Charter responsibilities and the public sector
The Charter sets out the human rights of all people in Victoria as well as the responsibility of public authorities. As such, it helps guide the relationship between the government and the people it serves. The Charter requires each arm of government to play a role in protecting and promoting human rights and, in doing so, puts people and their rights at the centre of the work of the Victorian public sector.
Victoria’s Charter forms part of a broader human rights framework, including international human rights law and laws that also protect people’s rights in Victoria, such as the Equal Opportunity Act 2010 and the Racial and Religious Tolerance Act 2001.
The Charter places responsibilities on the three areas of government: Parliament, courts and tribunals and public authorities.
Charter obligations on Parliament
- When introducing new laws into Victoria’s Parliament, a Statement of Compatibility must be tabled in Parliament, indicating how the proposed law is compatible or incompatible with the rights set out in the Charter.
- The Scrutiny of Acts and Regulations Committee reviews Bills and statutory rules and reports to Parliament as to whether they are compatible with human rights.
- In exceptional circumstances, Parliament may declare a law as being incompatible with one or more of the rights in the Charter but still pass the law.
Charter obligations on courts and tribunals
- Courts and tribunals must interpret all Victorian laws in a way that upholds the human rights outlined in the Charter, as far as this is possible.
- The Supreme Court has the power to declare that a law or provision is inconsistent with human rights but does not have the power to strike it down.
Charter obligations on public authorities
- Public authorities must act compatibly with human rights and give proper consideration to human rights when making decisions.
The section below expands upon Charter obligations on public authorities.
You can also find out more about the benefits of building a human rights culture and how to go about it.
Obligations on public authorities
Acting compatibly with human rights
Public authorities must act compatibly with the human rights in the Charter. This is known as the ‘substantive’ obligation for a public authority and applies to actions undertaken in their day-to-day work.
The obligation to act compatibly with human rights requires public authorities to:
- identify which human rights are relevant in the circumstances
- consider whether their actions or failure to act limits any rights
- if rights are being limited, determine whether the limitation is reasonably justified and proportionate.
Public authorities should always consider ways to protect human rights and ways to achieve their purpose that has the least impact on people’s human rights. Any limitation on rights must only go as far as necessary to achieve a legitimate aim – in other words, if limiting a right is necessary, the action taken should be reasonably justified and proportionate.
Proper consideration to human rights
Public authorities must give proper consideration to human rights when making decisions. This is known as the ‘procedural’ obligation for a public authority. Proper consideration to human rights must be undertaken before a decision is made and may impact on people’s rights.
The obligation to give proper consideration to human rights requires a decision maker to:
- understand, in general terms, which human rights are relevant
- identify any interference or limitation
- turn their mind to the possible impact of the decision on a person’s rights
- justify the decision having balanced any competing interests or obligations.
The obligation to give proper consideration to, and act compatibly with, human rights does not apply where:
- under another law a public authority could not reasonably have acted differently or made a different decision
- the act or decision is of a private nature
- the act or decision would impede or prevent a religious body from acting in conformity with religious doctrines, beliefs or principles.
What is a public authority?
The Charter sets out the definition of a public authority. It includes:
- public officials within the meaning of the Public Administration Act 2004 (this includes all staff who work in state government departments and certain statutory entities)
- Victoria Police
- local councils, councillors and council staff
- courts and tribunals when acting in an administrative capacity (for example, issuing warrants)
- Parliamentary committee members, when acting in an administrative capacity
- a body established by a statutory provision that has functions of a public nature (such as VicHealth, VicRoads and WorkSafe)
- a body 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 (such as private prisons).
- Any entity declared by government regulations to be a public authority
Parliament is excluded from the definition of ‘public authority’ under the Charter.
Parliamentary committees, courts and tribunals are only ‘public authorities’ for the purposes of the Charter when they are acting in an administrative capacity, otherwise they are excluded from the obligations imposed on public authorities. The decisions made by a judge about the outcome of a hearing is a judicial function and not an administrative one.
Functions of a public nature
In determining whether a person is carrying out functions of a public nature, it is relevant to consider whether:
- the function is conferred by legislation
- the function is connected to or generally identified with the functions of government
- the function is regulatory in nature
- the entity is publicly funded to perform the function
- the entity performing the function is a company all of the shares in which are held by or on behalf of the state.
Declared public authority
An entity can also be expressly declared to be, or not to be, a public authority by regulation.
The Adult Corrections Board, the Youth Residential Board, and the Youth Parole Board have been declared not to be a public authority by regulations that expire in 2023.