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Victorian Government Website (Victoria, the Place to Be)
Department of Human Services, Victoria, Australia
Service Agreement Information Kit for Funded Organisations

5.9 Victorian Charter of Human Rights and Responsibilities

Topics

  • What is the Charter?
  • How does the Charter affect the Department and funded organisations?
  • What is a public authority?
  • How do you know if you are a public authority?
  • What are the obligations if my organisation is 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 is a Victorian Act of Parliament that protects and promotes 20 civil and political rights. Examples of rights included in the Charter are the right to vote, the right to privacy and the right to be free from discrimination. It is based on the United Nations treaty, the International Covenant on Civil and Political Rights to which Australia is a signatory. The Charter is on the Victorian Parliament website at http://www.legislation.vic.gov.au/.

The aim of the Charter is to protect and promote 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.

How does the Charter affect the department and funded organisations?

One important way the Charter protects rights is by placing obligations on public authorities. The Department of Human Services is a public authority, but so too are other organisations, including some of the organisations funded by the department. How to decide if your organisation is a public authority and the obligations of public authorities are outlined below.

What is a Public Authority?

There are three kinds of organisations that the Charter says are public authorities and therefore bound by the rights in the Charter:

1. Bodies listed in the Charter itself. These include:

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

2. Organisations established under legislation that perform public functions. Examples of these are:

  • public hospitals
  • cemetery trusts
  • Child Safety Commissioner, and 
  • Infertility Treatment Authority.

3. Organisations that exercise public functions on behalf of the State or on behalf of another public authority.

Organisations that come within this third category are only public authorities depending on their functions.  It will be a 'public authority' if it meets two criteria:

  • the function performed by the organisation is a function of a public nature, and 
  • the organisation must be exercising the function on behalf of the State or a public authority because of a contract or otherwise.

When an organisation is performing functions that meet this test, it must comply with the Charter in carrying out those functions. Organisations that perform a number of functions may satisfy this test only when performing some of its functions. However, as a matter of best practice, the organisation may choose to comply with the Charter in respect of all activities that affect human rights.

How do you know if you are a Public Authority?

For organisations in the last category, it may not always be clear whether they fall into the definition of a public authority or not. The following questions may assist organisations in clarifying whether they are public authorities:

1. Is the organisation performing functions of a public nature?

Some factors that can be considered include:

  • Does legislation give the organisation that function?  For example, regulations impose certain obligations on Breast Screen Victoria Inc in relation to keeping a register.
  • Is the function one that is usually identified with functions of government? For example, the provision of public hospital services.
  • Is the organisation funded by DHS to perform that function? Examples include out of home care services for children, community-based child and family services and disability services.
  • Is the function one of a regulatory nature, such as regulating a profession?


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

2. Is the organisation performing the functions on behalf of the State, in this case DHS, 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.

If an organisation is unclear, they may choose to seek further legal advice or comply with the Charter in the exercise of their functions as a matter of best practice.

What are the obligations if my organisation is a public authority?

If an organisation is a public authority it must act compatibly with the human rights contained in the Charter and give proper consideration to relevant rights when making decisions. This means that public authorities must consider the rights protected by the Charter when they make decisions, set policies and provide services. When the organisation acts or makes any decision that affects an individual, the organisation must consider the rights set out in the Charter and act compatibly with those rights.

There are steps that organisations can follow to ensure that they meet these obligations.  Organisations should:

  • think about where human rights are relevant to their activities and decisions that they make;
  • where rights are engaged (relevant to the decision or action) they need to consider whether or not the decision or action is limiting a right in the Charter, and
  • if a right is limited, the organisation needs to be able to demonstrate that the limitation is reasonable. The organisation will need to consider whether the limitation is lawful, necessary, and proportionate.   

It is important to understand that the Charter allows for all of the rights to be reasonably limited. Just because a human right is engaged by a decision or action does not mean that the decision or action is incompatible with the Charter.

Organisations 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.

Exceptions from the obligation to comply with the Charter

A public authority is not obliged to comply with the Charter in three cases:

  • a Victorian law or a Commonwealth law means that the organisation cannot comply
  • the act or decision is of a private nature, and 
  • the public authority is also a religious body and compliance with the Charter would prevent it from conforming with the religious doctrines, beliefs or principles of the public authority.

Breaches of human rights

An individual cannot take legal action if his or her only reason is a breach of Charter rights. However, the Charter allows a person to raise a human rights argument in a court or tribunal in an existing case. Under the Charter, the Ombudsman also has the power to investigate whether any administrative action is incompatible with a human right.

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

List of rights protected by the Charter

Rights protected by the Charter are:

  • right to be recognised and equal before the law
  • right to life
  • right to be protected from torture and cruel, inhuman and degrading treatment, and not to be subject to medical or scientific experimentation or treatment without consent
  • right not to be held in slavery or made to perform forced work
  • right to freedom of movement
  • right to privacy and reputation
  • right to freedom of thought, conscience, religion and belief
  • right to freedom of expression
  • right of peaceful assembly and freedom of association
  • right of families and children to protection by society and the State
  • right to take part in public life
  • right of a person to practise and enjoy his or her culture, religion and language
  • right not to be deprived of property
  • right to liberty and security of person
  • right of a person deprived of liberty to be treated humanely
  • right of a detained child to be segregated from detained adults
  • right to a fair hearing
  • right of a person charged with a criminal offence to be presumed innocent
  • right not to be tried or punished more than once, and
  • rights concerning retrospective criminal laws.

For further information

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