Section 18 - Taking part in public life

(1) Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.

(2) Every eligible person has the right, and is to have the opportunity, without discrimination—

(a) to vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors; and

(b) to have access, on general terms of equality, to the Victorian public service and public office.

Section 18 protects the following rights:

  • the right to participate in public affairs directly or through a representative;
  • the right to vote in genuine, periodic and free elections; and
  • the right to have access to the public service and public office.


The first question you need to consider under this right is who it applies to.


Who does s. 18 apply to?


The first paragraph of s. 18 (that is, the right to participate in public affairs) applies to all people in Victoria.


By contrast, the right to vote and to access the public service and public office are restricted to only ‘eligible’ persons.


The term ‘eligible’ is not defined in the Charter. Eligibility is to be determined by Victorian legislation, that is, persons who are eligible to have the right to vote and stand for election are those that Victorian legislation provides may do so. Eligibility may include both Australian citizens and non-citizens.


Another example where eligibility is determined by other Victorian legislation is eligibility for employment in the public service, which is determined by the Public Administration Act 2004 (Vic).

Section 18(1): Right to participate in public affairs


This section provides that every person in Victoria has the right to participate in public affairs. This right is subject to reasonable limitations under s. 7.


Concept of ‘public affairs’
The expression ‘public affairs’ is a broad concept, which embraces the exercise of governmental power by all arms of government at all levels.149


It is not limited to legislative processes but includes participation in non-government organisations and public debate. For example, it will include the formulation of policies regarding disability discrimination through to a local council’s decision regarding the frequency of rubbish collection.


Section 18 acknowledges that participation in public affairs may be direct, or indirect through freely chosen elected representatives. Examples of direct participation considered by the UN Human Rights Committee are:

  • exercising power as members of Parliament or by holding executive office;
  • voting in an election or a referendum to change a Constitution;
  • taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community;
  • taking part in bodies established to represent citizens in consultation with government;
  • exerting influence through public debate and dialogue with elected representatives.150

Indirect participation occurs where people elect a body to represent them. In this case, the UN Human Rights Committee has considered that bodies elected by the people must in fact exercise governmental power; the elected body cannot be a mere advisory body with no legally enforceable powers.151 The Westminster-style system of government found in Victoria falls within this understanding.


It is important to note that the right to participate in the conduct of public affairs does not provide a right to a specific outcome from such participation. It requires each person to be given the opportunity, without discrimination, to exercise the right. This may require a public authority to take positive measures to enable a person to exercise this right.


For this reason it is recommended that policy officers consider:

  • whether there are any impediments to the exercise of the right to participate in public affairs by persons in Victoria;
  • if there are impediments, how might these
    be overcome?


For example, a non-English speaker may face an impediment to his or her right to participate in public affairs if there is no electoral information translated in his or her native language or a language he or she could understand.

Section 18(2)(a): Right to vote and be elected


Right to vote
The right to vote must be established by law. The right to vote does not include as a corollary the right not to vote.


The right to vote may be subject to reasonable limitations under s. 7 of the Charter.


This right is confined to ‘eligible persons’. Section 48 of the Constitution Act 1975 (Vic.) provides that only persons of ‘the full age of eighteen years’ are eligible to vote and excludes people who have been convicted of treason or are serving a sentence of five years or more for an offence against the law of Victoria, the Commonwealth or another state or territory.152


Section 18 makes clear that in order to exercise these rights, people need the opportunity to do so. This means that a government must put in place measures that enable eligible persons to exercise their right to vote. The UN Human Rights Committee has said that the opportunity to vote may require:

  • positive measures to overcome specific difficulties, such as illiteracy, language barriers, poverty, or impediments to freedom of movement, which prevent persons entitled to vote from exercising their rights effectively; and
  • information and materials about voting to be available in minority languages. Specific methods, such as photographs and symbols, should be adopted to ensure that illiterate voters have adequate information on which to base their choice.153


Right to be elected


The right to stand for election ensures that eligible voters have a free choice of candidates in an election.


The UN Human Rights Committee has made clear that any restrictions on the right to stand for election, such as minimum age, must be justified on objective and reasonable criteria. Moreover, persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation.154


This right also requires that conditions for standing for an election, such as nomination dates, fees or deposits, should be reasonable and not discriminatory. Moreover, the grounds for removal of elected office holders should be established by laws based on objective and reasonable criteria and should incorporate fair procedures.


As with the right to vote, the right to be elected is not conferred on all Victorians; it is limited to ‘eligible’ persons.


Eligibility is determined by legislation, including the Constitution Act. In that Act, people who have been convicted of an indictable offence punishable by imprisonment for five years or more are not qualified to be elected as a member of Parliament (s.44(3)). In addition to section 44, you should also refer to sections 48 and 49 of the Constitution Act for qualification requirements to stand for election.

Section 18(2)(b): Right to have access to the Victorian public service and public office

The Charter provides that eligible persons have a right to have access to the Victorian public service and public office. Note also that the Charter155 amends s. 8 of the Public Administration Act 2004 (Vic.) (in the consequential amendments) by inserting human rights into the public service values.


Meaning of ‘public service’ and ‘public office’


The concepts of ‘public service’ and ‘public office’ are not defined in the Charter.


In international law, the term ‘public service’ extends to all positions within the executive, judiciary and legislature and other areas of state administration such as lecturers in public universities. In international human rights law, ‘public office’ would not appear to differ from the interpretation of ‘public service’.


The position is different in Victorian law. The Public Administration Act defines ‘public service’ in the narrower sense of employees of the Crown. This definition of ‘public service’ applies to all references to that term in any Act, unless the contrary intention appears, pursuant to s. 38 of the Interpretation of Legislation Act 1984 (Vic.). This means that ‘public service’ in the Charter only covers the public service in the general sense of employees of the Crown, whereas ‘public office’ is intended to cover other office holders, such as the judiciary, members of Parliament and holders of office in other areas of state administration.

What does the right encompass?


In international human rights law, this right has been interpreted by the UN Human Rights Committee as providing a right of access, on general terms of equality, to positions in the public service and in public office.


The UN Human Rights Committee has said:


‘… affirmative measures may be taken in appropriate cases to ensure that there is equal access to public service for all citizens. Basing access to public service on equal opportunity and general principles of merit, and providing secured tenure, ensures that persons holding public service positions are free from political interference or pressures.’156


To ensure compliance with this right, the criteria and processes for appointment, promotion, suspension and dismissal within the public service must be objective and reasonable, and non-discriminatory.

 

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149 UN Human Rights Committee, General Comment 25, The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25), (Fifty-seventh session, 1996), UN Doc. CCPR/C/21/Rev.1/Add.7 (1996), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 168 (2003) [5].


150 Ibid [8].

151 Sarah Joseph, Jenny Schultz, Melissa Castan The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd edn, 2000, OUP) 655.

152 Constitution Act 1975 (Vic.), s. 48. Section 12 of the New Zealand Bill of Rights Act 1990 expressly provides that electoral rights are only enjoyed by those who are of or over the age of 18 years. By contrast, s. 17 of the Human Rights Act 2004 (ACT) provides that ‘every citizen’ has the right to vote, leaving age requirements to be viewed as a reasonable limitation under s. 28 (the equivalent of s. 7 of the Charter).

153 UN Human Rights Committee, General Comment 25, The right to participate in public affairs, voting rights
and the right of equal access to public service (Art. 25), (Fifty-seventh session, 1996), UN Doc. CCPR/C/21/Rev.1/Add.7 (1996), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 168 (2003) [12].


154 Ibid [15].

155 Section 47 of the Charter and cl. 5 of the Schedule.

156 UN Human Rights Committee, General Comment 25, The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25), (Fifty-seventh session, 1996), UN Doc. CCPR/C/21/Rev.1/Add.7 (1996), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 168 (2003) [23].