Human Rights and The Victorian Public Service
Since 1 January 2008, all staff across Victoria's public sector must consider human rights during their day-to-day work and when making decisions. This requirement was introduced by the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter).
Click here to find out more about the Charter
Welcome to the Victorian Government Human Rights Portal
The Human Rights Portal is a joint initiative of VGSO and DOJ Human Rights Unit. It is designed to be a resource for Victorian Public Servants to enable you to fulfill your obligations under the Victorian Charter of Human Rights and Responsibilities Act 2006 (referred to as the Charter).
The site aims to provide extensive human rights information for government staff who need to develop or review policy and legislation or provide legal advice on Charter issues.
Human Rights Updates
22 March 2016 - De Bruyn v Victorian Institute of Forensic Mental Health (Supreme Court of Victoria)This case concerned whether a patient's human rights were breached when a Victorian mental health hospital implemented a smoke free policy (smoking ban). The Court held that: (i) the hospital did not fail to give proper consideration to the plaintiff's Charter rights to property (s 20), humane treatment when deprived of liberty (s 22(1) and (3)) and right not to be subjected to medical treatment without consent (s 20(c)); (ii) the hospital's smoke free policy was within the hospital's powers under the Mental Health Act 2014; and (iii) the hospital's smoke free policy was not inconsistent with the Tobacco Act 1987.
21 January 2016 - Goode v Common Equity Housing (VCAT)VCAT originally dismissed Ms Goode’s discrimination claims in 2013, but did not consider her Charter arguments. She successfully appealed to the Supreme Court on this point and the matter was remitted back to VCAT to be heard and decided again. VCAT found that Common Equity, when exercising the function of providing affordable social or community housing for low income tenants, and when regulated under the Housing Act as to the exercise of this function, is a public authority under the Charter. The functions exercised are of a public nature and the service provided is the provision of social housing (described as a function of government of fundamental importance).
VCAT was ‘satisfied that the function performed by Common Equity of providing affordable housing to low income tenants is sufficiently connected to functions of government’. Further, that Common Equity is publicly funded to perform these functions and is exercising those functions on behalf of the State. However, VCAT did not consider it open to find that there had been a failure on the part of Common Equity to turn their minds to the possible impacts of administrative matters on G’s human rights. A case summary can be found under the 'Resources' tab.
30 December 2015 - ZEH (Guardinship) (VCAT)This case concerned an application to VCAT by the parents of an intellectually disabled woman for VCAT's consent to perform a tubal ligation as a form of permanent contraception. VCAT was not satisfied that there was a therapeutic basis for the procedure or that tubal ligation was the least restrictive option for preventing pregnancy. The application was rejected. VCAT noted that preventing a person from becoming a parent administering such a procedure without their full and informed consent represents a denial of their fundamental human rights.
16 December 2015 - Hoskin v Greater Bendigo City Council (Court of Appeal)This case concerned objections to the proposed building of a mosque in Bendigo. The court held that the Tribunal did not err in its merits review, in particular in its decision that there is no requirement for a social impact assessment and that it was not open to the objectors to object to a form of religious worship in itself. Further, the court held that the Charter also imposes an obligation under s 38 on the Council to have regard to the human rights of the proposed future users of the mosque when deciding whether or not to grant the permit. A case summary can be found under the 'Resources' tab.
26 November 2015 - McKay v Taylor (County Court)This case concerned an appeal against a conviction and sentence in relation to a charge of refusing to accompany a police officer for breath analysis under s 55 of the Road Safety Act 1986. The Court found that there was no Charter jurisdiction, because there was no other remedy or relief being sought on the basis of non-Charter unlawfulness. A case summary can be found under the 'Resources' tab,
19 November 2015 - Fraser v Walker (County Court)This case was on appeal from the Magistrates Court and concerned a conviction of displaying obscene figures outside the East Melbourne Fertility Clinic. The judge found that when viewed objectively, the images displayed, in the context of a protest outside of a medical clinic, were obscene because they might properly be described as disgusting. Also, that the implied Constitutional right to freedom of political communication is not unlimited. A case summary can be found under the 'Resources' tab.
1 November 2015 - North Australian Aboriginal Justice Agency (NAAJA) v Northern Territory of Australia (High Court)In this case, the High Court of Australia upheld the validity of laws granting police in the Northern Territory new powers of post-arrest detention for infringement offences (known as 'paperless arrests' powers). The North Australian Aboriginal Justice Agency (NAAJA) and the plaintiff challenged the constitutional validity of the laws and argued that: - the detention power was punitive in nature and contravened the separation of powers under Ch III of the Constitution (which they argued applied in the NT) - alternatively, it undermined the institutional integrity of the NT courts contrary to the principle in Kable v DPP (which invalidates state and territory legislation that requires courts to act in a way inconsistent with their Federal jurisdiction).
In a 6:1 decision, the Court held that the legislation was valid. In a joint judgment, French CJ, Kiefel and Bell JJ affirmed the principle of legality, which favours an interpretation minimising the impact on fundamental rights and freedoms, including the right to liberty. Whilst finding the legislation was valid because it did not breach the separation of powers doctrine, their honours noted the limits on the detention power, including that legislation which removes the court's ability to supervise detention may be constitutionally impermissive.
Gageler J dissented and found that the legislation was invalid on Kable grounds. He concluded that the legislation authorised punitive detention; the period of detention was not reasonably necessary to achieve any proper law enforcement purpose and was left open to the discretion of police. Therefore, it was a punitive power, under which police acted not as accuser but as judge.
Bare v Independent Broad-Based Anti-Corruption Commission (IBAC)
On 29 July 2015, the Court of Appeal, by majority, allowed an appeal by Nassir Bare against a decision of a single judge of the Supreme Court. The judge had upheld the original decision of the Director (Director) of the Office of Police Integrity (OPI) not to investigate a complaint against a member of Victoria Police of cruel, inhuman or degrading treatment. Among other things, Mr Bare complained to the OPI that he was capsicum sprayed by police while handcuffed, had his teeth chipped on the gutter during his arrest and was racially abused by officers.
The Court of Appeal held that the decision was unlawful on the basis of an error of law on the face of the record – specifically, the Director’s failure to give proper consideration to Mr Bare’s human rights, as required by section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Charter). The Court of Appeal quashed the decision and IBAC–which has since replaced the OPI – to reconsider Mr Bare’s complaint and to give proper consideration to his Charter human rights when doing so.
Charter Review 2015
In March 2015, the Government appointed Michael Brett Young to lead the 2015 review of the Charter. Mr Brett Young's report was tabled in Parliament on 17 September 2015. The report makes recommendations to strengthen human rights culture and make the Charter more accessible, effective and practical. The Government is considering the recommendations of the Review. A copy of the Charter review report can be found under the 'Resources' tab.
26 June 2015 - Carolan v The Queen (Court of Appeal)
This case concerned Mr Carolan, a serious sex offender, who was under an indefinite sentence of imprisonment. The Court of Appeal discharged the indefinite detention order, finding the County Court erred in placing Mr Carolan under this order. The Court of Appeal also used section 32 of the Charter to interpret the SSODSA provisions in a more rights compatible way
21 November 2014 Goode v Common Equity Housing (Supreme Court)
This case was on appeal from an order made in the Tribunal that dismissed Ms Goode's application against Common Equity Housing and allegations of prohibited discrimination and breaches of the Charter.
Justice Bell found that when a person is entitled to seek relief or remedy in the tribunal on a ground of non-Charter unlawfulness, it does not lose the jurisdiction to grant relief or remedy on a ground of Charter unlawfulness because the non-Charter ground is rejected.
For more information, see under the 'Resources' tab.
3 October 2014
Kerrison v Melbourne City Council (Occupy Melbourne case)
This case was an appeal from the Muldoon decision by Justice North in the Federal Court. North J found that the relevant Council provisions were valid and not incompatible with rights under the Charter. The Full Court of the Federal Court dismissed the appeal.
For more information, see under the 'Resources' tab.
10 June 2014
VEOHRC 2013 Charter Report
The Victorian Equal Opportunity and Human Rights Commission has released its 2013 report on the operation of the Charter.
The report examines the way the Charter has been considered and applied in Victoria in 2013 and includes perspectives from community organisations, state and local governments and statutory agencies. The report also details Victorian Parliament's consideration of the Charter, and how the Charter has been addressed and interpreted by Victorian courts.
A copy of VEOHRC's report can be found under the 'Resources' tab.
15 May 2014
DPP v Bryar (Supreme Court)
In this case a judicial registrar found the accused guilty of a lesser offence than one charged. The police informant sought review of this decision, but the Magistrate accepted a plea of autrefois convict (double jeopardy).
On appeal to the Supreme Court, Rush J found that the intent of the legislation was to provide all parties, incouding police informants, with a right of appeal by way of hearing de novo before a magistrate from a proceeding determined by a judicial registrar.
Rush J also held that while the Charter embraces the common law principle against double jeopardy, that does not permit an interpretation that is inconsistent with the grammatical meaning and purpose of the relevant section.
For more information, see under the 'Resources' tab.
16 April 2014
Christian Youth Camps (CYC) v Cobaw Community Health Services (Court of Appeal)
In this case, the Court of Appeal, by majority, dismissed CYC's appeal, finding that there was no error in VCAT's findings that:
(i) there was discrimination on the basis of sexual orientation
(ii) neither of the exemptions directed at preserving religious freedom applied in the circumstances of the case.
For more information, see under the 'Resources' tab.
16 April 2014
DPP v JPH (Supreme Court)
JPH is a serious sexual offender on a supervision order. The DPP applied for a detention order (which has the effect of committing an offender to detention in prison for the period of the order).
Forrest J found that JPH posed an unacceptable risk of committing a sexual offence and the risk would be unacceptable unless a detention order was made. No less restrictive means were available for managing the risk.
There was no inconsistency between the detention order regime and Charter rights, particurlarly section 21 (liberty and security of person) and section 22 (humane treatment when deprived of liberty).
30 October 2013
Paul Slattery v Manningham City Council (Victorian Civil and Administrative Tribunal)
In Slattery v Manningham City Council, Senior Member Nihill found that a declaration prohibiting Mr Slattery from attending any building owned, occupied or managed by the Maningham City Council constituted direct discrimination in the provision of services on the grounds of disability in breach of section 44 of the Equal Opportunity Act 2010. It was also in breach of section 38 of the Charter. The Victorian Equal Opportunity and Human Rights Commission intervened in the proceeding.
For more information see the 'Resources' tab.
1 October 2013
The Federal Court of Australia has handed down an important judgment. For more information see the 'Resources' tab.
The matter concerned the occupation of public gardens close to the centre of the City of Melbourne by Occupy Melbourne and the response by the authorities to those actions. The applicants’ argument was that the enforcement of various provisions by the Council against the protesters was the main reason that the protest had to be called off and the statutory scheme and the enforcement action taken under it were unlawful. They sought declarations that the authorising statutes, the delegated legislation made under them, and the enforcement actions were unlawful, and they sought injunctions restraining the Council from using the provisions against the protesters.
The key findings from North J included:
the relevant provisions are not incompatible with the rights under the Charter
- the relevant Council provisions were valid
- the arrests were lawful
- five of the eight compliance notices issues were validly issued and three were not (the three invalid notices were not key aspects of the outcome. More broadly, the Council’s actions were lawful and proportionate).
9 July 2013
In response to requests for assistance in preparing Human Rights Certificates for statutory rules and legislative instruments, the Human Rights Unit has developed a 'Guide to preparing Human Rights Certificates' for policy officers. The Guide can be accessed by clicking on 'Legislation and Policy Development' --> 'Developing Legislation and Policy' --> Human Rights Certificates
9 April 2013
Two significant Charter decisions have been handed down early 2013 - Bare v Small and Victorian Toll v Taha; State of Victoria v Brookes ('Taha'). For more information see the 'Resources' tab.
Bare v Small considered whether the right not to be subjected to cruel, inhuman or degrading treatment required an independent investigation into allegations of police misconduct, finding there was no such implied right under the Charter. The Court of Appeal in Taha upheld a Supreme Court decision that section 160 of the Infringements Act 2006 was to be read as a unified whole with consideration to the Charter, to require that conditions which permit relief from imprisonment are considered before an order of imprisonment is made.
12 December 2012
See the 'Resources' tab for two significant Charter decisions handed down late 2012 - Magee v Delaney and Aitken v Deparment of Education and Early Childhood Development.
Magee v Delaney considered the limits of the right to freedom of expression, finding that while painting over an advertisement in protest was capable of imparting information, damage to a third person's property was not protected under the Charter. Aitken found that Special Religious Instruction in state primary schools did not discriminate against the complainant's children in breach of the Equal Opportunity Act.
14 March 2012
Government Response to Charter review tabled
On 14 March 2012 the Victorian Government tabled its response to the Scrutiny of Acts and Regulations Committee's Report of its review of the Charter in Parliament.
Some of the key elements of the response, as set out in the Executive Summary, include:
- - The Committee made a number of recommendations on improving and clarifying the operation of the Charter. The Government supports the majority of these reommendations on whole or in part. The Government will adopt recommendations to improve parliamentary scrutiny processes under the Charter, improve internal complaints processes, clarify the legal status of certain provisions and repeal the parliamentary override provision.
- - In relation to SARC's majority recommendation relating to the role of courts or tribunals and the obligations of public authorities, the Government is seeking further, specific legal advice before responding. The Government believes that there is an ongoing place for the courts in protecting rights in relation to the Charter but acknowledges the concerns raised by the SARC majority as to the role of courts and the obligations of public authorities. The issues raised by SARC on these particular questions have generated controversies that are best considered on the basis of clear evidence.
29 February 2012
The Court of Appeal has handed down a judgment considering the right of access to legal aid as it relates to the right to a fair hearing under section 24 of the Charter, and the rights in criminal proceedings in s 25(2)(d) and (f) of the Charter. It was held the power conferred on VLA is discretionary and the Charter does not extend VLA's obligations. The decision also sets out the Court of Appeal's approach to the interpretation section in 32 of the Charter following the High Court decision in Momcilovic.
Read the judgment here.
11 January 2012
Read the judgment here.
25 November 2011
Passage of the Commonwealth Human Rights (Parliamentary Scrutiny) Bill 2010
The Commonwealth Senate passed the Human Rights (Parliamentary Scrutiny) Bill 2010 on Friday 25 November.
The Bill introduces a requirement for Statements of Compatibility (SOCs) to accompany all new Commonwealth Bills and disallowable legislative instruments and establishes a new Parliamentary Joint Committee on Human Rights.
The Commonwealth SOCs will differ from those in Victoria. Notably, Commonwealth SOCs must contain an assessment of whether the Bill or legislative instrument is compatible with the rights and freedoms recognised in the seven core international human rights treaties which Australia has ratified. These treaties are:
The obligation to table SOCs will commence 28 days after the Bill receives Royal Assent.
The Parliamentary Joint Committee on Human Rights will have functions to:
The Committee is to report on each of these matters to both Houses of Parliament.
14 September 2011
SARC releases report on Charter Act review
- * International Covenant on Civil and Political Rights
- * International Covenant on Economic, Social and Cultural Rights
- * International Convention on the Elimination of All Forms of Racial Discrimination
- * Convention on the on the Elimination of All Forms of Discrimination against Women
- * Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- * Convention on the Rights of the Child
- * Convention on the Rights of Persons with Disabilities
- * examine Bills for Acts and legislative instruments for compatibility with human rights;
- * examine Acts for compatibility with human rights; and
- * inquire into any matter relating to human rights which is referred to it by the Attorney-General.
The Scrutiny of Acts and Regulations Committee has released the report of the Review of the Charter of Human Rights and Responsibilities Act 2006. The report makes 35 recommendations. The most significant recommendation, number 35, provides two options for reform of the regime for protecting and upholding human rights in Victoria:
The Premier issued a statement thanking the Committee for its work and indicating that the Government will respond within six months.
8 September 2011
- * option 1 (agreed to by a minority of the Committee) would retain all of Part 3 of the Charter, subject to modifications recommended elsewhere in the report
- * option 2 (agreed to by a majority of the Committee) would retain only the Parliamentary scrutiny parts of Part 3 of the Charter and remove court functions (such as interpretation and declarations of inconsistent interpretation) and public authority obligations under section 38.
The judgment discussed a number of important Charter issues, including:
* the constitutional validity of section 32 of the Charter (a majority of the Court found it was constitutionally valid)
* the constitutional validity of section 36 of the Charter (a majority of the Court found it was constitutionally valid)
* the role of limitations of rights under s 7 of the Charter in the functions under sections 32 and 36 of the Charter
The reasons on many of these issues are lengthy and complex.
The Court also found that the relevant parts of the Victorian Drugs Act was not invalid under section 109 of the Constitution.
Read the judgment.
6 September 2011
The Court of Appeal, overturning Bell J's decision, found that:
- * The principal mechanism for challenging decisions of public authorities is through judicial review proceedings.
- * While Charter issues may arise for determination in VCAT proceedings in other ways, the Charter does not confer upon VCAT a power to conduct a collateral review of a decision of the public authority.
- * A separate ground of unlawfulness is required before a person can rely upon unlawfulness based upon a breach of s 38 of the Charter.
For more information on important Charter cases, visit our Charter Act cases page.