Critically Discuss The Victorian Charter Of Human Rights And Responsibilities Act 2006 (Vic) With Respect To Administrative Law Principles

Introduction to the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic)

The Charter of the Human Rights and Responsibilities Act hereinafter referred to as the Charter is a law of Victoria which enumerates the rights, responsibilities and freedoms of the people staying in Victoria. It helps to bridge the relationship between the people and the government. Its main aim is to protect as well as promote human rights and it exercises it enforcing various human rights that are mainly developed and inspired from the rights that are present in the International Covenant of Civil and Political Rights. It is fundamentally concerned about the relation between the state as well as local Victorian Government with the public of the state. The Charter requires that each and every public authority established or located in Victoria must consider the human rights while making any decision of the people. It is a landmark in the political and constitutional history of Australia. This Charter depicts departure from the age- old notion that the protection of the human rights can be protected at the best by the parliamentary representatives as limited by the common law applied by judiciary and the responsible government doctrine. This type of view was developed in the 1980s convention which drafted the Australian Constitution. In this assignment, the efficacy of the Charter in relation with the Administrative law, the reasons behind its introduction and its experience in the courts are discussed.

The Charter has been founded on the basis of the following principles which are discussed below; that the human rights are important and necessary in an inclusive and democratic society which gives importance to the rule of law, equality, human dignity and freedom, that human rights belong to each and every people without making any discrimination and that the diversity of Victorian people enhances their community, that human rights are attached with liabilities and are required to be exercised in a manner by which human rights of other people are respected, that human rights give special importance to the Victorian Aboriginal people and consider them as the first people’s descendants of Australia along with their varied social, spiritual, economic as well as cultural relations with their native land and water. In this way the Charter can also be used in the schools as well as in broader education community. Those rights are also protected by the Charter which can be considered as important and significant to the free and open democratic state of Victoria like rights to association, to expression, to association, to protecting families and to vote.

Principles of the Charter of the Human Rights and Responsibilities Act

However the rights contained in the Charter cannot be regarded as absolute but can be restricted as present in other countries. Moreover since it is a state legislation, it cannot protect people staying out of the jurisdiction of Victoria. Moreover any type of federal legislation will take precedence not considering whether any right is being infringed. This Charter also empowered the Parliament to suspend or even infringe rights in the exceptional situations like in case of emergency situation or threat to security. The courts do not have any authority of striking down any impeding legislation but they can interpret the statutory provisions in such a way which will be in consistency with the human rights.

The Charter mainly works by requiring the Victorian Government along with the public servants, Victorian Police, local councils together with other public bodies to act in a manner which is compatible with the human rights. Moreover it also requires them to consider the human rights while making policies, laws, decisions or providing services. Hence it does not matter which local or state government agency the Victorian community is dealing with, same kind of human rights will be applicable.  Each and every new law must be analyzed against the Charter and such law also requires a Statement of Compatibility for telling the Parliament the way it is related to human rights. If it is seen that any law is limiting the rights given in the Charter, manner how it is limited and why it is limited is in the Statement of Compatibility. In the most exceptional situations, a law which does not uphold human rights can be passed by the Parliament by issuing a declaration that it is overriding. This process is aimed to anticipate the potential problems and to stop the unfair treatment from taking place in the first instance. In such circumstances before the Supreme Court, it can issue a statement of declaration of inconsistent interpretation that requires the minister who has proposed such law must revisit it. But the court does not have any power by which the legislation can be struck down. The final say is made by the Parliament regarding the validity of any law in Victoria. The charter is aimed at helping the people of Victoria to navigate the complexity of laws and service standards of the government.

When the Charter was introduced, its main intention was to apply mainly to the non- state authorities that perform public functions. It reflects the reality of the modern government which shows that most of the essential government services like the housing, health and education have been outsourced to the private sector. The applicability of the Charter to private entities that are funded by the state along with other non-governmental organizations entrusted to perform the public functions is hampered. The capability of bringing complaints relating to human rights has an important role to provide accountability in case human rights are breached. Investigation of the complaints can cause systematic changes in the procedures and policies for protecting the human rights and contributing to the development of the culture of human rights within the society and the government. But the complaints’ investigation along with dispute conciliation will be considered effective to achieve these goals in case the complaint mechanism can be accessed and navigated with ease. They shall be able to give suitable remedies and shall be supported with enough investigating powers. The present system has various gaps that reduces the Charter’s effectiveness that are discussed below. Firstly the limitation of the jurisdiction of the Commission and the Ombudsman while receiving complaints. It is known that Ombudsman has an important role for investigating complaints of human rights under the Charter. But there are some gaps in the jurisdiction. Such gaps include the following.

• No jurisdiction is there over police,
• The need of an administrative action in order to trigger complaint in section 13(2) which can limit the power of the Ombudsman while investigating the complaints.
• The private contractors and the other public authorities under the provisions of the Charter fall outside the ambit of the definition of authority given in sections 2 and 13(4) of the Ombudsman Act that restricts the accountability mechanisms for breaching human rights when governmental services are done by the private bodies under the contract.

Limitations of the Charter and its Efficacy in Relation to Administrative Law

These gaps denote that not all types of human related complaints can be put to investigation by the Ombudsman even when valid issues are raised under the Charter by them. Another limitation is that the Commission is given with no investigating powers.

The Charter usually protects human rights in Victoria in three ways mainly. Firstly, public authorities are required to act in such a way which are compatible with human rights. Public authorities provide service related to public nature like hospital, public schools or public housing. It is required that public authorities must take into account the human rights while developing policies and making decisions which can affect the community at large. Here both state and local governments of Victoria are covered under the public authorities. It means that the public has the right to raise the issues related to human rights to the government departments.

Secondly, when developing new laws human rights must be considered. While introducing any new law into Parliament of Victoria, a compatibility statement must be produced in the Parliament. This statement of compatibility enumerates provisions which state how proposed law meets the standards that have been given in the Charter. It helps the Parliament to consider impact of human rights which the proposed law has.

Thirdly, courts have the duty to interpret the law and check whether the law is compatible with human rights. All the Victorian laws are required to be interpreted in such a way that emphasize and uphold the human rights outlined in the Charter. However the Parliament has the last say regarding any law. The Parliament will decide whether the laws are construing to the best interest and benefits of the people of Victoria

The Charter establishes a model called the ‘dialogue model’ to protect the human rights by ensuring that the human rights are considered when making, interpreting as well as applying any Victorian law along with policies without interfering with the present constitutional provisions. This model that exists between various arms of the government, the executive including public authorities, the legislature together with the courts is mainly facilitated by applying various mechanisms.

Although the Charter has notable impact in the courtroom, it has been seldom employed there. In spite of this, it has been efficiently used for challenging the arbitrary or any unjust decisions or policies. The courts along with the tribunals have important function in the operation of the Victorian Charter. It has been ensured by the tribunals and courts that the Charter must serve its objective of generating the ‘dialogue’ regarding the human rights and also ensure that policies, laws and practices are developed by considering the human rights appropriately.

The Role of the Victorian Government and Public Authorities in Enforcing the Charter

There have been only a small number of decisions by the tribunals or the courts which have considered the Charter. But in situations where the court or tribunal has considered, an important and dominant role is played by the Charter in order to ensure that the Victorian Acts are interpreted in such a way that the human rights are considered and decisions given by the public bodies are not in contradiction with the human rights.

The instances where the Charter has been referred are discussed below;

The Victorian Charter is raised very frequently in cases related to access to justice and rights to fair hearing. In the recent case of Materials Fabrication Pty Ltd v Baulderstone Pty Ltd, it was held by the court that it is enshrined by the common law that there is a right to begin legal proceedings and such rights are reinforced by the Charter. A clause that limits the access of the parties to the court was held to be inconsistent with the said right and thus regarded as invalid. It was held by the court that such clause can inhibit severely exercising the legitimate right of the party to the dispute for conducting the trial of the issue before the court. The case of Materials Fabrication Pty Ltd v Baulderstone Pty Ltd throws light on the important role played by the Charter in helping weaker parties to have access to justice through a fair trial which is the fundamental aspect and feature of any legal system.

Many cases concerning the Victorian Charter are mainly related to the homelessness or housing issues that includes eviction orders sought by the housing authorities of the public. In Homeground Services v Mohamed (Residential Tenancies), it was held by the Victorian Civil and Administrative Tribunal that a non- profiting welfare agency had acted in an unlawful manner perusing the Charter while trying to evict a tenant from the transitional accommodation according to the ‘youth tenancy policy’ in situations where it is likely that the tenant can be homeless.

The cases related to the mental health of the people which have construed to the Charter incorporates medical treatment compulsorily and other human rights related issues. In case of R v White, it is seen that the incarceration of an individual having psychiatric condition declared not guilty of murder declared contradicting with the Charter by the court.

Thus it is observed that the Charter usually protects human rights in Victoria. It mainly helps by requiring the Victorian Government along with the public servants, Victorian Police, local councils together with other public bodies to act in a manner which is compatible with the human rights.

Aronson, Mark. “Judicial Review and the Charter.” (2017).

Costello, Sean, and Renuka Thilagaratnam. “Reinvigorating the human rights dialogue.” (2015) Precedent (Sydney, NSW) 128: 16.

Debeljak, Julie. “Rights Dialogue under the Victorian Charter: The Potential and the Pitfalls.” (2017) NEW DIRECTIONS: 407.

Solomon, Russell. “Reviewing Victoria’s Charter of rights and the limits to our democracy.” (2017) Alternative Law Journal 42.3: 195-199.

Homeground Services v Mohamed (Residential Tenancies) [2009] VCAT 1131

Materials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405

Charter of the Human Rights and Responsibilities Act 2006