Charter Intervention Guidelines

The Charter of Human Rights and Responsibilities Act 2006 (the Charter) is a Victorian law that sets out the human rights of all people in Victoria. 

The Charter requires public authorities, such as Victorian state and local government departments and agencies, and people delivering services on behalf of government, to act consistently with the 20 human rights in the Charter. 

The Attorney-General’s intervention function under the Charter

Under section 34 of the Charter, the Attorney-General may intervene in any court or tribunal proceeding in which a question of law arises that relates to the application of the Charter or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter. 

Under section 40 of the Charter, the Victorian Equal Opportunity and Human Rights Commission (the Commission) may also intervene.

When the Attorney-General intervenes in a proceeding, the Attorney-General becomes a party to that proceeding. The Attorney-General’s role is to put forward views on the Charter and how it should be interpreted and applied.

How are Charter notifications processed?

While the Attorney-General may intervene in any proceeding, section 35 of the Charter requires a party to a Supreme Court or County Court proceeding to give notice in a prescribed form to the Attorney-General and the Commission if the proceeding raises a Charter issue.  Generally, the Victorian Government Solicitor’s Office (VGSO) is served with a copy of this notice.  In respect of proceedings that are not commenced in the Supreme Court or County Court, the parties may notify VGSO that a Charter issue is raised in the proceeding. 

To this end, a notice should be served to the Human Rights Managing Principal Solicitor(s) at VGSO, by email, post or fax:

Email: charter@vgso.vic.gov.au

Post: VGSO, Level 25, 121 Exhibition St, Melbourne, Victoria, 3000

Fax: (03) 8684 0449

As legal advisors to government, VGSO advises the Attorney-General of the notice, the issues, and relevant timeframes.

The Attorney-General then decides whether or not to intervene in the proceeding. 

What factors does the Attorney-General consider when deciding whether or not to intervene in a proceeding? 

Some of the factors the Attorney-General considers include:

  • whether the proceeding involves a new or unsettled area of law, or provides an opportunity to clarify a disputed interpretation of the law
  • whether the Charter issue raised has significant ramifications beyond the parties to the proceeding
  • whether the effect on human rights is significant
  • the Government’s policy position in relation to the Charter issue, for example where it involves a balancing of competing rights
  • the public authority involved in the proceeding
  • whether the Attorney-General proposes to present arguments that the other parties will not canvass
  • whether the Attorney-General’s involvement will provide assistance to the court or tribunal hearing the proceeding (which the parties are not likely to provide)
  • the positions of the parties, in particular whether any party has requested the Attorney-General to intervene and whether any party opposes intervention
  • the nature of the proceeding and the court or tribunal in which the proceeding is brought
  • the stage of the proceeding at which the Charter issue is raised, including whether it is raised at an interlocutory stage or at final hearing
  • whether the intervention would add unnecessary or inappropriate time, cost or delay to the proceeding
  • cost considerations
  • whether the Commission is intervening.

What are the Attorney-General’s policies regarding costs?

The Attorney-General will not ordinarily seek a costs order against a party in a proceeding in which the Attorney-General has intervened.  However, a costs order might be sought in appropriate cases, for example where the party that raised the Charter issue abandons it at a late stage in proceedings.

These Guidelines were approved on 11 November 2017.