Charter and the Government

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:

1. identify which human rights are relevant in the circumstances
2. consider whether their actions or failure to act limits any rights
3. 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.

Exceptions

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.

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
• ministers
• 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.