What is the Victorian Human Rights Charter?
The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) is Victoria’s principal human rights legislation. 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 protects 20 fundamental civil political and cultural rights, which are recognised as critical to maintaining and advancing a democratic, inclusive society that upholds the rule of law, human dignity and the freedom of its citizens.
The Charter does this by requiring:
- the Victorian Parliament to consider the rights engaged or limited by the Charter in the process of passing legislation
- Victorian public departments, agencies and officials to act and make decisions in a manner that is compatible with the rights protected by the Charter
- Victorian courts and tribunals to interpret and apply legislation in a manner that is consistent with the rights protected by the Charter.
The human rights protected by the Charter are divided into 4 categories: freedom, respect, equality and dignity.
Freedom
- Right to freedom from forced work.
- Right to freedom of movement.
- Right to freedom of thought, conscience, religion and belief.
- Right to freedom of expression.
- Right to peaceful assembly and freedom of association.
- Property rights.
- Right to liberty and security of person.
- Right to a fair hearing.
- Rights in criminal proceedings.
- Right not to be tried or punished more than once.
- Protection from retrospective criminal laws.
Respect
- Right to life.
- Right to protection of families and children.
- Cultural rights, including recognition that human rights have a special importance for the Aboriginal people of Victoria.
Equality
- Right to recognition and equality before the law.
- Right to take part in public life (including voting).
Dignity
- Right to protection from torture and cruel, inhuman or degrading treatment.
- Right to privacy and reputation.
- Right to humane treatment when deprived of liberty.
- Rights 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 way that is compatible with human rights. The Charter also complements several other Acts that regulate the relationship between individuals and the state such as the Freedom of Information Act 1982 (Vic), the Equal Opportunity Act 2010 (Vic) and the Privacy and Data Protection Act 2014 (Vic).
Are there any limitations on the human rights protected under the Charter?
To allow for the proper functioning of government in a democratic society, the rights protected by the Charter may be limited in certain circumstances, where this is reasonable, necessary, justified and proportionate. Therefore in circumstances where a government official seeks to limit a person's human rights, that limitation must be necessary, reasonable and justified.
For example, while the Charter protects the right to privacy, the Taxation Administration Act 1997 (Vic) (TAA) provides the Commissioner of State Revenue with the power to compel an individual to provide information about their taxation affairs. However, this power is balanced by the TAA’s strict secrecy provisions, which protects the information obtained by the SRO and places significant constraints on when information is disclosed to third parties.
Therefore, whilst the power to compel individuals to provide information may limit an individual’s right to privacy, any limitation is reasonable, necessary, justified and proportionate to enable the SRO to administer and execute the taxation laws and protect public revenue.
What does the Charter mean for State Revenue Office customers?
Importantly, the Charter binds public authorities to act and make decisions in a manner which is consistent with human rights. The SRO, as a public authority, must act compatibly with the human rights protected by the Charter and must consider the relevant rights when making decisions, setting policies and providing services.
This means that when the SRO makes decisions affecting individuals, we must consider the rights set out in the Charter and act compatibly with those rights.
Are there circumstances where the State Revenue Office 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 circumstances include where:
- a Victorian or Commonwealth law means the SRO cannot comply, and
- 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 rights under the Charter 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 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 rights protected by the Charter.
Under the Charter, the Victorian Ombudsman also has the power to investigate whether any administrative action is incompatible with a human right.
