What is the Victorian Human Rights Charter?
The Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) binds the Victorian Government and its public authorities to observe and protect 20 fundamental civil and political rights.
The Charter is an Act of the Victorian Parliament which limits the exercise of public power by government officials, the Victorian courts and the Parliament of Victoria. Through the limits it places on the exercise of power by the Government Ministers and government officials, the Charter binds the government of the day by rules that require that government to consider a person's human rights when it makes laws, acts through its officials or makes decisions which affect people.
Human rights provide a minimum guarantee of treatment that any individual may expect from their government. Human rights are entitlements that belong to all individuals regardless of age, sex or culture. The Charter recognises in law that these human rights are critical to maintaining and advancing a democratic, inclusive society that upholds the rule of law, human dignity and the freedom of its citizens.
The human rights protected by the Charter are divided into four categories: freedom, respect, equality and dignity.
- Freedom from forced work
- Freedom of movement
- Freedom of thought, conscience, religion & belief
- Freedom of expression
- Right to peaceful assembly and freedom of association
- Property rights
- Right to liberty and security of person
- Fair hearing
- Rights in criminal proceedings
- Right not to be tried and punished more than once
- Protection from retrospective criminal laws
- Right to life
- Protection of families and children
- Cultural rights, including recognition that human rights have a special importance for the Aboriginal people of Victoria
- Recognition and equality before the law
- Entitlement to participate in public life (including voting)
- Prohibition on torture and cruel, inhuman or degrading treatment
- Protection of privacy and reputation
- Humane treatment when deprived of liberty
- Appropriate treatment of children in the criminal process
How does the Charter affect Victorians?
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. The Charter complements a number of other pieces of legislation that are aimed at regulating the relationship between individuals and the State, such as the Freedom of Information Act 1982, the Equal Opportunity Act 1995 and the Privacy and Data Protection Act 2014.
Are there any limitations on the human rights protected under the Charter?
In order to allow for the proper functioning of government in a democratic society, the Charter allows for these human rights to be limited in certain circumstances. In circumstances where a government official seeks to limit a person's human rights, that official must prove that the limitation they seek is reasonable, necessary and proportionate in the those circumstances.
For example, the Charter guarantees a right to privacy however the SRO may compel an individual to provide information about their taxation affairs. The power to request this information is balanced by the strict secrecy provisions that limit the SRO from divulging this information to other parties. Therefore, in these circumstances this limitation on an individual's right to privacy is reasonable, necessary and proportionate to the need to assure the integrity of the Victorian taxation system.
What does the Charter mean for SRO customers?
Importantly, the Charter binds public authorities to act and make decisions in a manner which is compliant with human rights. The SRO is a "public authority". The SRO must act compatibly with the human rights protected by the Charter and must give proper consideration to the relevant rights when making decisions, setting policies and providing services.
This means when the SRO makes decisions that affect individuals, it must consider the rights set out in the Charter and act compatibly with those rights.
Are the circumstances where the SRO is not bound by the Charter?
There are limited circumstances in the Charter where the SRO is not obliged to comply with the protected rights, these are:
- Where a Victorian law or a Commonwealth law means that the organisation cannot comply, and
- Where the act or decision is of a private nature
What can I do if my human rights have been breached?
The Charter does not create a separate cause of action that gives rise to legal rights. An individual can only raise a breach of their Charter rights as an argument in a court or tribunal as part of an existing case. For example, if you have a taxation matter in the Victorian Civil and Administrative Tribunal and you believe that the SRO has breached your human rights, you may make the argument before that Tribunal and seek relief.
The Charter does not provide for compensation for a breach of Charter rights.
Under the Charter, the Ombudsman also has the power to investigate whether any administrative action is incompatible with a human right.