Charter of Human Rights and Responsibilities Act 2006 (Victoria)

Mechanically, the Charter of Human Rights and Responsibilities Act 2006 (the Charter) does four things.

First, it sets out a catalogue of civil and political rights that "Parliament specifically seeks to protect and promote" (s 1(2)(a); Part 2). Those rights include recognition before the law, the right to life, freedom from torture, freedom of movement, privacy, freedom of thought and religion, freedom of expression, peaceful assembly and association, protections for families and children, participation in public life, cultural rights (including special cultural rights for Aboriginal persons), property rights, and a range of criminal‑process protections (s 7-27).

Second, it creates statutory duties and procedural obligations that operate inside Victoria's legal and administrative systems. Two principal duties are imposed: an interpretive duty on courts and decision makers, requiring statutory provisions to be interpreted compatibly with human rights "so far as it is possible to do so consistently with their purpose" (s 32(1)); and a direct obligation on public authorities not to act in a way incompatible with a human right, and to give proper consideration to relevant human rights when making decisions (s 38(1)). The Charter also requires members of Parliament who introduce Bills to cause a statement of compatibility to be prepared and laid before the House before the second reading speech (s 28(1)-(2)), and it establishes processes for referral of Charter questions to the Supreme Court (s 33), intervention by the Attorney‑General and the Victorian Equal Opportunity and Human Rights Commission (the Commission) (ss 34, 40), and for the Supreme Court to make a declaration that a statutory provision cannot be interpreted consistently with a human right (a declaration of inconsistent interpretation) (s 36).

Version No. 015

Charter of Human Rights and Responsibilities Act 2006

No. 43 of 2006

Version incorporating amendments as at
1 June 2022

table of provisions

Section Page

Part 1—Preliminary 2

1 Purpose and citation 2

2 Commencement 3

3 Definitions 3

4 What is a public authority? 5

5 Human rights in this Charter in addition to other rights and freedoms 9

6 Application 9

Part 2—Human rights 11

7 Human rights—what they are and when they may be limited 11

8 Recognition and equality before the law 11

9 Right to life 12

10 Protection from torture and cruel, inhuman or degrading treatment 12

11 Freedom from forced work 12

12 Freedom of movement 13

13 Privacy and reputation 13

14 Freedom of thought, conscience, religion and belief 13

15 Freedom of expression 14

16 Peaceful assembly and freedom of association 14

17 Protection of families and children 14

18 Taking part in public life 15

19 Cultural rights 15

20 Property rights 16

21 Right to liberty and security of person 16

22 Humane treatment when deprived of liberty 17

23 Children in the criminal process 17

24 Fair hearing 18

25 Rights in criminal proceedings 18

26 Right not to be tried or punished more than once 20

27 Retrospective criminal laws 20

Part 3—Application of human rights in Victoria 21

Division 1—Scrutiny of new legislation 21

28 Statements of compatibility 21

29 No effect on Victorian law 22

30 Scrutiny of Acts and Regulations Committee 22

Division 2—Override declaration 22

31 Override by Parliament 22

Division 3—Interpretation of laws 24

32 Interpretation 24

33 Referral to Supreme Court 24

34 Attorney-General's right to intervene 25

35 Notice to Attorney-General and Commission 25

36 Declaration of inconsistent interpretation 26

37 Action on declaration of inconsistent interpretation 28

Division 4—Obligations on public authorities 28

38 Conduct of public authorities 28

39 Legal proceedings 29

Part 4—Victorian Equal Opportunity and Human Rights Commission 31

40 Intervention by Commission 31

41 Functions of the Commission 31

42 Powers 32

43 Reports to be laid before Parliament 32

Part 5—General 34

44 Review of Charter after 4 years of operation 34

45 Review of Charter after 8 years of operation 35

46 Regulations 35

48 Savings provision 37

49 Transitional provisions 37

Endnotes 40

1 General information 40

2 Table of Amendments 42

3 Explanatory details 44

Version No. 015

Charter of Human Rights and Responsibilities Act 2006

No. 43 of 2006

Version incorporating amendments as at
1 June 2022

Preamble

On behalf of the people of Victoria the Parliament enacts this Charter, recognising that all people are born free and equal in dignity and rights.

This Charter is founded on the following principles—

• human rights are essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom;

• human rights belong to all people without discrimination, and the diversity of the people of Victoria enhances our community;

• human rights come with responsibilities and must be exercised in a way that respects the human rights of others;

• human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia's first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.

The Parliament of Victoria therefore enacts:

Part 1—Preliminary

1 Purpose and citation

(1) This Act may be referred to as the Charter of Human Rights and Responsibilities and is so referred to in this Act.

(2) The main purpose of this Charter is to protect and promote human rights by—

(a) setting out the human rights that Parliament specifically seeks to protect and promote; and

(b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and

(d) requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and

(e) conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.

(3) In addition, this Charter—

(a) enables Parliament, in exceptional circumstances, to override the application of the Charter to a statutory provision; and

(b) renames the Equal Opportunity Commission as the Victorian Equal Opportunity and Human Rights Commission and confers additional functions on it; and

2 Commencement

(1) This Charter (except Divisions 3 and 4 of Part 3) comes into operation on 1 January 2007.

(2) Divisions 3 and 4 of Part 3 come into operation on 1 January 2008.

3 Definitions

(1) In this Charter—

Aboriginal means a person belonging to the indigenous peoples of Australia, including the indigenous inhabitants of the Torres Strait Islands, and any descendants of those peoples;

act includes a failure to act and a proposal to act;

Charter means the Charter of Human Rights and Responsibilities;

child means a person under 18 years of age;

S. 3(1) def. of Commission amended by No. 16/2010 s. 209(Sch. item 1.1).

Commission means the Victorian Equal Opportunity and Human Rights Commission under the Equal Opportunity Act 2010;

S. 3(1) def. of court amended by No. 77/2008 s. 129(Sch. 2 item 5).

court means the Supreme Court, the County Court, the Magistrates' Court, the Children's Court or the Coroners Court;

declaration of inconsistent interpretation means a declaration made by the Supreme Court under section 36(2);

S. 3(1) def. of discrimination amended by No. 16/2010 s. 209(Sch. items 1.2, 1.3) (as amended by No. 26/2011 s. 34(Sch. item 10.1)).

discrimination, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act;

Note

Section 6 of the Equal Opportunity Act 2010 lists a number of attributes in respect of which discrimination is prohibited, including age; disability; political belief or activity; race; religious belief or activity; sex; and sexual orientation.

human rights means the civil and political rights set out in Part 2;

interpreter means—

(a) an interpreter accredited by a prescribed body; or

(b) if an accredited interpreter is not readily available, a competent interpreter—

and relates only to the oral rendering of the meaning of the spoken word or other form of communication from one language or form of communication into another language or form of communication;

override declaration means a declaration made by Parliament under section 31;

Parliamentary Committee has the same meaning as Joint House Committee has in the Parliamentary Committees Act 2003;

person means a human being;

public authority has the meaning given in section 4;

statutory provision means an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument;

S. 3(1) def. of trial inserted by No. 68/2009 s. 97(Sch. item 18.1).

trial, in relation to the Magistrates' Court or the Children's Court, means hearing of a charge;

S. 3(1) def. of Victoria Police substituted by No. 37/2014 s. 10(Sch. item 15).

Victoria Police has the same meaning as in the Victoria Police Act 2013.

(2) In this Charter—

(a) a reference to a function includes a reference to a power, authority and duty; and

(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

4 What is a public authority?

(1) For the purposes of this Charter a public authority is—

(a) a public official within the meaning of the Public Administration Act 2004; or

Note to s. 4(1)(a) amended by No. 6/2014 s. 14.

Note

A public official under the Public Administration Act 2004 includes employees of the public service, including the Head of a government department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Victorian Public Sector Commissioner. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices.

(b) an entity established by a statutory provision that has functions of a public nature; or

Notes

1 In section 38 of the Interpretation of Legislation Act 1984 entity is defined to include a person (both a human being and a legal person) and an unincorporated body.

2 See subsection (2) in relation to "functions of a public nature".

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise); or

Example

A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the State it is not a public authority for the purposes of this Charter.

Note

See subsections (4) and (5) in relation to "on behalf of the State or a public authority".

(d) Victoria Police; or

S. 4(1)(e) amended by No. 9/2020 s. 390(Sch. 1 item 14).

(e) a Council within the meaning of the Local Government Act 2020 and Councillors and members of Council staff within the meaning of that Act; or

(f) a Minister; or

(g) members of a Parliamentary Committee when the Committee is acting in an administrative capacity; or

(h) an entity declared by the regulations to be a public authority for the purposes of this Charter—

but does not include—

(i) Parliament or a person exercising functions in connection with proceedings in Parliament; or

(j) a court or tribunal except when it is acting in an administrative capacity; or

Note

Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

(k) an entity declared by the regulations not to be a public authority for the purposes of this Charter.

(2) In determining if a function is of a public nature the factors that may be taken into account include—

(a) that the function is conferred on the entity by or under a statutory provision;

Example to s. 4(2)(a) amended by No. 6/2010 s. 203(1)
(Sch. 6 item 5) (as amended by No. 45/2010 s. 22).

Example

The Transport (Compliance and Miscellaneous) Act 1983 confers powers of arrest on an authorised officer under that Act.

(b) that the function is connected to or generally identified with functions of government;

Example

Under the Corrections Act 1986 a private company may have the function of providing correctional services (such as managing a prison), which is a function generally identified as being a function of government.

(d) that the entity is publicly funded to perform the function;

(e) that the entity that performs the function is a company (within the meaning of the Corporations Act) all of the shares in which are held by or on behalf of the State.

Example

All the shares in the companies responsible for the retail supply of water within Melbourne are held by or on behalf of the State.

(3) To avoid doubt—

(a) the factors listed in subsection (2) are not exhaustive of the factors that may be taken into account in determining if a function is of a public nature; and

(b) the fact that one or more of the factors set out in subsection (2) are present in relation to a function does not necessarily result in the function being of a public nature.

(4) For the purposes of subsection (1)(c), an entity may be acting on behalf of the State or a public authority even if there is no agency relationship between the entity and the State or public authority.

(5) For the purposes of subsection (1)(c), the fact that an entity is publicly funded to perform a function does not necessarily mean that it is exercising that function on behalf of the State or a public authority.

5 Human rights in this Charter in addition to other rights and freedoms

A right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.

6 Application

(1) Only persons have human rights. All persons have the human rights set out in Part 2.

Note

Corporations do not have human rights.

(2) This Charter applies to—

(a) the Parliament, to the extent that the Parliament has functions under Divisions 1 and 2 of Part 3; and

(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3; and

(3) Subsection (2) does not take away from or limit—

(a) any other function conferred by this Charter on an entity specified in subsection (2); or

(b) any function conferred on any other entity by this Charter.

(4) This Charter binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Part 2—Human rights

7 Human rights—what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

8 Recognition and equality before the law

(1) Every person has the right to recognition as a person before the law.

S. 8(2) amended by No. 20/2022 s. 9.

(2) Every person has the right to enjoy their human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

9 Right to life

Every person has the right to life and has the right not to be arbitrarily deprived of life.

10 Protection from torture and cruel, inhuman or degrading treatment

A person must not be—

(a) subjected to torture; or

(b) treated or punished in a cruel, inhuman or degrading way; or

S. 10(c) amended by No. 20/2022 s. 10.

(c) subjected to medical or scientific experimentation or treatment without that person's full, free and informed consent.

11 Freedom from forced work

(1) A person must not be held in slavery or servitude.

(2) A person must not be made to perform forced or compulsory labour.

(3) For the purposes of subsection (2) forced or compulsory labour does not include—

(a) work or service normally required of a person who is under detention because of a lawful court order or who, under a lawful court order, has been conditionally released from detention or ordered to perform work in the community; or

(b) work or service required because of an emergency threatening the Victorian community or a part of the Victorian community; or

(4) In this section court order includes an order made by a court of another jurisdiction.

12 Freedom of movement

Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

13 Privacy and reputation

A person has the right—

S. 13(a) amended by No. 20/2022 s. 11.

(a) not to have that person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

S. 13(b) amended by No. 20/2022 s. 11.

(b) not to have that person's reputation unlawfully attacked.

14 Freedom of thought, conscience, religion and belief

(1) Every person has the right to freedom of thought, conscience, religion and belief, including—

S. 14(1)(a) amended by No. 20/2022 s. 12.

(a) the freedom to have or to adopt a religion or belief of that person's choice; and

S. 14(1)(b) amended by No. 20/2022 s. 12.

(b) the freedom to demonstrate that person's religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

S. 14(2) amended by No. 20/2022 s. 12.

(2) A person must not be coerced or restrained in a way that limits that person's freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

15 Freedom of expression

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether—

(a) orally; or

(b) in writing; or

(d) by way of art; or

S. 15(2)(e) amended by No. 20/2022 s. 13.

(e) in another medium chosen by that person.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

16 Peaceful assembly and freedom of association

(1) Every person has the right of peaceful assembly.

(2) Every person has the right to freedom of association with others, including the right to form and join trade unions.

17 Protection of families and children

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

S. 17(2) amended by No. 20/2022 s. 14.

(2) Every child has the right, without discrimination, to such protection as is in the child's best interests and is needed by the child by reason of being a child.

18 Taking part in public life

(1) Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.

(2) Every eligible person has the right, and is to have the opportunity, without discrimination—

(a) to vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors; and

(b) to have access, on general terms of equality, to the Victorian public service and public office.

19 Cultural rights

S. 19(1) amended by No. 20/2022 s. 15.

(1) All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, to declare and practise their religion and to use their language.

(2) Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community—

(a) to enjoy their identity and culture; and

(b) to maintain and use their language; and

(d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

S. 20 amended by No. 20/2022 s. 16.

20 Property rights

A person must not be deprived of that person's property other than in accordance with law.

21 Right to liberty and security of person

(1) Every person has the right to liberty and security.

(2) A person must not be subjected to arbitrary arrest or detention.

S. 21(3) amended by No. 20/2022 s. 17(a).

(3) A person must not be deprived of that person's liberty except on grounds, and in accordance with procedures, established by law.

S. 21(4) amended by No. 20/2022 s. 17(b).

(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against that person.

(5) A person who is arrested or detained on a criminal charge—

(a) must be promptly brought before a court; and

(b) has the right to be brought to trial without unreasonable delay; and

S. 21(6) amended by Nos 68/2009 s. 97(Sch. item 18.2), 20/2022 s. 17(c).

(6) A person awaiting trial must not be automatically detained in custody, but that person's release may be subject to guarantees to attend—

(a) for trial; and

(b) at any other stage of the judicial proceeding; and

S. 21(7) amended by No. 20/2022 s. 17(c).

(7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of that person's detention, and the court must—

(a) make a decision without delay; and

(b) order the release of the person if it finds that the detention is unlawful.

S. 21(8) amended by No. 20/2022 s. 17(c).

(8) A person must not be imprisoned only because of that person's inability to perform a contractual obligation.

22 Humane treatment when deprived of liberty

(1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

(2) An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.

(3) An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.

23 Children in the criminal process

(1) An accused child who is detained or a child detained without charge must be segregated from all detained adults.

(2) An accused child must be brought to trial as quickly as possible.

S. 23(3) amended by No. 20/2022 s. 18.

(3) A child who has been convicted of an offence must be treated in a way that is appropriate for that child's age.

24 Fair hearing

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

(2) Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.

Note to s. 24(2) substituted by No. 58/2013 s. 37.

Note

See Part 5 of the Open Courts Act 2013.

(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

25 Rights in criminal proceedings

(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—

S. 25(2)(a) amended by No. 20/2022 s. 19(1)(a).

(a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that that person speaks or understands; and

S. 25(2)(b) amended by No. 20/2022 s. 19(1)(b).

(b) to have adequate time and facilities to prepare their defence and to communicate with a lawyer or advisor chosen by that person; and

S. 25(2)(d) amended by No. 20/2022 s. 19(1)(c).

(d) to be tried in person, and to defend themselves personally or through legal assistance chosen by that person or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and

S. 25(2)(e) amended by No. 20/2022 s. 19(1)(a).

(e) to be told, if that person does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and

S. 25(2)(f) amended by No. 20/2022 s. 19(1)(d).

(f) to have legal aid provided if the interests of justice require it, without any costs payable by that person if the person meets the eligibility criteria set out in the Legal Aid Act 1978; and

S. 25(2)(g) amended by No. 20/2022 s. 19(1)(e).

(g) to examine, or have examined, witnesses against that person, unless otherwise provided for by law; and

S. 25(2)(h) amended by No. 20/2022 s. 19(1)(f).

(h) to obtain the attendance and examination of witnesses on that person's behalf under the same conditions as witnesses for the prosecution; and

S. 25(2)(i) amended by No. 20/2022 s. 19(1)(a).

(i) to have the free assistance of an interpreter if that person cannot understand or speak English; and

S. 25(2)(j) amended by No. 20/2022 s. 19(1)(a).

(j) to have the free assistance of assistants and specialised communication tools and technology if that person has communication or speech difficulties that require such assistance; and

S. 25(2)(k) amended by No. 20/2022 s. 19(1)(g).

(k) not to be compelled to testify against themselves or to confess guilt.

S. 25(3) amended by No. 20/2022 s. 19(2).

(3) A child charged with a criminal offence has the right to a procedure that takes account of that child's age and the desirability of promoting the child's rehabilitation.

(4) Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.

S. 26 amended by No. 20/2022 s. 20.

26 Right not to be tried or punished more than once

A person must not be tried or punished more than once for an offence in respect of which that person has already been finally convicted or acquitted in accordance with law.

27 Retrospective criminal laws

(1) A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.

(2) A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.

(3) If a penalty for an offence is reduced after a person committed the offence but before the person is sentenced for that offence, that person is eligible for the reduced penalty.

(4) Nothing in this section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done.

Part 3—Application of human rights in Victoria

Division 1—Scrutiny of new legislation

28 Statements of compatibility

(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

S. 28(2) amended by No. 20/2022 s. 21.

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on the member's behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving the member's second reading speech on the Bill.

Note

The obligation in subsections (1) and (2) applies to Ministers introducing government Bills and members of Parliament introducing non-government Bills.

(3) A statement of compatibility must state—

(a) whether, in the member's opinion, the Bill is compatible with human rights and, if so, how it is compatible; and

(b) if, in the member's opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

(4) A statement of compatibility made under this section is not binding on any court or tribunal.

29 No effect on Victorian law

A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

30 Scrutiny of Acts and Regulations Committee

The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

Note

The Scrutiny of Acts and Regulations Committee must also review all statutory rules and report to Parliament if it considers the statutory rule to be incompatible with human rights: see section 21 of the Subordinate Legislation Act 1994.

Division 2—Override declaration

31 Override by Parliament

(1) Parliament may expressly declare in an Act that that Act or a provision of that Act or another Act or a provision of another Act has effect despite being incompatible with one or more of the human rights or despite anything else set out in this Charter.

(2) If an override declaration is made in respect of an Act or a provision of an Act that declaration must be taken to extend to any subordinate instrument made under or for the purpose of that Act or provision.

S. 31(3) amended by No. 20/2022 s. 22.

(3) A member of Parliament who introduces a Bill containing an override declaration, or another member acting on the member's behalf, must make a statement to the Legislative Council or the Legislative Assembly, as the case requires, explaining the exceptional circumstances that justify the inclusion of the override declaration.

(4) It is the intention of Parliament that an override declaration will only be made in exceptional circumstances.

(5) A statement under subsection (3) must be made—

(a) during the second reading speech for the Bill that contains the override declaration; or

(b) after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or

(c) with the leave of the Legislative Council or the Legislative Assembly, as the case requires, at any time before the third reading of the Bill.

(6) If an override declaration is made in respect of a statutory provision, then to the extent of the declaration this Charter has no application to that provision.

Note

As the Charter has no application to a statutory provision for which an override declaration has been made, the Supreme Court cannot make a declaration of inconsistent interpretation in respect of that statutory provision. Also, the requirement under section 32 to interpret that provision in a way that is compatible with human rights does not apply.

(7) A provision of an Act containing an override declaration expires on the 5th anniversary of the day on which that provision comes into operation or on such earlier date as may be specified in that Act.

(8) Parliament may, at any time, re-enact an override declaration, and the provisions of this section apply to any re-enacted declaration.

(9) A failure to comply with subsection (3) or (5) in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

Division 3—Interpretation of laws

32 Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3) This section does not affect the validity of—

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

33 Referral to Supreme Court

(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if—

(a) a party has made an application for referral; and

(b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

(2) If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not—

(a) make a determination to which the question is relevant while the referral is pending; or

(b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.

S. 33(3) amended by No. 68/2009 s. 97(Sch. item 18.3).

(3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court or by the County Court, the referral is to be made to the Court of Appeal.

(4) Despite anything contained in any other Act, if a question arises of a kind referred to in subsection (1), that question may only be referred to the Supreme Court in accordance with this section.

34 Attorney-General's right to intervene

(1) The Attorney-General may intervene in, and may be joined as a party to, any proceeding before any court or tribunal in which a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter.

(2) If the Attorney-General intervenes in a proceeding under this section, then, for the purpose of the institution and prosecution of an appeal from an order made in that proceeding, the Attorney-General may be taken to be a party to the proceeding.

35 Notice to Attorney-General and Commission

(1) A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if—

(a) in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or

(b) in any case, a question is referred to the Supreme Court under section 33.

(2) For the purpose of subsection (1), a notice is not required to be given to—

(a) the Attorney-General if the State is a party to the relevant proceeding; or

(b) the Commission if the Commission is a party to the relevant proceeding.

36 Declaration of inconsistent interpretation

(1) This section applies if—

(a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or

(b) the Supreme Court has had a question referred to it under section 33; or

(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

(3) If the Supreme Court is considering making a declaration of inconsistent interpretation, it must ensure that notice in the prescribed form of that fact is given to the Attorney-General and the Commission.

(4) The Supreme Court must not make a declaration of inconsistent interpretation unless the Court is satisfied that—

(a) notice in the prescribed form has been given to the Attorney-General and the Commission under subsection (3); and

(b) a reasonable opportunity has been given to the Attorney-General and the Commission to intervene in the proceeding or to make submissions in respect of the proposed declaration of inconsistent interpretation.

(5) A declaration of inconsistent interpretation does not—

(a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or

(b) create in any person any legal right or give rise to any civil cause of action.

(6) The Supreme Court must cause a copy of a declaration of inconsistent interpretation to be given to the Attorney-General—

(a) if the period provided for the lodging of an appeal in respect of the proceeding in which the declaration was made has ended without such an appeal having been lodged, within 7 days after the end of that period; or

(b) if on appeal the declaration is upheld, within 7 days after any appeal has been finalised.

Example

If the Trial Division of the Supreme Court makes a declaration of inconsistent interpretation (based on a referral of a question from VCAT) and on appeal the Court of Appeal upholds the declaration, a copy of the declaration must be sent to the Attorney-General within 7 days after the Court of Appeal's decision.

(7) The Attorney-General must, as soon as reasonably practicable, give a copy of a declaration of inconsistent interpretation received under subsection (6) to the Minister administering the statutory provision in respect of which the declaration was made, unless the relevant Minister is the Attorney-General.

37 Action on declaration of inconsistent interpretation

Within 6 months after receiving a declaration of inconsistent interpretation, the Minister administering the statutory provision in respect of which the declaration was made must—

(a) prepare a written response to the declaration; and

S. 37(b) amended by No. 20/2022 s. 23.

(b) cause a copy of the declaration and of the Minister's response to it to be—

(i) laid before each House of Parliament; and

(ii) published in the Government Gazette.

Division 4—Obligations on public authorities

38 Conduct of public authorities

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Example

Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

(3) This section does not apply to an act or decision of a private nature.

(4) Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

(5) In this section religious body means—

(a) a body established for a religious purpose; or

(b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.

39 Legal proceedings

(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—

(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3) A person is not entitled to be awarded any damages because of a breach of this Charter.

(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

Part 4—Victorian Equal Opportunity and Human Rights Commission

40 Intervention by Commission

(1) The Commission may intervene in, and may be joined as a party to, any proceeding before any court or tribunal in which a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter.

(2) If the Commission intervenes in a proceeding under this section, then, for the purpose of the institution and prosecution of an appeal from an order made in that proceeding, the Commission may be taken to be a party to the proceeding.

41 Functions of the Commission

The Commission has the following functions in relation to this Charter—

(a) to present to the Attorney-General an annual report that examines—

(i) the operation of this Charter, including its interaction with other statutory provisions and the common law; and

(ii) all declarations of inconsistent interpretation made during the relevant year; and

(iii) all override declarations made during the relevant year; and

(b) when requested by the Attorney-General, to review the effect of statutory provisions and the common law on human rights and report in writing to the Attorney-General on the results of the review; and

(c) when requested by a public authority, to review that authority's programs and practices to determine their compatibility with human rights; and

(d) to provide education about human rights and this Charter; and

(e) to assist the Attorney-General in the review of this Charter under sections 44 and 45; and

(f) to advise the Attorney-General on anything relevant to the operation of this Charter; and

(g) any other function conferred on the Commission under this Charter or any other Act.

42 Powers

The Commission has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions under this Charter.

43 Reports to be laid before Parliament

(1) The Attorney-General must cause a copy of any report prepared by the Commission in accordance with section 41(a) or (b) (as amended under subsection (2), if applicable) to be laid before each House of Parliament on or before the 6th sitting day of that House after the Attorney-General has received the report.

(2) The Attorney-General may amend a report received under section 41(a) or (b) if the Attorney-General considers it necessary to do so to prevent disclosure of—

(a) the identity of any person whose human rights have, or may have been, contravened; or

(b) the identity of any person who may have contravened another person's human rights; or

S. 43(3) amended by No. 20/2022 s. 24.

(3) If the Attorney-General amends the report in accordance with subsection (2), the Attorney-General must present a statement that the report has been amended when laying the report before Parliament in accordance with subsection (1).

Part 5—General

44 Review of Charter after 4 years of operation

(1) The Attorney-General must cause a review to be made of the first 4 years of operation of this Charter and must cause a copy of a report of the review to be laid before each House of Parliament on or before 1 October 2011.

(2) A review under subsection (1) must include consideration as to whether—

(a) additional human rights should be included as human rights under this Charter, including but not limited to, rights under—

(i) the International Covenant on Economic, Social and Cultural Rights; and

(ii) the Convention on the Rights of the Child; and

(iii) the Convention on the Elimination of All Forms of Discrimination against Women; and

(b) the right to self-determination should be included in this Charter; and

(d) further provision should be made in this Charter with respect to proceedings that may be brought or remedies that may be awarded in relation to acts or decisions of public authorities made unlawful because of this Charter.

45 Review of Charter after 8 years of operation

(1) The Attorney-General must cause a review to be made of the 5th to 8th years of operation of this Charter and must cause a copy of a report of the review to be laid before each House of Parliament on or before 1 October 2015.

(2) A report under subsection (1) must include a recommendation as to whether any further review of this Charter is necessary.

46 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Charter to be prescribed or necessary to be prescribed to give effect to this Charter.

(2) Without limiting subsection (1), the Governor in Council may make regulations for or with respect to—

(a) prescribing entities to be public authorities for the purposes of this Charter; and

(b) prescribing entities not to be public authorities for the purposes of this Charter; and

(c) prescribing entities not to be public authorities for the purposes of this Charter when exercising certain functions; and

(d) prescribing bodies that are authorised to accredit interpreters; and

(e) prescribing forms for the purposes of this Charter.

(3) A power conferred by this Charter to make regulations may be exercised—

(a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and

(b) so as to make, as respects the cases in relation to which the power is exercised—

(i) the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or

(ii) any such provision either unconditionally or subject to any specified condition.

(4) Regulations under this Charter may be made—

(a) so as to apply at all times or at a specified time; and

(b) so as to require matters affected by the regulations to be—

(i) in accordance with specified standards or specified requirements; or

(ii) approved by or to the satisfaction of specified persons or bodies or specified classes of persons or bodies; or

(iii) as specified in both subparagraphs (i) and (ii); and

(i) wholly or partially or as amended by the regulations; or

(ii) as in force at a particular time or as in force from time to time; and

(d) so as to confer a discretionary authority or impose a duty on specified persons or bodies or specified classes of persons or bodies; and

(e) so as to provide in specified cases or classes of case for the exemption of persons or things or classes of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified.

S. 47 repealed by No. 29/2011 s. 3(Sch. 1 item 8).

48 Savings provision

Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

49 Transitional provisions

(1) This Charter extends and applies to all Acts, whether passed before or after the commencement of Part 2, and to all subordinate instruments, whether made before or after that commencement.

(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

(3) Division 4 of Part 3 does not apply to any act or decision made by a public authority before the commencement of that Division.

S. 49(4) inserted by No. 68/2009 s. 97(Sch. item 18.4).

(4) Section 33(3) as amended by item 18.3 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to a question referred under section 33(1) on or after the commencement of that item.

Sch. repealed by No. 29/2011 s. 3(Sch. 1 item 8).

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 4 May 2006

Legislative Council: 19 July 2006

The long title for the Bill for this Act was "to protect and promote human rights, to make consequential amendments to certain Acts and for other purposes."

The Charter of Human Rights and Responsibilities Act 2006 was assented to on 25 July 2006 and came into operation as follows:

Sections 1–31, 40–49 and the Schedule on 1 January 2007: section 2(1); sections 32–39 on 1 January 2008: section 2(2).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Charter of Human Rights and Responsibilities Act 2006 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Coroners Act 2008, No. 77/2008

Assent Date:	11.12.08
Commencement Date:	S. 129(Sch. 2 item 5) on 1.11.09: s. 2
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date:	24.11.09
Commencement Date:	S. 97(Sch. item 18) on 1.1.10: Government Gazette 10.12.09 p. 3215
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

Transport Integration Act 2010, No. 6/2010 (as amended by No. 45/2010)

Assent Date:	2.3.10
Commencement Date:	S. 203(1)(Sch. 6 item 5) on 1.7.10: Special Gazette (No. 256) 30.6.10 p. 1
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

Equal Opportunity Act 2010, No. 16/2010 (as amended by No. 26/2011)

Assent Date:	27.4.10
Commencement Date:	S. 209(Sch. item 1) on 1.8.11: s. 2(4)
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

Statute Law Revision Act 2011, No. 29/2011

Assent Date:	21.6.11
Commencement Date:	S. 3(Sch. 1 item 8) on 22.6.11: s. 2(1)
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

Open Courts Act 2013, No. 58/2013

Assent Date:	22.10.13
Commencement Date:	S. 37 on 1.12.13: s. 2(2)
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

Public Administration Amendment (Public Sector Improvement) Act 2014, No. 6/2014

Assent Date:	11.2.14
Commencement Date:	S. 14 on 1.4.14: Special Gazette (No. 65) 4.3.14 p. 1
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date:	3.6.14
Commencement Date:	S. 10(Sch. item 15) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

Local Government Act 2020, No. 9/2020

Assent Date:	24.3.20
Commencement Date:	S. 390(Sch. 1 item 14) on 6.4.20: Special Gazette (No. 150) 24.3.20 p. 1
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

Justice Legislation Amendment Act 2022, No. 20/2022

Assent Date:	31.5.22
Commencement Date:	Ss 9–24 on 1.6.22: s. 2(1)
Current State:	This information relates only to the provision/s amending the Charter of Human Rights and Responsibilities Act 2006

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Explanatory details

No entries at date of publication.

1 Charter of Human Rights and Responsibilities Act 2006

Version No. 015

Charter of Human Rights and Responsibilities Act 2006

No. 43 of 2006

Version incorporating amendments as at
1 June 2022

table of provisions

Section Page

Part 1—Preliminary 2

1 Purpose and citation 2

2 Commencement 3

3 Definitions 3

4 What is a public authority? 5

5 Human rights in this Charter in addition to other rights and freedoms 9

6 Application 9

Part 2—Human rights 11

7 Human rights—what they are and when they may be limited 11

8 Recognition and equality before the law 11

9 Right to life 12

10 Protection from torture and cruel, inhuman or degrading treatment 12

11 Freedom from forced work 12

12 Freedom of movement 13

13 Privacy and reputation 13

14 Freedom of thought, conscience, religion and belief 13

15 Freedom of expression 14

16 Peaceful assembly and freedom of association 14

17 Protection of families and children 14

18 Taking part in public life 15

19 Cultural rights 15

20 Property rights 16

21 Right to liberty and security of person 16

22 Humane treatment when deprived of liberty 17

23 Children in the criminal process 17

24 Fair hearing 18

25 Rights in criminal proceedings 18

26 Right not to be tried or punished more than once 20

27 Retrospective criminal laws 20

Part 3—Application of human rights in Victoria 21

Division 1—Scrutiny of new legislation 21

28 Statements of compatibility 21

29 No effect on Victorian law 22

30 Scrutiny of Acts and Regulations Committee 22

Division 2—Override declaration 22

31 Override by Parliament 22

Division 3—Interpretation of laws 24

32 Interpretation 24

33 Referral to Supreme Court 24

34 Attorney-General's right to intervene 25

35 Notice to Attorney-General and Commission 25

The Charter builds on several interlocking legal concepts. At the core is the statutory definition of "human rights" and the scheme for their protection.

Human rights and limits: The Charter defines "human rights" as the civil and political rights set out in Part 2 (s 3, definition of "human rights"; s 7(1)). Those rights may be subject to limits, but only to such reasonable limits as can be demonstrably justified in a free and democratic society, with factors to take into account listed in s 7(2). The limiting test invites a proportionality‑style analysis: considering the nature of the right, importance of the purpose, extent and relationship of the limitation to its purpose, and any less restrictive means (s 7(2)(a)-(e)). The Charter also states that nothing in it gives a person or body the right to limit or destroy the human rights of any person beyond what the Charter itself provides (s 7(3)).

Public authority: "Public authority" is a critical concept because many of the Charter's duties apply only to public authorities (s 6(2)(c); Division 4, Part 3). Section 4 provides a broad and multi‑factorial definition. A public authority includes public officials as defined in the Public Administration Act 2004 (s 4(1)(a)); entities established by statute with functions of a public nature (s 4(1)(b)); and entities whose functions are or include functions of a public nature when the entity is exercising those functions on behalf of the State or a public authority (s 4(1)(c)). Section 4(2) lists non‑exhaustive factors for determining whether a function is "of a public nature", including statutory conferral, connection with government functions, regulatory nature, public funding, or State ownership of shares. The section includes examples and notes that underscore the potential for private entities to be caught when performing public functions or acting on the State's behalf.

Interpretive obligation: Section 32 imposes an obligation on statutory interpreters: "so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights" (s 32(1)). Section 32(2) permits consideration of international law and foreign and international judgments relevant to a human right. Section 32(3) clarifies that the interpretive duty does not affect the validity of an Act or subordinate instrument that is incompatible with a human right.

Declarations and overrides: The Charter establishes two dialogic mechanisms between courts and Parliament. The Supreme Court may make a declaration of inconsistent interpretation where it is of the opinion a statutory provision cannot be interpreted consistently with a human right (s 36(2)). Such declarations do not invalidate the provision, nor do they create legal rights or causes of action (s 36(5)); they trigger an administrative process requiring the responsible Minister to prepare a written response and to table and publish the declaration and response within six months (s 37). Parliament may, in turn, expressly override the application of the Charter by including an "override declaration" in an Act, effective despite incompatibility with human rights (s 31(1)). An override declaration is intended to be exceptional, must be accompanied by a statement explaining the exceptional circumstances (s 31(3)-(5)), and expires on the fifth anniversary unless re‑enacted (s 31(7)-(8)).

Scrutiny and statement of compatibility: Legislators must prepare statements of compatibility for Bills (s 28). The Scrutiny of Acts and Regulations Committee is charged with examining Bills and reporting on compatibility (s 30).

Remedies and limits: The Charter provides access to relief in existing legal proceedings for unlawfulness arising because of the Charter (s 39(1)-(2)), but it expressly denies entitlement to damages for breach of the Charter (s 39(3)). The Charter therefore privileges declaratory and injunctive responses and administrative political oversight over monetary compensation under the Charter itself.

Institutional support: The Commission has a defined role in intervention (s 40), education and reporting (s 41), and may be joined as a party in proceedings raising Charter questions (s 40(1)-(2)). The Attorney‑General has a right to intervene and to be notified of proceedings raising Charter questions (ss 34, 35). Regulations may designate who counts as a public authority and may prescribe forms and accreditation standards (s 46).

Together, these concepts form a framework that imposes interpretive constraints on statutory construction, places obligations on public authorities, inscribes parliamentary disclosure and scrutiny duties, and creates mechanisms for judicially identified incompatibility to be communicated to the executive and Parliament without nullifying the underlying statutory provisions.

The Charter exhibits a deliberately targeted scope. It applies primarily to "persons" in the sense of human beings and to public actors within the Victorian legal and administrative systems. The Act makes repeated distinctions about who is and is not within the Charter's ambit.

Natural persons: Section 6(1) states that "only persons have human rights" and "corporations do not have human rights." The rights set out in Part 2 therefore apply to human beings, including children (s 3 definitions and Part 2 provisions such as s 17, s 23). The catalogue is not framed to directly confer rights on legal persons such as companies.

Public authorities and the State: The Charter applies to the Parliament (insofar as it has functions under Divisions 1 and 2 of Part 3), to courts and tribunals (to the extent they have functions under Part 2 and Division 3 of Part 3), and to public authorities (s 6(2)(a)-(c)). The Charter binds the Crown in right of Victoria and, as far as legislative power permits, the Crown in all other capacities (s 6(4)). The concept of "public authority" is broad and includes public officials (Public Administration Act 2004) (s 4(1)(a)), statutory entities with public functions (s 4(1)(b)), Victoria Police (s 4(1)(d)), councils and councillors under the Local Government Act 2020 (s 4(1)(e)), Ministers (s 4(1)(f)), members of Parliamentary Committees acting administratively (s 4(1)(g)), and entities declared by regulation (s 4(1)(h)). Courts and Parliament are expressly excluded from being public authorities when acting in their parliamentary or judicial capacities, although administrative acts by courts and tribunals do fall within the definition (s 4(1)(i)-(j)).

Private entities and contracted providers: The Act captures private entities where they perform "functions of a public nature" and are acting on behalf of the State or a public authority (s 4(1)(c)). Section 4(2) lists factors relevant to whether a function is of a public nature, such as statutory conferral, the function being connected with government activities, the function being regulatory, public funding, or State ownership of shares. The Act includes an example of a private company managing a prison under the Corrections Act 1986 being a provider of a function generally identified as government. The Act also provides an example that a non‑government school educating students might exercise public‑type functions but not be a public authority if not acting on behalf of the State (s 4 examples). These provisions create a practical border zone where NGOs, contractors and privately run service providers may become subject to the public authority duty when delivering public functions under contract or other arrangements, but the determination is fact‑sensitive and multi‑factorial (s 4(3)-(5)).

Legislators and the executive: Members of Parliament who introduce Bills are obliged to cause statements of compatibility to be prepared and to lay them before the House before the second reading speech (s 28(1)-(2)). Ministers are obliged to respond to declarations of inconsistent interpretation within six months, and to cause the declaration and response to be tabled and published (s 37). Parliament holds the power to make override declarations (s 31), affecting how rights will apply to specific statutory provisions.

Courts, tribunals and legal practitioners: Courts and tribunals are affected insofar as they must interpret statutes compatibly with human rights "so far as it is possible to do so consistently with their purpose" (s 32(1)). The Supreme Court and Court of Appeal acquire a formal role in determining Charter questions via referral (s 33) and in issuing declarations of inconsistent interpretation (s 36). The Act empowers the Attorney‑General and the Commission to intervene in proceedings (ss 34, 40), which affects litigation strategy and notification obligations (s 35).

Victorians generally: Although human rights are recognised for all persons, the Charter's practical obligations fall mostly on public authorities and Parliament. Private individuals may be affected indirectly by public authority decisions re‑shaped by Charter duties, and may seek relief in legal proceedings under pre‑existing mechanisms where those duties are breached (s 39). Some rights are expressly limited to persons lawfully within Victoria (for example, freedom of movement, s 12), which has implications for non‑citizens present in Victoria.

Religious bodies: Section 38(4) creates a specific carve‑out, displacing the public authority obligation where acting in conformity with religious doctrines would otherwise be impeded. The Act defines "religious body" in s 38(5). This modifies who duties bind within organisations that are religious in character and affects public authorities that are religious bodies.

In practice, the Charter affects a mix of actors: natural persons enjoy the listed rights; public authorities must adjust conduct and decision‑making practices; private providers delivering public functions must assess whether they are subject to Charter obligations; parliamentarians must prepare statements; and courts, the Attorney‑General and the Commission become active participants in the system the Charter creates.

The Charter contains discrete legal duties for several actors, and a statutory catalogue of rights for persons. This section summarises the central duties and the rights they protect.

Catalogue of rights: Part 2 enumerates the rights. The list includes, among others:

Recognition and equality before the law, non‑discrimination and special permissive measures for advancing disadvantaged groups (s 8).
Right to life (s 9).
Protection from torture and cruel, inhuman or degrading treatment, and prohibition of medical or scientific experimentation without informed consent (s 10).
Freedom from slavery, servitude and forced labour, with narrow exceptions (s 11).
Freedom of movement within and to and from Victoria (s 12).
Privacy and reputation protections against unlawful or arbitrary interference (s 13).
Freedom of thought, conscience, religion and belief, and protection from coercion that limits religious freedom (s 14).
Freedom of expression with attendant duties and lawful restrictions (s 15).
Rights to peaceful assembly and freedom of association (s 16).
Rights concerning families and children, including the best interests of the child (s 17).
Rights to participate in public life, vote and access public office on equal terms (s 18).
Cultural rights, with specific recognition of Aboriginal cultural rights (s 19).
Property rights: not to be deprived of property other than in accordance with law (s 20).
Liberty and security of the person, including protections against arbitrary arrest or detention and procedural safeguards for the arrested or detained (s 21).
Humane treatment when deprived of liberty (s 22).
Special protections for children in the criminal process (s 23).
Fair hearing rights and public judgments subject to child welfare exceptions and other legal permissions (s 24).
Minimum guarantees for persons charged with criminal offences, including right to be informed, to legal assistance, interpreters, and not to be compelled to testify against oneself (s 25).
Protections against double jeopardy, retrospective criminal laws and disproportionate penalties (ss 26-27).

These rights are expressed as civil and political rights; other rights (for example economic and social rights) are not included, though the Charter contemplates review of whether additional rights might be added (s 44(2)(a)).

Duties of public authorities: The Act makes it unlawful for a public authority to act incompatibly with a human right, or to fail to give proper consideration to a relevant human right when making a decision (s 38(1)). The duty is subject to exceptions: where another statutory provision or other law makes it impossible to act differently (s 38(2)); where the act or decision is private in nature (s 38(3)); and an express exemption for religious bodies to act in conformity with their doctrines (s 38(4)). The public authority duty is procedural and substantive: it requires both compatible conduct and proper consideration of rights in decision‑making.

Interpretive duty for statutory construction: Section 32(1) requires that "so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights." This obligation influences judicial and administrative statutory interpretation but stops short of invalidating provisions that cannot be so read (s 32(3)(a)-(b)). Section 32(2) authorises consideration of international law and foreign and international judgments in interpretation.

Legislative duties: Members introducing Bills must cause statements of compatibility to be prepared and laid before the House before their second reading speech (s 28(1)-(2)). Statements must say whether, in the member's view, the Bill is compatible and indicate any incompatibilities (s 28(3)). Failure to comply with s 28 does not affect the validity of an Act (s 29).

Judicial and ministerial processes: The Supreme Court may declare that a statutory provision cannot be interpreted consistently with a human right (s 36(2)). Before making such a declaration the Court must give notice to the Attorney‑General and the Commission and must allow a reasonable opportunity for intervention and submissions (s 36(3)-(4)). Declarations do not affect the validity, operation or enforcement of the statutory provision or create legal rights; they do trigger a ministerial response obligation: within six months of receiving the declaration the Minister must prepare a written response and cause the declaration and response to be tabled in each House and published in the Government Gazette (s 37).

Remedies and litigation: Section 39 enables persons who could already seek relief for unlawful acts or decisions of public authorities, under other law, to seek that relief on grounds arising because of the Charter. The section expressly preserves judicial review mechanisms (s 39(2)(a)-(b)), injunctive relief, stay of proceedings and exclusion of evidence. However, s 39(3) states that a person is not entitled to be awarded damages because of a breach of the Charter.

Notification and intervention duties: Parties in Supreme Court or County Court proceedings raising Charter questions must give notice in the prescribed form to the Attorney‑General and the Commission, subject to exceptions (s 35(1)-(2)). The Attorney‑General and the Commission may intervene in proceedings raising Charter issues (ss 34, 40).

Limitations and hierarchy: Section 7(2) identifies a proportionality criterion for lawful limitations of rights. Section 5 confirms that rights not listed in the Charter are not abrogated by their exclusion; other legal rights, including those arising under international law, Commonwealth law and the common law, remain (s 5). Section 31 preserves Parliament's legislative supremacy by enabling override declarations, which suspend the Charter's operation in respect of specified statutory provisions (s 31(6)).

In short, the Charter creates a rights catalogue and pairs it with interpretive duties (s 32), obligations on public authorities to act compatibly and to give proper consideration to rights (s 38), parliamentary and ministerial transparency duties (s 28, s 37), and litigation and supervisory processes that generate declarations and political responses rather than direct monetary remedies (ss 36-39).

The Charter does not create criminal penalties or a bespoke financial compensation scheme for breaches. Its enforcement architecture prioritises declarations, supervisory reporting and existing judicial remedies rather than punitive sanctions.

No damages for breach: The Act expressly precludes an entitlement to damages arising from breaches of the Charter (s 39(3)). Section 39(4) clarifies that this provision does not affect rights a person may have to damages apart from the operation of the Charter, meaning that damages remain available where other statutory or common law causes of action exist and are independent of the Charter itself. The Charter therefore does not itself create a private monetary remedy.

Declaratory and injunctive remedies: Section 39(1) provides that if, apart from the Charter, a person may seek relief or remedy in respect of an unlawful act or decision of a public authority, they may seek that relief on a ground of unlawfulness arising under the Charter. Section 39(2) preserves rights to judicial review under the Administrative Law Act 1978 and under the Rules of the Supreme Court, and allows a person to seek declarations of unlawfulness, injunctions, stays of proceedings or exclusion of evidence. These are the principal legal remedies envisaged by the Charter.

Supreme Court declarations: The Charter gives the Supreme Court power to make declarations of inconsistent interpretation where a statutory provision cannot be interpreted consistently with a human right (s 36(2)). Importantly, such declarations do not affect the validity, operation or enforcement of the provision (s 36(5)(a)), nor do they create legal rights or give rise to civil causes of action (s 36(5)(b)). The effect of a declaration is therefore political and administrative rather than directly remedial; it triggers ministerial action under s 37.

Ministerial and parliamentary accountability: After a declaration of inconsistent interpretation, the Minister administering the statutory provision must, within six months, prepare a written response and cause both the declaration and the response to be laid before each House of Parliament and published in the Government Gazette (s 37). This creates an enforced information and accountability loop between the judiciary, the executive and Parliament.

Notification and intervention mechanisms: Parties to proceedings raising Charter questions must give notice to the Attorney‑General and the Commission in the prescribed form (s 35). The Attorney‑General and the Commission have rights to intervene and to be joined as parties in proceedings raising Charter questions (ss 34, 40). These mechanisms function as enforcement adjuncts by enabling executive and quasi‑public scrutiny of litigation that implicates human rights.

Parliamentary override: Parliament retains a constitutional control mechanism: it may enact an override declaration in an Act providing that the Act or provision has effect despite incompatibility with human rights (s 31(1)). An override declaration extends to subordinate instruments made under the Act or provision (s 31(2)). Override declarations are intended to be exceptional, must be accompanied by statements explaining the exceptional circumstances (s 31(3)-(5)), and expire on the fifth anniversary unless re‑enacted (s 31(7)-(8)). The override facility limits judicial remedies by removing the Charter's application to specified statutory provisions.

Limitations on enforcement reach: The Charter explicitly does not apply to Acts of Parliament for the purposes of validity; failure to prepare statements of compatibility does not affect the validity, operation or enforcement of an Act (s 29). Similarly, a declaration of inconsistent interpretation does not invalidate the statute at issue (s 36(5)). These features make the Charter a framework for compatibility and dialogue rather than a scheme that directly displaces primary legislation or creates private statutory torts.

Institutional enforcement: The Scrutiny of Acts and Regulations Committee monitors Bills and statutory rules for compatibility and reports to Parliament (s 30). The Commission is charged with reporting on the operation of the Charter annually and may be involved in reviews requested by the Attorney‑General or public authorities, and in education about human rights (s 41). The Commission's role is regulatory and educative rather than punitive; the Attorney‑General retains editing powers over Commission reports laid before Parliament in order to protect identities or the public interest (s 43(2)).

Regulatory and administrative sanctions: The Charter does not prescribe administrative penalties such as fines or disciplinary sanctions for breaches by public authorities; instead, breaches are actionable through existing judicial review channels and may attract political or reputational consequences through the ministerial response and parliamentary scrutiny mechanisms.

In short, enforcement is oriented to declaratory, injunctive and political remedies, with a structured process for judicial identification of incompatibility and ministerial and parliamentary responses, while prohibiting damages claims solely under the Charter (s 39(3)). Parliament's power to override (s 31) and the preservation of legislative validity despite incompatibility (s 32(3), s 36(5)) restrain the Charter's direct legal enforcement power.

The Charter is drafted to operate alongside existing statutory, common law and international legal frameworks. The Act contains multiple cross‑references and express rules governing how it interacts with other laws.

Non‑exclusionary intent: Section 5 instructs that a right or freedom not included in the Charter but arising under other law must not be taken to be abrogated or limited merely because it is not included in the Charter. The section explicitly preserves rights and freedoms recognised under international law, the common law, the Commonwealth Constitution and Commonwealth law.

Interpretation and international law: Section 32(2) permits courts and decision makers to consider international law and judgments of domestic, foreign and international courts relevant to a human right in interpreting a statutory provision. This provision opens the possibility of drawing on international jurisprudence to inform how statutory provisions are read compatibly with human rights.

Preservation of legislative validity: Section 32(3) emphasises that the interpretive duty does not affect the validity of an Act or subordinate instrument that is incompatible with a human right (s 32(3)(a)-(b)). Likewise, s 29 confirms that failure to comply with the statements of compatibility obligation does not affect the validity, operation or enforcement of the resulting Act. These clauses preserve parliamentary sovereignty and the primacy of primary legislation.

Interplay with administrative law: Section 39(2)(a) preserves traditional avenues of judicial review under the Administrative Law Act 1978 and under the Rules of the Supreme Court (Order 56). The Charter supplements existing grounds of unlawfulness that may be pursued in judicial review but does not replace them. Where an act or decision is otherwise reviewable, it can be challenged on Charter grounds in the same proceedings.

Overlap with equal opportunity and anti‑discrimination law: The Charter cross‑references the Equal Opportunity Act 2010 in defining "discrimination" (s 3(1) def. of "discrimination") and renames and expands the functions of the Equal Opportunity Commission as the Victorian Equal Opportunity and Human Rights Commission (s 1(3)(b); Part 4). The Commission's functions under the Charter include examining interactions between the Charter and other statutory provisions and the common law (s 41(a)(i)), and intervening in proceedings raising Charter issues (s 40). This architecture situates the Charter within Victoria's broader human rights and anti‑discrimination regulatory ecosystem.

Subordinate instruments and overrides: An override declaration by Parliament in an Act extends to any subordinate instrument made under or for the purpose of that Act or provision (s 31(2)). The Governor in Council has regulation‑making power under s 46 to prescribe entities to be or not to be public authorities, to prescribe accreditation bodies for interpreters, and to prescribe forms. Regulations may also specify standards or confer discretions, producing detailed interactions between the Charter and subordinate regulatory regimes.

Criminal law and procedure: The Charter contains specific provisions affecting criminal process (ss 21-27) and interacts with court practice and criminal procedure legislation. Amendments referenced in the endnotes (for example Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009) indicate legislative adjustments to ensure coherence with criminal procedural arrangements (see Table of Amendments).

Crown and Commonwealth competence: Section 6(4) binds the Crown in right of Victoria and, "so far as the legislative power of the Parliament permits," the Crown in other capacities. This caveat recognises constitutional limits: the Charter cannot operate in inconsistency with constitutional constraints or federal legislative competence. The Charter also notes that rights arising under Commonwealth law or the Commonwealth Constitution are not abrogated by omission from the Charter (s 5).

Reporting and executive controls: The Attorney‑General may edit Commission reports laid before Parliament to prevent disclosure of identities or information harmful to the public interest (s 43(2)). This introduces an executive check on public reporting under the Charter, with implications for transparency and confidentiality across intersecting legal regimes.

Transitional and savings provisions: Section 49 contains transitional arrangements applying the Charter to Acts and subordinate instruments passed before its commencement; it preserves proceedings commenced or concluded before Part 2's commencement, and excludes retroactive application of Division 4 of Part 3 to acts or decisions made before that Division commenced (s 49(1)-(4)). Section 48 states that nothing in the Charter affects laws applicable to abortion or child destruction, whether before or after commencement of Part 2.

Overall, the Charter is a layering device. It requires interpretive alignment with human rights (s 32) where compatible with statutory purpose, preserves prior rights and laws (s 5, s 32(3), s 29), links into administrative law remedies (s 39), and contains bespoke mechanisms that promote dialogue between courts, executive and Parliament (ss 33-37). Its interactions are as much procedural and political as they are juridical.

The published version of the Charter incorporates multiple amendments spanning 2008-2022. The endnotes and "Table of Amendments" in the source list the amending Acts, their assent and commencement dates, and the provisions affected. The principal entries are:

Coroners Act 2008 (No. 77/2008): Amended definitions in s 3; specific commencement item s 129(Sch. 2 item 5) commenced on 1 November 2009.
Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (No. 68/2009): Commenced on 1 January 2010 for the identified items amending the Charter (s 97(Sch. item 18)).
Transport Integration Act 2010 (No. 6/2010), as amended by No. 45/2010: Amended s 4(2)(a) example references; commencement for relevant item on 1 July 2010 (s 203(1)(Sch. 6 item 5)).
Equal Opportunity Act 2010 (No. 16/2010): Affected definitions, including "Commission" and "discrimination" in s 3, with commencement for s 209(Sch. item 1) on 1 August 2011.
Statute Law Revision Act 2011 (No. 29/2011): Adopted statutory housekeeping amendments; commenced 22 June 2011 for the identified items.
Open Courts Act 2013 (No. 58/2013): Substituted s 24(2) regarding public exclusion, commencement 1 December 2013 for s 37.
Public Administration Amendment (Public Sector Improvement) Act 2014 (No. 6/2014): Amended notes and definitions related to "public official", commenced 1 April 2014 (s 14).
Victoria Police Amendment (Consequential and Other Matters) Act 2014 (No. 37/2014): Amended the definition/meaning of "Victoria Police" (s 3), commencement 1 July 2014 for s 10(Sch. item 15).
Local Government Act 2020 (No. 9/2020): Inserted Councils and councillors as public authorities under s 4(1)(e); commencement 6 April 2020 for s 390(Sch. 1 item 14).
Justice Legislation Amendment Act 2022 (No. 20/2022): A cluster of amendments (ss 9-24) came into effect on 1 June 2022; the endnote indicates specific amendments to various substantive provisions including rights wording (s 8(2); s 10(c); s 13; s 14; s 15(2)(e); s 17(2); s 19(1); s 21(3)-(8); s 23(3); s 24(2); s 25(2) subsections; s 26; s 31(3); s 32 etc). The table records that multiple subsections were amended by that Act and commenced on 1 June 2022.

Commencement staging: The Charter itself commenced in stages. Sections 1-31, 40-49 and the Schedule came into operation on 1 January 2007; sections 32-39 (the interpretive duty and public authority obligations, among others) commenced on 1 January 2008 (s 2).

Interpretation Act effects: The endnotes also reference the Interpretation of Legislation Act 1984 style changes and interpretive consequences affecting headings, examples and notes, punctuation and provision numbers. These are housekeeping but relevant for counsel citing the Act.

Other consequential amendments: The Charter's enactment entailed consequential amendments across a range of Victorian statutes, as signalled in the long title and the endnotes. These consequential adjustments, and the list of specific amending Acts, indicate a legislative calibration process linking the Charter into Victoria's broader statute book.

Taken together, the amendment history shows iterative refinement: definitional adjustments, clarification about institutions (for example, local government and Victoria Police), procedural amendments to rights language, and ongoing alignment with changes to administrative and criminal procedure law. For practitioners, consulting the Version No. 015 text here (incorporating amendments as at 1 June 2022) is necessary to capture these changes; the endnotes identify the primary amending instruments and their operative items and dates.

The statutory text supplied does not list or describe judicial decisions applying the Charter. The Act sets out mechanisms that generate litigation and judicial pronouncements, but the source itself contains no case law.

What the Charter does provide, and therefore how litigation typically arises, is important to record because it defines the procedural pathways that produce judicial materials:

Referral mechanism to the Supreme Court: If a court or tribunal in a proceeding encounters a question of law relating to the application of the Charter or interpretation of a statutory provision in accordance with the Charter, the question may be referred to the Supreme Court where a party applies and the referring court considers the question appropriate (s 33(1)). If a question is referred, the referring court must not make a determination to which the question is relevant while the referral is pending (s 33(2)). This creates appellate‑type litigation flows that bring Charter issues before the Supreme Court and, by virtue of the appeal routes noted in s 33(3), before the Court of Appeal in certain circumstances.
Declarations of inconsistent interpretation: The Supreme Court may make a declaration of inconsistent interpretation if it is of the opinion a statutory provision cannot be interpreted consistently with a human right (s 36(2)). Before making such a declaration the Court must give notice to the Attorney‑General and the Commission and afford them reasonable opportunity to intervene or make submissions (s 36(3)-(4)). Declarations do not affect the validity, operation or enforcement of the statutory provision nor create legal rights or causes of action (s 36(5)). They are therefore judicial findings that prompt executive and parliamentary response rather than produce immediate statutory invalidity.
Appeals and interventions: The Attorney‑General may intervene and be joined as a party to proceedings concerning Charter questions (s 34), and the Commission may intervene and be joined (s 40). Parties must give notice to the Attorney‑General and the Commission when such Charter questions arise in Supreme Court or County Court proceedings or when a question is referred to the Supreme Court (s 35). These notification and intervention provisions shape litigation strategy and the potential presence of state actors in Charter litigation.
Remedies available in litigation: Where judicial challenges are brought, the Charter allows persons who could otherwise seek relief for unlawful acts or decisions of public authorities to seek such relief on Charter grounds (s 39(1)). Judicial review, declarations, injunctions, stays, and exclusion of evidence remain available (s 39(2)). Damages are not available under the Charter itself (s 39(3)).

Because the Act does not itself catalogue litigation, practitioners must consult court databases and the Supreme Court and Court of Appeal decisions to track how courts have applied ss 32, 36 and 38 in specific fact patterns. The Act's procedural architecture indicates that litigation often involves interpretation questions, administrative decisions by public authorities, and potential clashes between statutory purpose and human rights compatibility. The presence of statutory notice and intervention obligations also means litigation records often include submissions from the Attorney‑General and the Commission.

For practitioners preparing Charter litigation, the Act prescribes precise procedural steps that may influence arguments, including the requirement that the Supreme Court give notice before making a declaration and the requirement that Ministers respond to declarations within six months (ss 36(3)-(4), 37). The Act's design also suggests that successful litigation commonly results in political or administrative change, rather than immediate nullification of statutory provisions, since declarations do not invalidate legislation (s 36(5)) and Parliament may respond with override declarations if it chooses (s 31).

In sum, while the source text contains no reported cases, it lays out the procedural routes that produce judicial engagement with Charter rights. To assess litigation trends, outcomes and doctrinal development, readers must consult case law beyond the statutory text.

The Charter contains structural features and drafting choices that generate predictable legal and practical pitfalls. The following are concrete "gotchas" surfaced by the text and its mechanics, with section references.

Statements of compatibility carry political but not legal teeth. Members introducing Bills must cause a statement of compatibility to be prepared and laid before the House before the second reading speech (s 28(1)-(2)). However, failure to comply does not affect the validity, operation or enforcement of the resulting Act (s 29). Practitioners should not assume that absence or inadequacy of a statement creates a judicial remedy; its principal effects are parliamentary and political.
The interpretive duty is bounded by statutory purpose. Section 32(1) requires statutes be interpreted compatibly with human rights "so far as it is possible to do so consistently with their purpose." Where statutory purpose clearly requires an incompatible meaning, the interpretive duty yields. This is a standard limiting clause that makes success in Charter‑based interpretive arguments context dependent; the threshold is whether a compatible reading is possible while still achieving legislative purpose.
Declarations of inconsistent interpretation do not invalidate legislation or create rights. Even where the Supreme Court finds a provision cannot be read compatibly, the declaration does not affect the validity, operation or enforcement of the provision, nor does it create legal rights or civil causes of action (s 36(5)). The practical consequence is that litigation producing such declarations often triggers government responses rather than immediate statutory change.
No damages under the Charter itself. Section 39(3) bars damages awards for breaches of the Charter. Remedies available are declaratory, injunctive or via other causes of action. Lawyers must therefore consider parallel legal bases (tort, statutory causes, administrative law) if monetary relief is sought.
Public authority status is multi‑factorial and often uncertain. Section 4 uses a fact‑sensitive list of factors to determine if a function is "of a public nature" and whether an entity is a public authority for Charter purposes (s 4(2)-(3), (4)-(5)). Contracts, funding arrangements and regulatory contexts can flip private providers into the Charter net (s 4(1)(c)). Advisers should assess contracts, statutory conferrals and whether the entity is "acting on behalf of the State" to determine exposure.
Religious‑body carve‑out can create complexity. Section 38(4) excludes the requirement that a public authority act compatibly with human rights to the extent that compliance would impede or prevent a religious body from acting in conformity with religious doctrines. The definition of "religious body" in s 38(5) is functional. This carve‑out may produce tensions, for instance in religious schools that receive public funding; counsel must map the interface between religious exemptions and contractual or statutory public functions.
Parliamentary override is time‑limited but re‑enactable. An override declaration in an Act removes the Charter's application to the specified provision (s 31(6)) and expires on the fifth anniversary unless re‑enacted (s 31(7)-(8)). A client should not assume permanence; an override is a reversible political act that may invite future litigation and political controversy.
Notice obligations are procedural traps. A party to a proceeding must give notice in the prescribed form to the Attorney‑General and the Commission where Supreme Court or County Court Charter questions arise (s 35(1)). Parties must check prescribed forms and timing; failure to notify where required could lead to procedural consequences or give grounds for opposing intervention arguments.
Ministerial editing of Commission reports can limit transparency. The Attorney‑General may amend Commission reports before laying them before Parliament to prevent disclosure of identities or information that could harm the public interest (s 43(2)). This may affect the evidential utility of Commission reports used in advocacy or public campaigns.
The Charter preserves other laws and rights, including Commonwealth limits. Section 5 protects rights under other laws and the Commonwealth Constitution from being read as abrogated by omission from the Charter. Section 6(4) brings the Crown within the Charter only "so far as the legislative power of the Parliament permits", signalling constitutional limits. Practitioners must therefore consider Commonwealth constitutional law and federal statutes when deploying Charter arguments.
Timing and staged commencement matter for pre‑existing acts. Division 4 of Part 3 does not apply to acts or decisions made by a public authority before the commencement of that Division (s 49(3)), and the Charter's staged commencement (s 2) means different parts took effect at different times. Historical conduct may be insulated depending on timing.
The "reasonable limits" test is multifactorial and not easily won. Section 7(2) lists factors for when a right may be limited. Courts will apply proportionality‑style analysis; litigants should prepare to interrogate less restrictive alternatives, the importance of the legislative purpose and the relationship between limitation and purpose.
Prescribed regulations and forms can change practical application. Section 46 empowers the Governor in Council to prescribe public authorities and forms, and to make other detailed provisions. The content of regulations can therefore alter who counts as a public authority and what procedural steps are required.

These features mean that compliance, litigation and strategic planning under the Charter are often fact and procedure sensitive. Advisers should map statutory text, administrative facts, contract terms and the precise procedural posture of any litigation to avoid surprises.

Compliance under the Charter is primarily a governance and process challenge for public authorities, legislators and private entities carrying out public functions. The Act prescribes duties and procedural steps; the following is a practical, source‑grounded compliance checklist.

For public authorities (s 38, s 4):

Establish a human rights governance framework that documents how decisions are to be made compatibly with human rights. Section 38(1) makes it unlawful for a public authority to act in a way incompatible with a human right or to fail to give proper consideration to a relevant right. To demonstrate "proper consideration", maintain contemporaneous records explaining rights identified, how they were considered, and reasons for any incompatibility where reliance on s 38(2) (another law prevents different action) is necessary.
Undertake human rights impact assessments for policies, programs and statutory decision‑making. Use Part 2 (s 7-27) as the rights checklist. Where functions are delivered by contractors or third parties, assess whether those functions are "of a public nature" (s 4) and, if so, ensure contractual terms require compliance with Charter obligations and rights‑based decision processes.
Train decision makers and operational staff on the interpretation duty (s 32) and the requirement to consider human rights. Include guidance on proportionality (s 7(2)): identify purpose, test whether limits are reasonable and consider less restrictive alternatives.
Build notification procedures for litigation. When proceedings in the Supreme Court or County Court raise Charter issues, s 35 requires notice to the Attorney‑General and the Commission in the prescribed form. Implement a litigation escalation protocol to ensure prompt compliance with notice periods and forms, and to coordinate possible interventions by the Attorney‑General or the Commission.

For Ministers and agencies (s 28, s 37, s 36):

Where drafting or sponsoring legislation, produce robust statements of compatibility. Section 28 requires members introducing a Bill to cause a statement to be prepared and laid before the House before the second reading speech. Although non‑compliance does not invalidate the Act (s 29), statements are parliamentary documents relied on by Scrutiny Committees (s 30), and well‑founded statements reduce political and reputational risk.
If the Supreme Court issues a declaration of inconsistent interpretation, prepare the Ministerial response required by s 37 within the six‑month deadline. That response must be laid before each House and published in the Government Gazette (s 37(b)(i)-(ii)). Establish a process for legal, policy and communications input to ensure timely, carefully reasoned responses.

For private entities and contractors (s 4):

Evaluate whether your function is "of a public nature" and whether you are exercising that function "on behalf of" the State or a public authority (s 4(1)(c), s 4(2)). If yes, treat the Charter obligations as operational constraints and seek contractual protections or indemnities where appropriate.
Where contracts require delivery of public services, ensure terms permit the public authority to comply with Charter duties and require information sharing to demonstrate compliance. Seek legal advice about risk allocation if the contract obliges actions that might conflict with Charter rights.

For courts and lawyers (s 32, s 33, s 36, s 35):

Prepare to deploy s 32 interpretive arguments where statutory wording admits ambiguity; marshal comparative and international jurisprudence permitted by s 32(2). Be ready to argue whether a compatible reading is "possible" consistent with statutory purpose.
Follow referral protocol under s 33: if a tribunal or court considers a Charter question appropriate for the Supreme Court, file an application for referral and be aware that the referring court must pause relevant determinations while the referral is pending (s 33(2)). Ensure notice to Attorney‑General and Commission under s 35 is given where required.
If seeking a declaration of inconsistent interpretation, anticipate the Court's obligation to give notice and allow intervention by the Attorney‑General and Commission (s 36(3)-(4)), and prepare substantive submissions addressing remedial options and parliamentary consequences even though the declaration does not invalidate the law (s 36(5)).

For the Commission and scrutiny bodies (s 30, s 41, s 43):

The Commission should maintain systems for receiving and responding to notice of proceedings, for intervening where appropriate (s 40), and for preparing annual reports to the Attorney‑General on the operation of the Charter and declarations of inconsistent interpretation (s 41(a)). Be aware of the Attorney‑General's power to amend reports for confidentiality or public interest reasons (s 43(2)).

Organisational steps common to all actors:

Documentation: record rights analysis, decision‑making steps, legal advice and policy options. Proper documentation supports compliance with s 38(1) and provides a defensive record in litigation.
Training and education: use the Commission's educational function (s 41(d)) and internal training to build rights literacy among staff who make or administer decisions.
Policies and templates: develop template statements of compatibility for legislative drafters; create checklists for human rights impact assessments; embed s 7(2) proportionality considerations into decision templates.
Risk registers and governance: treat potential Charter incompatibilities as governance risks; track any override declarations affecting statutory provisions relevant to your operations (s 31).
Consult the Commission: section 41(c) allows the Commission to review public authority programs and practices on request. Use that resource proactively to identify and remediate compatibility issues.
Monitor regulations: section 46 permits the Governor in Council to prescribe who is a public authority and to set standards and forms. Keep regulatory watch to update compliance systems when regulations change.

In short, compliance is a mixture of legal interpretation, process design, documentation and institutional training. The Charter prescribes specific procedural obligations (statements of compatibility, notices, ministerial responses) and a general duty on public authorities to act compatibly and give proper consideration to rights (s 28, s 35, s 37, s 38). Embedding those obligations in corporate governance, contracting and administrative practices is the practical route to compliance.

Charter of Human Rights and Responsibilities Act 2006

Plain English Summary

Deep Dive

What it does

Current sections

Charter of Human Rights and Responsibilities Act 2006

Source text: opening excerpt

1 Charter of Human Rights and Responsibilities Act 2006

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply