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Service Agreement Information Kit for Funded Organisations

4.9 Victorian Charter of Human Rights and Responsibilities

Department of Health and Human Services

Who does this policy apply to?

This policy applies to individuals or organisations funded by the Department of Health and Human Services and the Department of Education and Training.

Policy purpose

To ensure organisations funded by the departments are aware of human rights which are relevant to their work, and comply with their obligations under the Charter of Human Rights and Responsibilities, particularly when performing functions of a public nature on behalf of the State or another public authority.

Legislation and /or regulation

Charter of Human Rights and Responsibilities Act 2006 (external link, opens in a new window)

Organisation requirements

The Charter of Human Rights and Responsibilities Act requires an organisation which is acting on behalf of a public authority, and any individual who is acting on behalf of a public authority:

  • to consider relevant human rights protected by the Charter of Human Rights and Responsibilities Act and act compatibly with those rights, when it makes any decision or takes any action that affects another individual's human rights under the Charter of Human Rights abd Responsibilities Act;
  • to consider human rights protected by the Charter of Human Rights and Responsibilities Act when developing and implementing policies and providing services; and
  • to only limit the human rights protected by the Charter of Human Rights and Responsibilities Act where the limitation is reasonable in the circumstances, based on the standards in a free and democratic society, including human dignity, equality and freedom.

Topics

  • What is the Charter?
  • Do the department and funded organisations have obligations under the Charter?
  • What is a public authority?
  • How do you know if you are performing functions of a public nature?
  • What obligations do I or my organisation have as a public authority?
  • Exceptions from the obligation to comply with the Charter
  • Breaches of human rights
  • List of rights protected by the Charter
  • For further information

What is the Charter?

The Charter of Human Rights and Responsibilities Act 2006 (Charter) is a Victorian Act of Parliament that protects and promotes 20 civil and political rights including but not limited to the right to vote, the right to privacy and the right to be free from discrimination. The Charter is based on the United Nations treaty, the International Covenant on Civil and Political Rights to which Australia is a signatory. The Charter is available on the Victorian Parliament website at http://www.legislation.vic.gov.au/ (external link, opens in a new window).

The Charter seeks to protect and promote basic human rights by ensuring that public powers and functions are exercised in a principled way and that public power is not misused. It complements a number of other pieces of legislation that are aimed at regulating the relationship between individuals and the State.

Do the departments and funded organisations have obligations under the Charter?

One important way the Charter protects rights is by placing obligations on public authorities. The department is a public authority, but so too are other organisations, including some of the organisations funded by the department. Outlined below are criteria to determine whether your organisation is a public authority, and the obligations of public authorities.

What is a Public Authority?

The Charter identifies three categories of organisations or individuals defined as public authorities which have obligations under the Charter:

  1. Bodies or individuals listed in the Charter including among others:
  • public servants;
  • local councils;
  • Victoria Police; and
  • organisations listed in regulations made under the Charter.
  1. Entities established under legislation that perform functions of a public nature such as:
  • public hospitals;
  • cemetery trusts ;
  • Child Safety Commissioner; and
  • Infertility Treatment Authority.
  1. Entities that exercise functions of a public nature on behalf of the State or another public authority, whether under contract or otherwise.

A body or individual which is a public authority must comply with the Charter in carrying out functions of a public nature. Organisations or individuals who perform a number of functions may only have obligations under the Charter with respect to those functions which are of a public nature. However, as a matter of best practice, they may choose to comply with the Charter in respect of all activities that affect human rights.

How do you know if you are performing functions of a public nature?

It may not always be clear whether organisations or individuals that perform functions of a public nature constitute a public authority. The following questions may assist in clarifying whether their functions are of a public nature:

  1. Does legislation give the organisation or individual that function? For example, regulations impose certain obligations on Breast Screen Victoria Inc in relation to keeping a register.
  2. Is the function one that is usually connected to or generally identified with functions of government? For example, the provision of public hospital services.
  3. Is the organisation or individual funded by a public authority to perform that function? Examples include out of home care services for children, community-based child and family services and disability services.
  4. Is the function one of a regulatory nature, such as regulating a profession?
  5. Is the organisation or individual performing the functions on behalf of the State, a department, or another public authority?

In many cases it is clear when a function is being performed for the State or another public authority. Examples include provision of public hospital services and out of home care services for children. Often it will depend on the circumstances of each case. However, the Charter specifies that:

  • the fact that an organisation is publicly funded to perform a function does not necessarily mean that the organisation is performing the function on behalf of the State, and
  • an organisation does not have to be an agent of the State to be acting on behalf of the State.

These factors are not exhaustive or conclusive. Some of the factors may be present when an organisation or individual is performing a function that is not of a public nature.

If an organisation or individual is unclear as to whether they are a public authority for the purposes of the Charter, they may choose to seek further legal advice or act compatibly with the Charter in the exercise of their functions as a matter of best practice.

What obligations do you or your organisation have as a public authority?

If an organisation or individual which is a public authority acts or makes any decision that affects another individual's rights as set out in the Charter, it must consider the relevant human rights in the Charter and act compatibly with those rights. This means that public authorities must consider the rights protected by the Charter when they make decisions, set policies and provide services.

There are steps that organisations and individuals can follow to ensure that they comply with these obligations including:

  • thinking about where human rights are relevant to their activities and decisions that they make;
  • where rights are relevant to the decision or action, consider whether or not the decision or action is limiting a human right in the Charter; and
  • being able to demonstrate that any limitation on a human right is reasonable and to consider whether the limitation is lawful, necessary, and proportionate in the circumstances.

It is important to understand that the Charter permits the reasonable limitation of human rights in particular circumstances.

Entities will make decisions and apply procedures that impact on an individual's human rights. This action is still compatible with the Charter as long as it can be demonstrated that the limitation on the right is reasonable.

A ‘reasonable’ limitation is determined based on the standards in a free and democratic society including human dignity, equality and freedom and taking into account:

  • the nature of the right;
  • the importance and purpose of the limitation;
  • the nature and extent of the limitation;
  • the relationship between the limitation and its purpose; and
  • whether there is any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Exceptions from the obligation to comply with the Charter

A public authority is not obliged to comply with the Charter where:

  • a Victorian law or a Commonwealth law means that the public authority cannot comply;
  • the act or decision is of a private nature; and
  • compliance with the Charter would prevent a religious body (including the public authority itself if it is a religious body) from conforming with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

Breaches of human rights

An individual cannot take legal action if his or her sole reason is based on a breach of an obligation under the Charter. However, the Charter allows a person to raise a human rights argument in a court or tribunal in a case involving a claim that a decision or act of a public authority is unlawful on non-Charter grounds. The Ombudsman also has the power to investigate whether any administrative action is incompatible with a human right set out in the Charter.

The Charter does not provide for compensation for a breach of Charter rights.

List of human rights protected by the Charter

The Charter protects the following human rights:

  • recognition as a person and equality before the law, and to protection against discrimination;
  • right to life;
  • protection from torture and cruel, inhuman and degrading treatment, and not to be subject to medical or scientific experimentation or treatment without consent;
  • freedom from slavery or forced work;
  • freedom of movement;
  • right to not have one’s privacy, family, home or correspondence arbitrarily or unlawfully interfered with, and one’s reputation unlawfully attacked;
  • freedom of thought, conscience, religion and belief;
  • freedom of expression;
  • peaceful assembly and freedom of association;
  • protection of families and children by society and the State;
  • right to take part in public life;
  • practice and enjoy culture, religion and language;
  • to not be deprived of property other than in accordance with law;
  • liberty and security of person;
  • humane treatment when deprived of liberty;
  • detained child to be segregated from detained adults;
  • fair hearing;
  • presumption of innocence when charged with a criminal offence;
  • not to be tried or punished more than once for an offence already been finally convicted or acquitted in accordance with the law; and
  • with respect to the operation of certain retrospective criminal laws.

For further information

Kirsty McIntyre
General Counsel & Chief Legal Officer
Department of Health & Human Services
Telephone: (03) 9096 1557
Email: kirsty.mcintyre@dhhs.vic.gov.au

Department of Education and Training

Topics

  • What is the Charter?
  • Does the Department of Education and Training (DET) and funded organisations have obligations under the Charter?
  • What is a public authority?
  • How do you know if you are performing functions of a public nature?
  • What obligations do I or my organisation have as a public authority?
  • Exceptions from the obligation to comply with the Charter
  • Breaches of human rights
  • List of rights protected by the Charter
  • For further information

What is the Charter?

The Charter of Human Rights and Responsibilities Act 2006 (Charter) is a Victorian Act of Parliament that protects and promotes 20 civil and political rights including but not limited to the right to vote, the right to privacy and the right to be free from discrimination. The Charter is based on the United Nations treaty, the International Covenant on Civil and Political Rights to which Australia is a signatory. The Charter is available on the Victorian Parliament website at http://www.legislation.vic.gov.au/ (external link, opens in a new window).

The Charter seeks to protect and promote basic human rights by ensuring that public powers and functions are exercised in a principled way and that public power is not misused. It complements a number of other pieces of legislation that are aimed at regulating the relationship between individuals and the State.

Does the Department of Education and Training (DET) and funded organisations have obligations under the Charter?

One important way the Charter protects rights is by placing obligations on public authorities. DET is a public authority, as are some of the organisations funded by DET. Outlined below are criteria to determine whether your organisation is a public authority, and the obligations of public authorities.

What is a Public Authority?

The Charter identifies three categories of organisations or individuals defined as public authorities which have obligations under the Charter:

1. Bodies or individuals listed in the Charter including among others:

  • public servants;
  • local councils;
  • Victoria Police; and
  • organisations listed in regulations made under the Charter.

2. Entities established under legislation that perform functions of a public nature such as:

  • public hospitals;
  • cemetery trusts ;
  • Commission for Children and Young People; and
  • Victorian Assisted Reproductive Treatment Authority.

3. Entities that exercise functions of a public nature on behalf of the State or another public authority, whether under contract or otherwise.

A body or individual which is a public authority must comply with the Charter in carrying out functions of a public nature. Organisations or individuals who perform a number of functions may only have obligations under the Charter with respect to those functions which are of a public nature. However, as a matter of best practice, they may choose to comply with the Charter in respect of all activities that affect human rights.

How do you know if you are performing functions of a public nature?

It may not always be clear whether organisations or individuals that perform functions of a public nature constitute a public authority. The following questions may assist in clarifying whether their functions are of a public nature:

  • Does legislation give the organisation or individual that function? For example, children’s services operating under the Children’s Services Act 1996.
  • Is the function one that is usually connected to or generally identified with functions of government? For example, the provision of education services.
  • Is the organisation or individual funded by a public authority to perform that function? Examples include parenting services, supported playgroups and kindergartens.
  • Is the function one of a regulatory nature, such as regulating a profession?
  • Is the organisation or individual performing the functions on behalf of the State, a department, or another public authority?

In many cases it is clear when a function is being performed for the State or another public authority. Often it will depend on the circumstances of each case. However, the Charter specifies that:

  • the fact that an organisation is publicly funded to perform a function does not necessarily mean that the organisation is performing the function on behalf of the State; and
  • an organisation does not have to be an agent of the State to be acting on behalf of the State.

These factors are not exhaustive or conclusive. Some of the factors may be present when an organisation or individual is performing a function that is not of a public nature.

If an organisation or individual is unclear as to whether they are a public authority for the purposes of the Charter, they may choose to seek further legal advice or act compatibly with the Charter in the exercise of their functions as a matter of best practice.

What obligations do you or your organisation have as a public authority?

If an organisation or individual which is a public authority acts or makes any decision that affects another individual's rights as set out in the Charter, it must consider the relevant human rights in the Charter and act compatibly with those rights. This means that public authorities must consider the rights protected by the Charter when they make decisions, set policies and provide services.

There are steps that organisations and individuals can follow to ensure that they comply with these obligations including:

  • thinking about where human rights are relevant to their activities and decisions that they make;
  • where rights are engaged (relevant to the decision or action), consider whether or not the decision or action is limiting a human right in the Charter; and
  • being able to demonstrate that any limitation on a human right is reasonable and to consider whether the limitation is lawful, necessary, and proportionate in the circumstances.

It is important to understand that the Charter permits the reasonable limitation of human rights in particular circumstances.

Entities will make decisions and apply procedures that impact on an individual's human rights. This action is still compatible with the Charter as long as it can be demonstrated that the limitation on the right is reasonable.

A ‘reasonable’ limitation is determined based on the standards in a free and democratic society including human dignity, equality and freedom and taking into account:

  • the nature of the right;
  • the importance and purpose of the limitation;
  • the nature and extent of the limitation;
  • the relationship between the limitation and its purpose; and
  • whether there is any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Exceptions from the obligation to comply with the Charter

A public authority is not obliged to comply with the Charter where:

  • a Victorian law or a Commonwealth law means that the public authority cannot comply;
  • the act or decision is of a private nature; and
  • compliance with the Charter would prevent a religious body (including the public authority itself if it is a religious body) from conforming with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

Breaches of human rights

An individual cannot take legal action if his or her sole reason is based on a breach of an obligation under the Charter. However, the Charter allows a person to raise a human rights argument in a court or tribunal in a case involving a claim that a decision or act of a public authority is unlawful on non-Charter grounds. The Ombudsman also has the power to investigate whether any administrative action is incompatible with a human right set out in the Charter.

The Charter does not provide for compensation for a breach of Charter rights.

List of human rights protected by the Charter

The Charter protects the following human rights:

  • recognition as a person and equality before the law, and to protection against discrimination;
  • right to life;
  • protection from torture and cruel, inhuman and degrading treatment, and not to be subject to medical or scientific experimentation or treatment without consent;
  • freedom from slavery or forced work;
  • freedom of movement;
  • right to not have one’s privacy, family, home or correspondence arbitrarily or unlawfully interfered with, and one’s reputation unlawfully attacked;
  • freedom of thought, conscience, religion and belief;
  • freedom of expression;
  • peaceful assembly and freedom of association;
  • protection of families and children by society and the State;
  • right to take part in public life;
  • practice and enjoy culture, religion and language;
  • to not be deprived of property other than in accordance with law;
  • liberty and security of person;
  • humane treatment when deprived of liberty;
  • detained child to be segregated from detained adults;
  • fair hearing;
  • presumption of innocence when charged with a criminal offence;
  • not to be tried or punished more than once for an offence already been finally convicted or acquitted in accordance with the law; and
  • with respect to the operation of certain retrospective criminal laws.

For further information