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Government response to the 2015 review of the Charter of Human Rights and Responsibilities Act

In 2015, the Attorney-General tabled a review of the Charter Act led by Michael Brett Young, former CEO of the Law Institute of Victoria.

The government supports 45 of the 52 recommendations to strengthen human rights culture in Victoria and make the Charter more effective, accessible and practical.

The response to each recommendation is provided below.

 

No

Recommendation

Government response

1

The Victorian Government make a public statement of commitment to human rights and Ministers reinforce in their dealings with departments and agencies their expectation that they should act compatibly with human rights

Recommendation 1 is supported.

2

The Victorian Secretaries Board include the development of a human rights culture as part of its work in setting values and standards across the Victorian public sector. An inter-departmental committee should support this work by providing leadership and coordination for departments and agencies at the state government level.

Recommendation 2 is supported.

3

The Victorian Government encourage public sector entities to promote a human rights culture in their organisations, including by:

(a) ensuring their organisational vision, plans, policies and procedures support good human rights practice

(b) building relevant human rights capabilities into staff position descriptions and ongoing professional development.

Recommendation 3 is supported.

4

The Victorian Government review the structure and placement of the Human Rights Unit so that it can provide centralised expertise on human rights within government. The Unit’s role should include providing advice, developing and maintaining human rights resources for use within the Victorian government, and providing specialist training (such as training on how to develop human rights compatible policy and legislation, and how to draft statements of compatibility).

Recommendation 4 is supported in principle.

The Human Rights Unit provides expert human rights advice to government agencies. The Government will consider how best to ensure that the Human Rights Unit can continue in this role.

5

The Human Rights Unit update the Charter Guidelines for Legislation and Policy Officers. The Unit should also work with departments and agencies to continue to develop specialist guidance and promotional materials in key areas of policy and service delivery, such as policing, corrections, health services, disability services, child protection and education.

Recommendation 5 is supported in principle.

The Charter Guidelines for Legislation and Policy Officers provide guidance to officers when assessing the human rights impacts of policy and legislative proposals. The Government will consider how best to update existing guidance materials and develop specialist guidance materials for particular policy and service delivery areas.

6

The Victorian Equal Opportunity and Human Rights Commission be given responsibility to provide human rights education within the public sector to

(a) leaders across the Victorian public sector, to ensure that they can influence a positive culture of human rights

(b) local government councillors. As a priority, materials should be available to support the induction of new councillors after the October 2016 local government elections

(c) staff of Victorian public sector departments, agencies and local government. Where possible, the training should be tailored to the needs of particular work areas and be delivered in consultation with front line staff who understand the operational aspects of the work area

(d) private entities that perform functions of a public nature and have obligations under the Charter.

Recommendation 6 is supported in principle.

The Government agrees that human rights education in the public sector is a central part of continuing to build a human rights culture and ensuring the Charter’s effectiveness. The Victorian Equal Opportunity and Human Rights Commission (the Commission) is well-placed to provide this education. The Government will consider how best to ensure that human rights education is provided to the public sector.

7

The Victorian Equal Opportunity and Human Rights Commission facilitate opportunities for public and community sector workers to share experience and expertise on the Charter. Such opportunities could include Human Rights Network events, the production of resources, the establishment of communities of practice sponsored by a senior executive, and the use of existing networks.

Recommendation 7 is supported in principle.

The Government agrees that it would be useful for public and community sector employees to share their experience and expertise on the Charter. The Commission is well-placed to facilitate these opportunities.

8

The Victorian Equal Opportunity and Human Rights Commission provide further human rights education to the community and community advocates.

Recommendation 8 is supported in principle.

The Charter review’s public consultations revealed that many people in the Victorian community want to know more about their human rights. The Government agrees that providing human rights education to the community and community advocates would promote a human rights culture in Victoria. The Government will consider how best to ensure that human rights education is provided to the community and community sector.

9

Public authorities make relevant human rights information available when providing services to the community and provide a way for people to have a say about issues that affect them.

Recommendation 9 is supported.

10

The Victorian Equal Opportunity and Human Rights Commission look for ways to engage with the private sector to build a broader human rights culture in Victoria. Such engagement could include establishing a Corporate Charter Champions group, partnering with businesses on activities, or working with business networks to build understanding of the Charter.

Recommendation 10 is not supported.

The Charter review considered that engaging the private sector on human rights issues would build a broader human rights culture in Victoria, and that the Commission should be responsible for promoting this engagement.

While the Government agrees that broader engagement on human rights issues would assist with building a human rights culture, it considers that the Commission’s focus should be on its statutory functions, including educating duty-holders under the Charter. Private sector entities are only duty-holders (public authorities) under the Charter when they have functions of a public nature and are performing those functions on behalf of the State or a public authority.

Recommendation 6(d), above, recommends that the Commission provide human rights education to private entities that have obligations under the Charter and the Government supports that recommendation in principle.

11

The Judicial College of Victoria be responsible for educating judicial officers and tribunal members regularly on how the Charter operates. Where appropriate, this education could be done in conjunction with professional development for the legal profession.

Recommendation 11 is supported in principle.

The judiciary plays an important role under the Charter. Judges and tribunal members hear and determine Charter claims that are raised in legal proceedings and have responsibility for interpreting laws compatibly with human rights. The Government agrees that it is essential for judicial officers and tribunal members to receive education about the Charter.

12

Section 4 of the Charter be amended to set out a non-exhaustive list of functions of a public nature under section 4(1)(c), including:

(a) the operation of prisons and other correctional facilities
(b) the provision of public health services
(c) the provision of public education, including public tertiary education
(d) the provision of public housing, including by registered housing providers
(e) the provision of public disability services
(f) the provision of public transport
(g) the provision of emergency services
(h) the provision of water supply.

Recommendation 12 is supported in principle.

Section 4 of the Charter defines ‘public authority’. A public authority includes an entity that has functions of a public nature when it is exercising those functions on behalf of the State or a public authority. The review identified some areas in which this definition requires greater clarity, and so proposed including this list of functions of a public nature (as has been done in the ACT Human Rights Act).

The Government agrees that greater clarity is required regarding functional public authorities and will consider how to achieve this, noting the need to ensure that the definition remains sufficiently flexible to reflect the variety of ways in which government services are delivered.

13

The Victorian Government use the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013 (Vic) to prescribe entities to be or not be public authorities—including entities that provide services under national schemes—where necessary to resolve doubt.

Recommendation 13 is supported.

14

A whole-of-government policy be developed for relevant State contracts to include terms that contracted service providers will have public authority obligations when performing particular functions under the contract, and a provision be included in the Charter to authorise this.

Recommendation 14 is supported.

15

The Charter provide for any entity to ‘opt in’ to public authority obligations by requesting the Attorney-General declare them to be a public authority, as in section 40D of the Human Rights Act 2004 (ACT).

Recommendation 15 is supported.

16

The Victorian Government review and clarify how the Charter applies to public sector employees who are not employed under the Public Administration Act 2004 (Vic) (such as teachers).

Recommendation 16 is supported in principle.

The Government agrees in principle that public sector employees should be covered by the Charter’s definition of ‘public authority’. The Government will review the legislative arrangements for the employment of public sector employees who are not employed under the Public Administration Act 2004, to determine whether any amendment is necessary to clarify that such employees are included in the Charter’s definition of ‘public authority’.

17

The Charter be amended to clarify that decisions of public authorities must be substantively compatible with human rights, whether by defining ‘to act’ as including ‘to make a decision’ or by specifying in section 38(1) that it is unlawful for a public authority to make a decision that is incompatible with a human right.

Recommendation 17 is supported.

18

The Victorian Government consider the exception from public authority obligations in section 38(4) of the Charter (an exception relating to the religious doctrines, beliefs and principles of a religious body), as part of its current examination of religious exceptions and equality measures in other Victorian laws, so it can apply a consistent approach.

Recommendation 18 is supported.

19

The second sentence in the note to section 4(1)(j) of the Charter be removed or amended, because listing cases and adopting practices and procedures may sometimes involve acting in a judicial capacity rather than in an administrative capacity.

Recommendation 19 is supported.

20

The Victorian Equal Opportunity and Human Rights Commission be given the power to request information to assist with its statutory functions under the Charter and public authorities be given a duty to assist, as exists under the Privacy and Data Protection Act 2014 (Vic).

Recommendation 20 is supported in principle.

The relevant provision in the Privacy and Data Protection Act 2014 provides that the Commissioner for Privacy and Data Protection may request a public sector body to provide any assistance that the Commissioner reasonably considers appropriate to perform the Commissioner’s functions under that Act. The Government agrees that this would be a useful power to assist the Commission in fulfilling its functions under the Charter.

21

The Victorian Equal Opportunity and Human Rights Commission be given the discretion to charge for the reasonable costs of voluntary compliance reviews, and education and training services.

Recommendation 21 is supported.

22

The Victorian Ombudsman, the Independent Broad-based Anti-corruption Commission, and other relevant oversight bodies be given the power to request the Victorian Equal Opportunity and Human Rights Commission to help them when they exercise their statutory powers in relation to human rights issues.

Recommendation 22 is supported.

23

The Victorian Equal Opportunity and Human Rights Commission be given the statutory function and resources to offer dispute resolution for disputes under the Charter.

Recommendation 23 is under further consideration.

 

24

The Ombudsman Act 1973 (Vic) make clear that the Ombudsman can consider human rights issues relating to the administrative actions of all public authorities under the Charter, except police and protective services officers. The Charter should note this jurisdiction.

Recommendation 24 is under further consideration.

 

25

All relevant public sector oversight bodies should have the ability to consider human rights issues that arise within their jurisdiction, for example, the Mental Health Complaints Commissioner should continue to be able to consider human rights issues that relate to public mental health service providers. Mechanisms should be established to enable referral and appropriate information sharing between complaint-handling and oversight bodies. The Charter should note these roles.

Recommendation 25 is under further consideration.

The Government supports appropriate referrals and information sharing between public sector oversight bodies, and the ability for all such bodies to consider human rights issues that arise within their jurisdiction. The Government is considering the interaction between the proposed referral and information sharing mechanisms and oversight bodies’ existing legislation.

 

26

The Victorian Government ensure the Independent Broad-based Anti-corruption Commission has capacity to investigate allegations of serious human rights abuses by police and protective services officers.

Recommendation 26 is supported.

27

The provisions and process for obtaining a remedy under the Charter be clarified and improved by:

(a) amending the Charter to enable a person who claims a public authority has acted incompatibly with their human rights, in breach of section 38 of the Charter, to either apply to the Victorian Civil and Administrative Tribunal for a remedy, or rely on the Charter in any legal proceedings. The amendment should be modelled on section 40C of the Human Rights Act 2004 (ACT).

The Tribunal’s jurisdiction to determine whether a public authority has breached section 38 of the Charter should be similar to its jurisdiction in relation to unlawful discrimination under the Equal Opportunity Act 2010 (Vic). If the Tribunal finds that a public authority has acted incompatibly with a Charter right, it should have power to grant any relief or remedy that it considers just and appropriate, excluding the power to award damages.

(b) if the Charter is raised in another legal proceeding, the court or tribunal should retain the ability to make any order, or grant any relief or remedy, within its powers in relation to that proceeding. It should remain the case that a person is not entitled to be awarded any damages because of a breach of the Charter, in accordance with existing section 39(3) of the Charter

(c) amending the Charter to make it clear that a person who claims that a decision of a public authority is incompatible with human rights, or was made without proper consideration of relevant human rights, can seek judicial review of that decision on the ground that the decision is unlawful under the Charter, without having to seek review on any other ground.

Recommendation 27(a) is under further consideration.

This recommendation is closely related to recommendation 23—that the Commission be given the statutory function and resources to offer dispute resolution for disputes under the Charter. This recommendation is under further consideration with recommendation 23.

Recommendation 27(b) is supported, as it would retain the status quo for raising the Charter in any legal proceeding.

Recommendation 27(c) is supported in principle, but remains under further consideration, as any amendment to the legal proceedings provisions of the Charter would need to take into account the Government’s response to recommendation 27(a).

28

Section 32 of the Charter be amended to:

(a) require statutory provisions to be interpreted, so far as it is possible to do so consistently with their purpose, in the way that is most compatible with human rights

(b) require, where a choice must be made between possible meanings that are incompatible with human rights, that the provision be interpreted in the way that is least incompatible with human rights

(c) make it clear that section 7(2) applies to the assessment of the interpretation of what is most compatible, or least incompatible, with human rights

(d) set out the steps for interpreting statutory provisions compatibly with human rights, to ensure clarity and accessibility.

Recommendation 28 is supported in principle.

Section 32(1) of the Charter provides that, ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’. An interpretive provision like this is a common feature of human rights instruments. If a law cannot be interpreted compatibly with human rights, the Supreme Court may make a declaration of inconsistent interpretation (section 36). If the words of a statute are clear, then the court must give them their clear meaning. It has been conclusively decided by the courts that section 32(1) does not permit courts to rewrite legislation to make it human rights compatible.

However, the correct method for applying section 32(1) has not been settled by the courts. In particular, the role (if any) that section 7(2) has to play in the interpretive task is not clear. Section 7(2) of the Charter allows human rights to be subject only to such reasonable limits as can be demonstrable justified in a free and democratic society, with reference to a list of factors. The question is whether section 7(2) is relevant when defining the meaning of a statutory provision using section 32(1).

The Government agrees that the correct process in relation to section 32(1), and the role for section 7(2), should be clarified and supports legislative amendment to achieve this. The Government will consider how best to achieve this in the Charter.

29

The Charter define the concepts of ‘compatibility’ and ‘incompatibility’ to make it clear that an act, decision or statutory provision is compatible with human rights when it places no limit on a human right, or it limits human rights in a way that is reasonable and demonstrably justifiable in terms of section 7(2). The Charter should use the two terms consistently, in relation to scrutiny of legislation (sections 28 and 30), the interpretation of legislation (sections 32, 36 and 37) and the obligations of public authorities (section 38).

Recommendation 29 is supported.

30

Section 7, containing the general limitations clause, be excluded from the Charter’s definition of ‘human rights’ and the definition of ‘human rights’ refer to all the rights in Part 2, not only the civil and political rights.

Recommendation 30 is supported.

31

The internal limitation on freedom of expression in section 15(3) be repealed, so the general limitation provision in section 7(2) can be applied as the Charter’s common test to balance competing rights and interests.

Recommendation 31 is not supported.

Section 15(3) of the Charter contains a limitation on the right to freedom of expression. It states that special duties and responsibilities are attached to the right for freedom of expression and the right may be subject to lawful restrictions reasonably necessary—

  1. to respect the rights and reputation of other persons; or
  2. for the protection of national security, public order, public health or public morality.

The Government agrees that that the circumstances set out in section 15(3) would likely be covered by the general limitation provision in section 7(2) of the Charter. However, the Government considers section 15(3) to be a clear statement from Parliament about what a reasonable limitations assessment for the right to freedom of expression might include. For this reason, the Government considers that section 15(3) of the Charter should be retained.

32

Sections 36 and 37 of the Charter be amended to use the words ‘declaration of incompatible interpretation’ and ‘cannot be interpreted compatibly with a human right’, for consistency with terminology used in related sections, including section 32.

Recommendation 32 is supported.

33

Section 35 of the Charter be amended to remove the notice requirement for proceedings in the County Court and to give a judicial officer or tribunal member power to require a notice to be issued for a Charter issue of general importance or when otherwise in the interests of justice (at their discretion). Further, an explanatory note should be added to section 35 to make clear that proceedings do not have to be adjourned while notice is issued and responded to. The Attorney-General and the Commission should retain their right to intervene in all proceedings.

Recommendation 33 is supported in part.

Sections 34 and 40 of the Charter give the Attorney-General and the Commission the right to intervene in, and be joined as a party to, any proceeding in which a question of law arises that relates to the application of the Charter or to the interpretation of a statutory provision in accordance with the Charter. Section 35 of the Charter requires notice to be given to the Attorney-General and the Commission in such a proceeding in the Supreme Court or County Court.

To remove a perceived barrier to parties raising the Charter in legal proceedings, the Charter review recommended these changes to the requirements for notice to the Attorney-General and the Commission.

The Government supports retaining the right for the Attorney-General and the Commission to intervene in Charter proceedings, and agrees that an explanatory note should be included in the Charter to the effect that proceedings do not need to be adjourned while a notice is issued and responded to.

However, the Government considers that the explanatory note, and the measures recommended by recommendations 34 and 35, will be sufficient to remove any perceived barrier to the Charter’s use in legal proceedings. The Government considers it preferable to retain the existing notice requirement in section 35 of the Charter.

The Government agrees that the Charter should give other judicial officers and tribunal members the discretion to require a notice to be issued for a Charter issue of general importance or when otherwise in the interests of justice, so supports this part of the recommendation.

34

Sections 34 and 40 of the Charter be amended to explicitly give a judicial officer or tribunal member power to place conditions on interventions to support case management. Conditions may include, for example, timetabling, setting how the interveners may participate in proceedings, and confining the matters that submissions may address.

Recommendation 34 is supported.

35

The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission publish guidance on how they will consider and process Charter notifications and their cost policies as an intervener (when they do not already do so). The Attorney-General and the Commission should make this guidance available to the public and promote it in the legal sector.

Recommendation 35 is supported.

36

The secretariat of the Scrutiny of Acts and Regulations Committee arrange for human rights induction training for members of the Committee and the Victorian Equal Opportunity and Human Rights Commission offer a human rights briefing to all new parliamentarians.

Recommendation 36 is supported.

37

The process for human rights scrutiny of Bills by the Scrutiny of Acts and Regulations Committee be improved and public engagement in the process be enhanced by:

(a) the Victorian Government considering how best to ensure that the Committee has sufficient time to scrutinise Bills that raise significant human rights issues

(b) the Committee establishing an electronic mailing list to notify individuals and organisations of Bills that it is considering and to invite submissions

(c) the Committee referring to the content of submissions made to it in its Alert Digests on Bills.

Recommendation 37 is supported in principle.

The Government acknowledges that the timing of the parliamentary process sometimes requires the scrutiny process to be undertaken relatively quickly and will consider how to provide the Scrutiny of Acts and Regulations Committee (SARC) with additional time in appropriate cases.

To facilitate greater public participation in the human rights scrutiny process, the Government agrees that it would be useful for the public to be notified of Bills SARC is considering, but notes that it is a matter for SARC to determine how best to do this.

The Government also supports SARC’s practice of listing submissions received in the Alert Digest, attaching copies of submissions to the Alert Digest and making submissions available on its website. The Government agrees that it would be useful for SARC to refer to the content of submissions made to it in its Alert Digest, noting that this is a matter for SARC.

38

The Victorian Government refer amendments to non-Victorian laws that apply in Victoria under a national scheme, and to Regulations under those laws, to the Scrutiny of Acts and Regulations Committee for consideration.

Recommendation 38 is supported.

39

Section 29 of the Charter be amended to specify the Scrutiny of Acts and Regulations Committee’s failure to report on the human rights compatibility of any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or any other statutory provision.

Recommendation 39 is supported.

40

To ensure that House Amendments can be subject to human rights scrutiny and to make the Charter and the Parliamentary Committees Act 2003 (Vic) consistent, the Scrutiny of Acts and Regulations Committee should be given clear power to consider and report on provisions of Acts that it did not consider when a Bill was before Parliament (within a limited time).

Recommendation 40 is supported.

41

The human rights analysis in statements of compatibility be improved by

(a) amending section 30 of the Charter to clarify that the Scrutiny of Acts and Regulations Committee may report to Parliament on statements of compatibility

(b) the Victorian Government publishing draft statements of compatibility when exposure drafts of Bills are released for public comment.

Recommendation 41 is supported.

42

The Victorian Government facilitate the identification of human rights impacts of legislative proposals and options for addressing them by consulting the Human Rights Unit in the Department of Justice & Regulation at an early stage of developing legislation and drafting statements of compatibility.

Recommendation 42 is supported.

43

Members of Parliament are encouraged to provide a short statement on the human rights compatibility of their proposed House Amendments to Parliament, when time permits.

Recommendation 43 is supported.

44

Human rights scrutiny of statutory rules and legislative instruments be made more transparent and effective by:

(a) publishing all human rights certificates in an online repository maintained by the Scrutiny of Acts and Regulations Committee

(b) amending section 30 of the Charter to require the Scrutiny of Acts and Regulations Committee to consider all statutory rules and legislative instruments and report to Parliament if it corresponds with a Minister about the human rights impact of any statutory rule or legislative instrument or considers the statutory rule or legislative instrument limits human rights.

Recommendation 44 is supported.

45

Local laws be made subject to the Charter by amending item 2(f) of Schedule 8 to the Local Government Act 1989 (Vic) to refer to the human rights in the Charter, making incompatibility with the human rights in the Charter a factor for the Minister’s consideration when deciding whether to recommend revocation of a local law.

Recommendation 45 is supported in principle.

The Government agrees that the making of a local law should involve consideration of the local law’s compatibility with human rights, and will consider the best mechanism for ensuring this.

46

The provision for override declarations in section 31 of the Charter be repealed. The explanatory materials for the amending statute should note that Parliament has continuing authority to enact any statute (including statutes that are incompatible with human rights), and the statement of compatibility is the mechanism for noting this incompatibility. If legislation is passed that is incompatible with human rights, the responsible Minister should report to Parliament on its operation every five years.

Recommendation 46 is not supported.

Section 31 of the Charter gives Parliament the power to make an override declaration, which means that Parliament may expressly declare that an Act or a provision ‘has effect despite being incompatible with one or more of the human rights in the Charter or despite anything else set out in the Charter’.

Although the Charter review recommended repealing section 31, the Government will retain section 31 as a clear statement of Parliament’s sovereignty. The process in section 31 provides transparency, requiring the relevant member of Parliament to make a statement justifying the override.

47

The Victorian Government adopt a whole-of-government policy that, in developing a national scheme, the Charter should apply to the scheme in Victoria to the fullest extent possible. Alternatively, the national scheme should incorporate human rights protections equivalent to, or stronger than, the Charter. In developing a national scheme, the Government should consider separately the questions of protection and promotion of human rights through scrutiny of legislation, the interpretation of legislation, whether regulators and others involved in administering a national scheme in Victoria are public authorities, and oversight and compliance mechanisms.

Recommendation 47 is supported.

48

The principles in the Preamble to the Charter be amended to:

(a) recognise the need for public authorities to take steps to respect, protect and promote human rights

(b) recognise the importance of individuals and communities being able to have a say about policies, practices and decisions that affect their lives

(c) refer to self-determination having special importance for the Aboriginal people of Victoria, as descendants of Australia’s first peoples.

Recommendation 48 is supported.

Recommendation 48(c) is closely related to recommendation 49. The Victorian Government is committed to self-determination for Aboriginal people and the Aboriginal community has expressed their wish to see the right to self-determination included in the Charter. As part of the current dialogue on self-determination, the Victorian Government will work with the Aboriginal community to develop options for promoting, protecting and respecting Aboriginal people's self-determination. This may include revisiting the inclusion of a right to self-determination for Aboriginal people.

49

The Victorian Government work with Victorian Aboriginal communities to promote, protect and respect self-determination and the empowerment of Aboriginal people. This work could be pursued through existing forums, such as the Premier’s meetings with members of the Aboriginal communities.

Recommendation 49 is supported.

 

50

Section 17 of the Charter include a new provision that every person born in Victoria has the right to a name and to be registered as soon as practicable after birth.

Recommendation 50 is supported.

51

‘Discrimination’ in the Charter be defined as ‘direct and indirect discrimination’ on the basis of a protected attribute in the Equal Opportunity Act 2010 (Vic).

Recommendation 51 is supported.

52

The Charter be amended to require the Attorney-General to cause there to be a further review of the Charter four years after the commencement of the proposed complaints and remedies provision. The review should consider the operation of the Charter and how it could be improved, including the application of economic, social and cultural rights and the range of remedies available when human rights are interfered with.

Recommendation 52 is supported in principle.

When it was enacted, the Charter included a requirement for two reviews: one after four years of operation and this review, after eight years of operation. There is no statutory requirement for another review.

The Government agrees that it would be useful to require a further statutory review of the Charter, particularly to consider the operation of any amendments to the Charter made as a result of this review. However, the Government considers that the terms of reference for the review should not be prescribed by the Charter. As was the case for the 2015 review, this would mean that the matters to be considered by the review could be informed by the operation of the Charter until that time.

 

Aboriginal & Torres Strait Islander flags

The department acknowledges Aboriginal and Torres Strait Islander people as the Traditional Custodians of the land and acknowledges and pays respect to their Elders, past and present.