The Charter supports the democratic process

Communication

The Charter embraces a ‘dialogue model’. It sets up a system where the different parts of government – the courts, the parliament and the public service – discuss and agree on how human rights should apply in Victoria. The Victorian Parliament gets the final say and can change the Charter to move with the times and reflect changes in community values and attitudes.

Statements of Compatibility

The human rights impact of Bills, statutory rules and policy submissions provided to Cabinet or introduced into Parliament need to be clearly explained in an accompanying statement. This statement allows Cabinet and the Parliament to consider whether a limitation on a right is justified.

Compatibility

The Charter requires that all statutory provisions (eg. laws, regulations) be interpreted, as far as possible, in a way that is compatible with human rights. If laws or regulations can be understood in a number of ways, the interpretation that considers human rights is preferred.

No strikedown laws

Where the court cannot interpret a law consistently with the Charter, the Supreme Court may make a Declaration of Inconsistent Interpretation and Parliament will then decide whether to change the law. Unlike the United States’ Bill of Rights, the Charter does not allow courts to strike down laws as unconstitutional.

Who is Responsible for Protecting Rights?


Section 38(1) of the Charter imposes legal duties and responsibilities on public authorities. It states:

s.38(1) “it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.”

Section 7 of the Public Administration Act 2004 sets out the values applicable to the public sector (note that some public authorities may not be part of the public sector and therefore not bound by this Act). The Public Administration Act 2004 now includes a new human rights public sector value:

s.7(g) human rights – public officials should respect and promote the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 by -

(i) making decisions and providing advice consistent with human rights; and

(ii) actively implementing, promoting and supporting human rights.

The public sector Code of Conduct also refers to the Charter and human rights values.

Section 8 of the Public Administration Act sets out employment principles applicable to the public sector and now includes a new employment principle stating that human rights as set out in the Charter are upheld.

The focus is on prevention of human rights abuses

Promotion

The Charter aims to improve service delivery and ensure transparent decision making by promoting a human rights culture in Victoria. The model of human rights protection aims to prevent human rights transgressions by requiring human rights to be at the fore of government decision making.

Act compatibly

The Charter requires all public authorities to act compatibly with human rights. The Charter defines public authority and makes it clear that it includes a wide range of organisations providing services of a public nature. This could include private sector organisations under contract. The Victorian Public Sector Code of Conduct and the Public Administration Act 2004 also require the public sector to respect human rights.

Anticipating and preventing

There is no additional right to legal action for a breach of the Charter. The focus of the Charter is about getting things right at a planning and policy stage - anticipating and preventing human rights infringements.