
consistently with a human right.
Sub-clause (3) imposes further requirements on the Supreme
Court in issuing a declaration of inconsistent interpretation.
It provides that if the Supreme Court is considering making a
declaration, it must ensure that notice is given to the Attorney-
General and the Commission that the Supreme Court is
considering making such a declaration. The Supreme Court may
give the notice itself or may require a party to the relevant
proceeding to give the notice.
Sub-clause (4) provides that the Supreme Court must not make a
declaration of inconsistent interpretation unless it is satisfied first,
that prior notice in the prescribed form has been given to the
Attorney-General and the Commission and that a reasonable
opportunity has been given to the Attorney-General and
Commission to intervene in the proceeding or to make
submissions in respect of the proposed declaration of inconsistent
interpretation.
Sub-clause (5) provides that a declaration of inconsistent
interpretation does not affect the validity, operation or
enforcement of the statutory provision in respect of which the
declaration is made, or create in any person a legal right or give
rise to any civil cause of action. This sub-clause confirms
Parliament's clear and unequivocal intention that the Charter is
not intended to create any independent cause of action or provide
remedies for breach of the Charter's provisions.
Sub-clause (6) requires the Supreme Court to cause a copy of any
declaration of inconsistent interpretation to be given to the
Attorney-General within 7 days after any appeal is finalised or if
no appeal is made, within 7 days after the period provided for the
lodging of an appeal has ended.
Sub-clause (7) requires the Attorney-General to give a copy of
the declaration of inconsistent interpretation to the Minister
administering the statutory provision in respect of which the
declaration was made, as soon as reasonably practicable after
receiving it, unless the Attorney-General is the relevant Minister.
26
Clause 37 provides for the action to be taken on a declaration of
inconsistent interpretation. It establishes a requirement for the
Minister administering the statutory provision in respect of which
a declaration of inconsistent interpretation has been made to take
certain steps within 6 months of receiving the declaration.
Two acts are required. Paragraph (a) requires the Minister to
prepare a written response to the declaration. Paragraph (b)
requires that the Minister cause a copy of the declaration,
together with his or her written response to it, to be laid before
each House of Parliament and published in the Government
Gazette. These requirements are intended to ensure that
appropriate action is taken with respect to any declaration of
inconsistent interpretation that may be issued by the Supreme
Court.
Division 4--Obligations on Public Authorities
Clause 38 places obligations on public authorities.
Sub-clause (1) prohibits public authorities from acting in a way
that is incompatible with human rights. It also prohibits public
authorities from failing to give proper consideration to relevant
human rights when making a decision. This provision is
modelled on section 6 of the United Kingdom Human Rights Act
1998 and is intended to ensure that public authorities make
decisions and act compatibly with human rights. Note that in
clause 3(1) "act" is defined to include a failure to act and a
proposal to act.
Sub-clause (2) qualifies the prohibition in sub-clause (1).
It provides that the prohibition does not apply if the public
authority could not reasonably have acted differently or made a
different decision as a result of a statutory provision or a
provision made by or under an Act of the Commonwealth, or
otherwise under law. An example is provided in this sub-clause
to guide courts and tribunals in the interpretation of the
prohibition on public authorities. This sub-clause is intended to
exonerate public authorities who act to give effect to a statutory
provision that is incompatible with a human right in
circumstances where they could not reasonably have acted
differently or made a different decision.
Sub-clause (3) clarifies that this clause does not apply to an act or
decision of a private nature.
27
Sub-clause (4) further qualifies the prohibition in sub-clause (1).
It provides that the prohibition does not require a public authority
to act in a way, or make a decision, that has the effect of
impeding or preventing a religious body from acting in
conformity with its religious doctrines, beliefs or principles.
It will apply where a religious body may be a public authority
when undertaking a public function (e.g. denominational
hospitals), and also where a religious body may be interacting
with a public authority, for example where the religious body is
funded or licensed by the public authority to undertake certain
functions. The exemption is only in respect of sub-clause (1) and
does not affect the application of other laws that may be relevant
to the religious body in carrying out those functions.
Sub-clause (5) contains the definition of "religious body" in this
clause. "Religious body" is defined to mean a body established
for a religious purpose or an entity that establishes, or directs,
controls or administers an educational or other charitable entity
that is conducted in accordance with religious doctrines, beliefs
or principles.
Clause 39 sets out guidance regarding legal proceedings that may be
available in relation to an unlawful act or decision of a public
authority.
Sub-clause (1) provides that if a person has a right to seek relief
or a remedy otherwise than because of this Charter, founded on
the unlawfulness of some conduct by a public authority, then any
unlawfulness generated by this Charter (as set out in clause 38)
may be a further ground in the cause of action. This clause does
not create any new or independent right to relief or a remedy if
there is nothing more than a breach of a right protected under
Part 2. In particular, the clause does not confer any entitlement
to an award of damages arising from nothing more than a breach
of a right protected under Part 2, nor are any damages to be
awarded referable to the breach of a right protected under Part 2.
The unavailability of damages is further reinforced by sub-
clause (3).
Sub-clause (2) confirms that the Charter does not displace a
person's right to seek any remedy in respect of an act or decision
of a public authority, including a right to seek judicial review, a
declaration of unlawfulness and associated relief including an
injunction, a stay of proceedings or exclusion of evidence.
28
Sub-clause (3) clarifies that a person is not entitled to be awarded
any damages because of a breach of this Charter. This confirms
Parliament's intention that the Charter does not create any
independent cause of action or any independent forms of relief.
Sub-clause (4) provides that nothing in this clause affects any
right a person may have to damages apart from the operation of
this clause.
PART 4--VICTORIAN EQUAL OPPORTUNITY AND HUMAN
RIGHTS COMMISSION
Part 4 outlines the functions conferred on the Victorian Equal Opportunity
and Human Rights Commission in relation to the Charter. It is intended that
the Commission will act as an independent monitor of the operation of the
Charter.
Clause 40 establishes the Commission's unqualified right to intervene in
proceedings involving the Charter.
Sub-clause (1) establishes the Commission's right to intervene in
proceedings in which a question of law arises that relates to the
application of the Charter or a question arises with respect to the
interpretation of a statutory provision in accordance with the
Charter. It also provides that the Commission may be joined as a
party to that proceeding. Whether the Commission exercises the
right to intervene is a matter for its discretion.
Sub-clause (2) clarifies that if the Commission intervenes in a
proceeding under this clause, then, for the purposes of the
institution and prosecution of an appeal from an order made in
that proceeding, the Commission may be taken to be a party to
that proceeding.
Clause 41 outlines the functions of the Victorian Equal Opportunity and
Human Rights Commission under the Charter. These functions
are broadly based on the functions of the Australian Capital
Territory's Human Rights Commissioner with a number of
adaptations to the Victorian context.
The functions are--
· to present to the Attorney-General an annual report that
examines the operation of the Charter, including its
interaction with other laws, all declarations of
inconsistent interpretation made during the year and all
override declarations made during the year;
29
· when requested by the Attorney-General, to review the
effect of Victorian law and the common law on human
rights, and report in writing to the Attorney-General on
the results of the review;
· when requested by a public authority, to review that
authority's programs and practices to determine their
compatibility with human rights;
· to provide education about human rights and the
Charter;
· to assist the Attorney-General in the review of the
Charter under clauses 44 and 45. These reviews are to
be undertaken after the first 4 and 8 years of the
Charter's operation;
· to advise the Attorney-General on anything relevant to
the operation of the Charter; and
· any other functions given to it under the Charter or any
other Victorian law.
The Commission's annual report is expected to focus on key
aspects of the Charter's operation as a conduit for institutional
dialogue.
In relation to paragraph (c), it is intended that the Commission
will work co-operatively with the public authority in making a
comprehensive assessment of the authority's programs and
practices.
The Commission also has a right to intervene in certain
proceedings (see clause 40).
Clause 42 grants the Commission a general power to perform its functions.
The Commission is empowered to do all things that are necessary
or convenient to be done for or in connection with the
performance of its functions under the Charter. This provision
ensures that the Commission has the requisite independence and
flexibility required to perform the functions conferred upon it by
Parliament.
30
Clause 43 provides for reports of the Commission to be laid before
Parliament.
Sub-clause (1) establishes a requirement for the Attorney-General
to cause a copy of any Commission report prepared under
clause 41(a) or (b) to be laid before both Houses of Parliament.
This clause requires this to occur on or before the 6th sitting day
of the House of Parliament after receipt of a Commission report.
Sub-clause (2) allows the Attorney-General to amend a report in
certain circumstances. Amendment is permitted where the
Attorney-General considers it necessary to protect a person's
identity or to protect the public interest.
Sub-clause (3) establishes a requirement on the Attorney-General
if a Commission report is amended to present a statement to
Parliament stating that the report has been amended.
PART 5--GENERAL
Part 5 contains a number of general provisions including requirements for the
Attorney-General to cause reviews to be made of the Charter. It also grants
the Governor in Council a power to make regulations and provides for
consequential amendments, savings provisions and transitional provisions.
Clause 44 provides for the Charter to be reviewed after 4 years of operation.
Sub-clause (1) establishes an obligation on the Attorney-General
to cause a review to be undertaken of the first 4 years of
operation of the Charter. It obliges the Attorney-General to cause
a report of the review to be presented to Parliament on or before
1 October 2011. This clause is not intended to preclude any
review or proposals for amendment that might be made before
that date.
Sub-clause (2) provides a list of matters to be considered in the
Attorney-General's review. These include whether the Charter
should include additional human rights including rights under the
International Covenant on Economic, Social and Cultural Rights,
the Convention on the Rights of the Child and the Convention on
the Elimination of All Forms of Discrimination against Women,
whether the right to self-determination should be included,
whether auditing of government departments should be made
mandatory and whether further provision should be made in the
Charter with respect to proceedings that may be brought and the
remedies available under the Charter in relation to unlawful acts
or decisions of public authorities.
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The intention of this clause is to ensure that the Charter remains
flexible and effective in supporting community values and
aspirations in Victoria.
Clause 45 provides for the Charter to be reviewed after 8 years of operation.
Sub-clause (1) establishes an obligation on the Attorney-General
to cause a review to be undertaken of the 5th to 8th years of
operation of the Charter. It obliges the Attorney-General to
cause a report of the review to be presented to Parliament by
1 October 2015. This clause is not intended to preclude any
review or proposals for amendment that might be made before
that date.
Sub-clause (2) imposes an obligation on the Attorney-General to
include in the review a recommendation as to whether further
reviews of the Charter are necessary.
Clause 46 empowers the Governor in Council to make regulations under the
Charter.
Clause 47 establishes that the Charter makes consequential amendments to
a number of Acts listed in the Schedule to the Charter.
Clause 48 provides that the Charter does not affect any law applicable to
abortion or child destruction, whether before or after the
commencement of Part 2. This encompasses both statute law
and any common law interpretation of statute law.
Clause 49 makes transitional provisions.
Sub-clause (1) establishes that the Charter applies to all Victorian
Acts and subordinate instruments regardless of when they
commenced.
Sub-clause (2) restricts the application of the Charter to legal
proceedings commenced after 1 January 2008. This means that
the Charter may not be relied on in any legal proceedings
commenced before that date.
Sub-clause (3) provides that the obligations on public authorities
in the Charter do not apply to any act or decision made by a
public authority before 1 January 2008.
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Schedule--Consequential Amendments
The Schedule outlines certain consequential amendments made in the
Charter, as follows--
· The Equal Opportunity Act 1996 is amended to change the
name of the Equal Opportunity Commission to the Victorian
Equal Opportunity and Human Rights Commission and to refer
to the new functions conferred on the Victorian Equal
Opportunity and Human Rights Commission by the Charter.
· The Ombudsman Act 1973 is amended to confer upon the
Ombudsman a power to enquire into or investigate whether any
administrative action is incompatible with the human rights set
out in this Charter.
· The Parliamentary Committees Act 2003 is amended to
provide for the new functions conferred on the Scrutiny of Acts
and Regulations Committee by the Charter.
· The Police Regulation Act 1958 is amended to provide that
one of the objects of the Director of the Office of Police
Integrity is to ensure that members of the force have regard to
the human rights contained in the Charter.
· The Public Administration Act 2004 is amended to include
human rights in the list of public sector values and public
sector employment principles.
· The Racial and Religious Tolerance Act 2001 is amended to
take account of the change of name of the Equal Opportunity
Commission to the Victorian Equal Opportunity and Human
Rights Commission.
· The Subordinate Legislation Act 1994 is amended to require
a human rights certificate to be prepared in respect of all
proposed statutory rules. The required content of a human
rights certificate is outlined in the amendment provisions and
an exemption is provided for certain statutory rules, such as
court rules.
· The Victorian Civil and Administrative Tribunal Act 1998
is amended to take account of the change of name of the Equal
Opportunity Commission to the Victorian Equal Opportunity
and Human Rights Commission.
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