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Human Rights in Legislation and Regulations

Ministers and departments are must consider whether or not a proposal affects the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Charter Act).

The Parliament's Scrutiny of Acts and Regulations Committee (SARC) will report to Parliament on whether any Bills or Regulations are incompatible with the Charter rights. SARC Alert Digests are available on the SARC website.

Legislation

Cabinet submissions must contain sufficient information to enable Cabinet to be confident that any human rights implications of the proposal have been or where necessary, will be, identified, assessed and addressed.

A summary table of the statements of compatibility is available on the Victorian Equal Opportunity and Human Rights Commission site. Full versions of the statements are available in Hansard.

What is a statement of compatibility?

In accordance with section 28 of the Charter Act, all new Bills introduced into Parliament must be accompanied by a statement of compatibility in both Houses.

A statement of compatibility must set out whether, in the opinion of the member who is introducing the Bill, the Bill is compatible or incompatible with the human rights set out in the Charter Act. The Charter Act requires that reasons be provided in the statement to demonstrate how a Bill is compatible or otherwise to explain the nature and extent of an incompatibility.

A statement of compatibility may conclude that the Bill is incompatible with the Charter Act. This does not prevent the passage of the Bill. Nor does it necessitate use of the override provision in the Charter Act, which may only be invoked in exceptional circumstances.

Under the Charter Act, a failure to table a statement of compatibility does not affect the validity of the Act.

Regulations

Regulations must be accompanied by a Human Rights Certificate either stating that the proposed regulation does not limit a human right or setting out the reasons for any limitation.

What is a Human Rights Certificate?

A certificate must be prepared for most proposed statutory rules certifying whether the proposed rule limits human rights and, if so, provides information about the limitation. This is set out in the Subordinate Legislation Act 1994 and in the schedule to the Charter Act.