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
(c) imposing an obligation on all public authorities to act 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
(c) makes consequential amendments to certain Acts.
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 1984entity 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.
(c) that the function is of a regulatory nature;
(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
(c) public authorities, to the extent that they have functions under Division 4 of Part 3.
(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
(c) the nature and extent 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
(c) work or service that forms part of normal civil obligations.
(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
(c) in print; 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
(c) to maintain their kinship ties; 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
(c) must be released if paragraph (a) or (b) is not complied with.
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
(c) if appropriate, for execution of judgment.
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
(c) to be tried without unreasonable delay; 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
(c) an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a).
(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
(c) information that could, in the Attorney-General's opinion, harm the public interest.
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
(c) regular auditing of public authorities to assess compliance with human rights should be made mandatory; 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
(c) so as to apply, adopt or incorporate any matter contained in any document whatsoever whether—
(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.