The Second Review of Victoria's Charter of Human Rights and Responsibilities Act 2006 (the Charter) under s 45 of that Act had the following terms of reference -
1. Ways to enhance the effectiveness of the Charter, including, but not limited to:
a. reviewing the submissions from the 2011 Scrutiny of Acts and Regulations Committee review and the Committee’s report
b. the functions of the Victorian Equal Opportunity and Human Rights Commission under the Charter and the Victorian Ombudsman under the Ombudsman Act 1973, especially with respect to human rights complaints
c. the effectiveness of the scrutiny role of the Scrutiny of Acts and Regulations Committee
d. the development of a human rights culture in Victoria, particularly within the Victorian public sector
e. the application of the Charter to non-State entities when they provide State-funded services.
2. Any desirable amendments to improve the operation of the Charter, including, but not limited to:
a. clarifying the provisions regarding public authorities, including the identification of public authorities and the content of their human rights obligations
b. clarifying the provision(s) regarding legal proceedings and remedies against public authorities
c. clarifying the role of human rights in statutory construction
d. clarifying the role of the proportionality test in section 7(2), in particular as it relates to statutory construction and the obligations of public authorities
e. clarifying the obligations of courts including under sections 4(1)(j) and 6(2)(b)
f. the need for the provision for an override declaration by Parliament under section 31
g. the effectiveness of the declaration of inconsistent interpretation provision under section 36
h. the usefulness of the notification provision(s) including under section 35
i. any other desirable amendments.
3. A recommendation under section 45(2) as to whether any further review of the Charter is necessary.
The Recommendations in the consequent 276 page report [
PDF] are -
Chapter 1 Building our human rights culture
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.
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.
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.
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).
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.
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.
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.
8. The Victorian Equal Opportunity and Human Rights Commission provide further human rights education to the community and community advocates.
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.
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.
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.
Chapter 2 Clarifying responsibilities for human rights—acts and decisions of public authorities
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.
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.
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.
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).
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).
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. .
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.
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.
Chapter 3 Facilitating good practice and dispute resolution—the role of statutory authorities
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).
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.
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.
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.
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.
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.
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.
Chapter 4 Remedies and oversight—the role of the courts
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.
Chapter 5 Interpreting and applying the law
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.
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).
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.
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. .
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.
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.
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.
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.
Chapter 6 Firming the foundations—more effective parliamentary scrutiny
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
Chapter 7 Emerging issues
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.
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.
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.
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.
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).
Chapter 8 The need for a further review
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.
