Victorian Consolidated Legislation

Charter of Human Rights and Responsibilities Act 2006 - SECT 4

What is a public authority?

4. What is a public authority?



(1) For the purposes of this Charter a public authority is-

   (a)  a public official within the meaning of the
        Public Administration Act 2004; or

Note A public official under the Public Administration Act 2004 includes
employees of the public service, including the Head of a government department
or an Administrative Office (such as the Secretary to the Department of
Justice or the Chairman of the Environment Protection Authority) and the Chief
Executive Officer of the State Services Authority. It also includes the
directors and staff of certain public entities, court staff, parliamentary
officers and holders of certain statutory or prerogative offices.

   (b)  an entity established by a statutory provision that has
        functions of a public nature; or

Notes 1. In section 38 of the Interpretation of Legislation Act 1984 entity is
defined to include a person (both a human being and a legal person) and an
unincorporated body.
2. See subsection (2) in relation to "functions of a public nature".

   (c)  an entity whose functions are or include functions of a public nature,
        when it is exercising those functions
        on behalf of the State or a public authority (whether under contract
        or otherwise); or

Example A non-government school in educating students may be exercising
functions of a public nature but as it is not doing so on behalf of the State
it is not a public authority for the purposes of this Charter. Note
See subsections (4) and (5) in relation to "on behalf of the State or a public
authority".

   (d)  Victoria Police; or

   (e)  a Council within the meaning of the Local Government Act 1989 and
        Councillors and members of Council staff within the meaning of that
        Act; or

   (f)  a Minister; or

   (g)  members of a Parliamentary Committee when the Committee is acting in
        an administrative capacity; or

   (h)  an entity declared by the regulations to be a public authority for the
        purposes of this Charter-

but does not include-

        (i)    Parliament or a person exercising functions in connection with
               proceedings in Parliament; or







   (j)  a court or tribunal except when it is acting in an administrative
        capacity; or

Note Committal proceedings and the issuing of warrants by a court or tribunal
are examples of when a court or tribunal is acting in an administrative
capacity. A court or tribunal also acts in an administrative capacity when,
for example, listing cases or adopting practices and procedures.

   (k)  an entity declared by the regulations not to be a public authority for
        the purposes of this Charter.

(2) In determining if a function is of a public nature the factors that may be
taken into account include-

   (a)  that the function is conferred on the entity by or under a statutory
        provision;

Example The Transport Act 1983 confers powers of arrest on an authorised
officer under that Act.

   (b)  that the function is connected to or generally identified with
        functions of government;

Example Under the Corrections Act 1986 a private company may have the function
of providing correctional services (such as managing a prison), which is a
function generally identified as being a function of government.

   (c)  that the function is of a regulatory nature;

   (d)  that the entity is publicly funded to perform the function;





   (e)  that the entity that performs the function is a company (within the
        meaning of the Corporations Act) all of the shares in which are held
        by or on behalf of the State.

Example All the shares in the companies responsible for the retail supply of
water within Melbourne are held by or on behalf of the State.

(3) To avoid doubt-

   (a)  the factors listed in subsection (2) are not exhaustive of the factors
        that may be taken into account in determining if a function is of a
        public nature; and

   (b)  the fact that one or more of the factors set out in subsection (2) are
        present in relation to a function does not necessarily result in the
        function being of a public nature.

(4) For the purposes of subsection (1)(c), an entity may be acting
on behalf of the State or a public authority even if there is no agency
relationship between the entity and the State or public authority.

(5) For the purposes of subsection (1)(c), the fact that an entity is publicly
funded to perform a function does not necessarily mean that it is exercising
that function on behalf of the State or a public authority.