Human rights legislation

Human rights are protected under the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter Act), which came into full effect on 1 January 2008. 

The Charter Act

The Charter Act contains twenty rights that promote and protect the values of freedom, respect, equality and dignity. The Victorian Government, local councils and other public authorities must consider how human rights are protected when creating legislation, implementing policies or delivering services.

Guidelines for public authorities and government

The Victorian public sector (External link) is bound by laws that give guidance on how to make Victoria a safer, fairer and more inclusive state. These laws include the Charter of Human Rights and Responsibilities, the Equal Opportunity Act 2010 and the Racial and Religious Tolerance Act 2001. Together, these laws set out the rights and entitlements of the people of Victoria. They also identify the responsibilities of public authorities to protect and promote human rights, and eliminate discrimination, sexual harassment, and racial and religious vilification.

What is a public authority?

The Charter Act places specific legal obligations on public authorities regarding human rights. A definition of what constitutes a public authority is found in section 4 of the Charter Act.

What is a public official?

A public official is:

• an entity established by statute that has functions of a public nature
• an organisation that is not part of government, but perform functions of a public nature on behalf of government (these may be non-government or private sector organisations),Victoria Police, local councils and ministers.

The definition includes a list of factors that assist to determine whether a function is of a public nature. The test looks to the nature of the services provided by an organisation. The Charter Act intends that a broad definition of public authority be applied.

Public sector human rights value

The Charter Act amends the Public Administration Act 2004 to add a new human rights public sector value and employment principle. This came into operation on 1 January 2007. The new value is reflected in the Code of Conduct for Victorian Public Sector Employees.

As a value, this means that those working in the public sector must respect and promote the human rights set out in the Charter Act. As an employment principle, it means that human rights must be upheld in an employee’s daily work.

Obligations on public authorities

In addition to the obligations above that apply to public sector employees, all public authorities have to comply with additional obligations.

The Charter Act imposes obligations on public authorities to consider relevant human rights when making a decision. The Charter Act also requires public authorities to act in a manner that is compatible with human rights.

For state public servants and those working for other public authorities, the Charter Act reinforces many of the sound work practices already in place. While public services are already delivered in a manner which respects human rights, the Charter Act can raise the standard of service delivery.

Charter Intervention Guidelines

The Charter Act is a Victorian law that sets out the human rights of all people in Victoria.

The Charter requires public authorities, such as Victorian state and local government departments and agencies, and people delivering services on behalf of government, to act consistently with the 20 human rights in the Charter.

The Attorney-General’s intervention function under the Charter

Under section 34 of the Charter, the Attorney-General may intervene in any court or tribunal proceeding in which a question of law arises that relates to the application of the Charter or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter.

Under section 40 of the Charter, the Victorian Equal Opportunity and Human Rights Commission (the Commission) may also intervene.

When the Attorney-General intervenes in a proceeding, the Attorney-General becomes a party to that proceeding. The Attorney-General’s role is to put forward views on the Charter and how it should be interpreted and applied.

How are Charter notifications processed?

While the Attorney-General may intervene in any proceeding, section 35 of the Charter requires a party to a Supreme Court or County Court proceeding to give notice in a prescribed form to the Attorney-General and the Commission if the proceeding raises a Charter issue. Generally, the Victorian Government Solicitor’s Office (VGSO) is served with a copy of this notice. In respect of proceedings that are not commenced in the Supreme Court or County Court, the parties may notify VGSO that a Charter issue is raised in the proceeding.

To this end, a notice should be served to the Human Rights Managing Principal Solicitor(s) at VGSO, by email, post or fax:

Email: charter@vgso.vic.gov.au (External link)

Post: VGSO, Level 25, 121 Exhibition St, Melbourne, Victoria, 3000

Fax: (03) 8684 0449

As legal advisors to government, VGSO advises the Attorney-General of the notice, the issues, and relevant timeframes.

The Attorney-General then decides whether or not to intervene in the proceeding.

What factors does the Attorney-General consider when deciding whether or not to intervene in a proceeding?

Some of the factors the Attorney-General considers include:

• whether the proceeding involves a new or unsettled area of law, or provides an opportunity to clarify a disputed interpretation of the law
• whether the Charter issue raised has significant ramifications beyond the parties to the proceeding
• whether the effect on human rights is significant
• the Government’s policy position in relation to the Charter issue, for example where it involves a balancing of competing rights
• the public authority involved in the proceeding
• whether the Attorney-General proposes to present arguments that the other parties will not canvass
• whether the Attorney-General’s involvement will provide assistance to the court or tribunal hearing the proceeding (which the parties are not likely to provide)
• the positions of the parties, in particular whether any party has requested the Attorney-General to intervene and whether any party opposes intervention
• the nature of the proceeding and the court or tribunal in which the proceeding is brought
• the stage of the proceeding at which the Charter issue is raised, including whether it is raised at an interlocutory stage or at final hearing
• whether the intervention would add unnecessary or inappropriate time, cost or delay to the proceeding
• cost considerations
• whether the Commission is intervening.

What are the Attorney-General’s policies regarding costs?

The Attorney-General will not ordinarily seek a costs order against a party in a proceeding in which the Attorney-General has intervened. However, a costs order might be sought in appropriate cases, for example where the party that raised the Charter issue abandons it at a late stage in proceedings.