Charter of Human Rights and Responsibilities (General) Regulations 2017

The regulation introduces three key concepts: the accredited interpreter, the section 35(1) notice, and the section 36(3) notice. The concept of an accredited interpreter arises from the definition of interpreter in section 3(1) of the Charter Act. That definition has multiple limbs: paragraph (a) refers to a person accredited by a prescribed body. Regulation 5 prescribes NAATI as that body. NAATI is a company limited by guarantee that sets and administers national standards for translators and interpreters. The effect is that for any Charter-related proceeding where an interpreter is required, the interpreter must hold NAATI accreditation to fall within the statutory definition. The regulation does not address paragraph (b) of the definition, which covers other categories of interpreters. The second concept is the section 35(1) notice. Section 35 of the Charter Act deals with notices to the Attorney-General and the Commission when a Charter question arises in a proceeding. The notice must be given before the court decides the question. The regulation prescribes Form 1, which requires the notifying party to state specifically the question of law or interpretation, the facts showing the matter is one to which the Charter applies, and any directions made by the court. The form also requires service on the Victorian Government Solicitor on behalf of the Attorney-General at a specified street address or email, the Commission's legal unit at a specified address or email, the prothonotary or registrar of the court, and other parties. The third concept is the section 36(3) notice. Section 36(3) requires that if the Supreme Court is considering making a declaration of inconsistent interpretation, it must give notice to the Attorney-General and the Commission before making the declaration. Form 2 requires the court to identify the relevant statutory provision and Charter section and to state the listing date for directions or hearing. The form must be served on the same parties as Form 1. Both forms are located in Schedule 1 and are the only prescribed forms under the regulation. The concept of "prescribed form" is important: the regulation does not permit substantial deviation from these forms. The content is mandatory. The forms use placeholders in square brackets that must be completed accurately. Each form also contains instructions to delete inapplicable alternatives. This reflects a legislative intention to ensure consistent, complete notice across all proceedings.

This regulation directly affects several categories of persons and entities. First, parties to proceedings in Victorian courts where a Charter question arises. Any party who raises a question of law relating to the application of the Charter or a question about interpreting a statutory provision in accordance with the Charter must use Form 1 to notify the Attorney-General and the Commission. This imposes an administrative burden: the party must identify the precise legal question, state relevant facts, and serve the notice on multiple recipients. Failure to do so may delay proceedings because the court cannot decide the question without the notice having been given. Second, the Supreme Court of Victoria and the County Court are affected. The Supreme Court must use Form 2 when considering a declaration of inconsistent interpretation. The court itself is the entity that must give that notice before making the declaration. The County Court is also affected by Form 1 because section 35(1) applies to any court, including the County Court, when a Charter question arises. Third, the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission are directly affected as recipients of both forms. They are entitled to receive notice of Charter questions and may choose to intervene in proceedings. The regulation specifies the addresses for service: the Victorian Government Solicitor at 121 Exhibition Street, Melbourne, or by email to charter@vgso.vic.gov.au; the Commission's legal unit at 204 Lygon Street, Carlton, or by email to legal@veohrc.vic.gov.au. Fourth, interpreters working in Charter-related proceedings are affected because NAATI is prescribed as the sole accrediting body. An interpreter must hold NAATI accreditation to satisfy the definition in section 3(1)(a). This creates a barrier to entry for interpreters accredited by other bodies, and may affect the supply of interpreters in regional areas where NAATI accredited interpreters are scarce. The costs of NAATI accreditation (fees, testing, ongoing recertification) are ultimately borne by the parties or the legal aid system. Fifth, legal practitioners must ensure compliance with the prescribed forms when advising clients on Charter issues. The regulation does not affect the general public directly, but it indirectly affects anyone involved in a proceeding where a Charter right is invoked. The regulation does not affect federal courts or proceedings, as the Charter Act applies only to Victorian public authorities and proceedings in Victorian courts.

The regulation itself creates no new duties or rights beyond those that flow from the parent Act. The duties it prescribes are procedural. The primary duty is on a party who raises a Charter question in a proceeding: that party must give notice in the prescribed form to the Attorney-General and the Commission. The form must state the question specifically and the facts showing the matter is one to which the Charter applies. This duty is not optional; it is a precondition to the court deciding the question. The court has a corresponding duty not to decide the question until notice has been given. For a party who raises a referral under section 33 (referral of question to the Supreme Court), the same duty applies. The second duty is on the Supreme Court itself, under section 36(3), to give notice in the prescribed form before making a declaration of inconsistent interpretation. The court must identify the statutory provision and the Charter right at issue. This duty is on the court, not on the parties. The rights created are indirect. The Attorney-General and the Commission have a right to receive notice of Charter questions, which enables them to consider whether to intervene in the proceeding. The Attorney-General may appear and make submissions on the question; the Commission may also appear with the court's leave. The regulation ensures that these rights of notice are exercisable. For interpreters, the regulation does not create a right to be used; rather, it defines who qualifies as an accredited interpreter. A person who holds NAATI accreditation has a right to be recognised under paragraph (a) of the definition, but the regulation does not guarantee employment. For individuals who need an interpreter in Charter proceedings, the regulation may affect their ability to access an interpreter who meets the statutory definition. There is no right to a particular interpreter, only a requirement that the interpreter be NAATI accredited to fall within that limb of the definition. The regulation imposes no duties on interpreters themselves. The duties of accuracy and confidentiality arise from other laws and professional codes. The regulation does not address the cost of obtaining an accredited interpreter, nor does it provide for any exemption or alternative in cases of urgency or unavailability. These are gaps that may affect the practical exercise of rights under the Charter Act.

This regulation contains no penalty provisions. It does not create any offence for non-compliance with the prescribed forms, nor does it specify any civil or administrative consequence for failing to use the correct form. Enforcement of the notice requirements relies entirely on the parent Act and on the court's own procedures. Under section 35(1) of the Charter Act, if the required notice has not been given, the court must not decide the question. This is a statutory prohibition, not a penalty. The practical enforcement mechanism is that a party who objects to the court proceeding without proper notice can raise the issue. The court may adjourn the proceeding until notice is given. There is no expressed consequence if the notice is given but in the wrong form. The regulation states that the prescribed form is set out in Schedule 1, but it does not say that a notice in a different form is invalid. In practice, a notice that contains all the required information may be accepted, even if not on the exact form, but there is risk. The safer course is to use the prescribed form. For the section 36(3) notice, the court itself is responsible. If the court fails to give notice before making a declaration, that failure could render the declaration procedurally flawed. A party could seek to have the declaration set aside or the proceeding reopened. However, the regulation does not address this. The sunset provision under the Subordinate Legislation Act 1994 is an enforcement mechanism of a different kind: if the regulations are not remade before 28 November 2027, they cease to operate. After that date, there will be no prescribed forms and no prescribed accrediting body, unless a new regulation is made. That would create legal uncertainty. The regulation does not provide for any transitional arrangements or savings for notices given under the revoked 2007 regulations. In terms of cost of compliance, there is no penalty, but the cost of preparing and serving a notice is a burden on the party raising the Charter question. That party must also bear the cost of identifying the correct addresses and ensuring service. There is no fee prescribed for filing the notice with the court. Overall, the enforcement framework is light: it is procedural, not punitive.

This regulation is made under section 46 of the Charter of Human Rights and Responsibilities Act 2006, which confers a power to make regulations for purposes of that Act. It therefore forms part of the legislative scheme of the Charter Act. It directly operationalises sections 35 and 36 of that Act. The regulation also interacts with the Subordinate Legislation Act 1994, which imposes a sunset clause: regulation 3 of this instrument is noted as being subject to section 5 of that Act, meaning the regulations expire 10 years after they were made, i.e., 28 November 2027. Practitioners must check whether a replacement regulation has been made before that date. The Interpretation of Legislation Act 1984 applies to this statutory rule. The endnotes to the regulation explain that headings, examples, diagrams, notes, punctuation and provision numbers form part of the statutory rule. This is relevant for interpreting the forms: the content of the forms, including the headings, is part of the law. The regulation revokes the Charter of Human Rights and Responsibilities (General) Regulations 2007 (S.R. No. 135/2007). Any notices given under the 2007 regulations before revocation remain valid, but any notice given after 8 December 2017 must use the new forms. The regulation does not interact with any other Victorian statutes directly, but it has indirect effects. Courts that deal with Charter issues also operate under the Supreme Court Act 1986, the County Court Act 1958, and the rules of court. Those procedural rules may address how notices are filed; this regulation prescribes the form but not the filing procedure. The regulation also interacts with provisions in other Acts that require interpreters, such as the Evidence Act 2008 (Vic) or the Magistrates' Court Act 1989, but only to the extent that the Charter Act's definition of interpreter is engaged. The regulation does not override those Acts. For example, the Evidence Act has its own provisions about interpreters and may not require NAATI accreditation. The Charter Act's definition only applies for the purposes of that Act. However, in practice, courts may look to NAATI accreditation as a benchmark even outside the Charter context. The regulation does not interact with Commonwealth law. The Charter Act is a state law, and these regulations are state subordinate legislation. They have no operation in federal proceedings. The regulation does not purport to override any Commonwealth law, and the definition of interpreter in the Charter Act is separate from any definition in the Migration Act 1958 (Cth) or other federal laws.

According to the table of amendments in the endnotes, there are no amendments made to this regulation by any statutory rule, subordinate instrument, or Act. The regulation has remained in its original form since it was made on 28 November 2017 and commenced on 8 December 2017. The endnotes also state there are no amendments not in operation at the date of publication. This means the regulation has never been varied. It replaced the 2007 regulations entirely, but that was a revocation, not an amendment. The lack of amendment history is noteworthy because it suggests that the forms, the accrediting body, and the other prescribed matters have not required adjustment in the years since commencement. However, the sunset date of 2027 means that a new regulation will eventually need to be made, and that new regulation may introduce changes. Practitioners should monitor whether any amending instrument is published before the sunset, or whether a replacement regulation is made. The absence of amendments also means there is no accumulated case law about the specific wording of the forms under this version of the regulation. Any litigation that has occurred has likely interpreted the regulation as originally enacted. The 2007 regulation that was revoked had been in place for ten years; this 2017 regulation will also serve a ten-year term. The lack of amendment may be a sign that the forms are working adequately, or it may be a sign that the regulation is rarely litigated. Either way, the practitioner cannot rely on any amendment to the forms or to the accrediting body, because there are none. The regulation is stable.

The source material provides no information about any litigation involving this regulation. There is no reference to any case in the text of the regulation, the endnotes, or the forms. The table of amendments shows no amendments, and the explanatory details mention only the revocation of the 2007 regulations. It is possible that cases have considered the validity or effect of notices given under the regulation, but the source does not mention them. A practitioner would need to conduct independent legal research using case databases to find any relevant judgments. The lack of litigation history in the source means that, as far as this instrument is concerned, there are no judicial interpretations of its provisions. This is common for procedural regulations that are rarely the subject of dispute. Most disputes about the notice requirements under the Charter Act likely focus on the substance of the Charter question, not on the form of the notice. However, there might be unreported decisions about whether a notice was properly given. Because the regulation is procedural and administrative, it is unlikely to generate significant appellate authority. The 2007 regulations were also in force for ten years without any notable litigation being recorded in the source. This may indicate that parties and courts generally comply with the notice requirements without contest. Alternatively, it may mean that non-compliance is handled informally, such as by adjournment, without a published decision. The user is cautioned not to assume there is no litigation merely because the source does not mention it; but for the purposes of this deep dive, which is grounded only in the source, we must state that the source provides no litigation history. That is a limitation of the regulation itself, not of the analysis. Practitioners should treat this as a gap and conduct their own searches.

Several aspects of the regulation can trip up practitioners if not carefully handled. First, the sunset: the regulations expire on 28 November 2027, ten years after they were made. If a proceeding is ongoing near that date, and the regulations are not remade, the forms will no longer be prescribed. Section 35(1) and section 36(3) of the Act would still require notice, but there would be no prescribed form. That could cause uncertainty about what constitutes valid notice. Practitioners should check whether a replacement regulation is in force. Second, the forms are mandatory in their content but contain optional square bracket instructions. For example, Form 1 includes three alternative statements: you must delete the inapplicable ones. Leaving them in could cause confusion. The form also says "*Delete if not applicable" at the bottom. Failing to delete irrelevant text may lead to an ambiguous notice. Third, the service addresses are specific. The notice to the Attorney-General must be directed to the Victorian Government Solicitor at Level 25, 121 Exhibition Street, Melbourne, or by email to charter@vgso.vic.gov.au. The notice to the Commission must go to the Legal Unit, Level 3, 204 Lygon Street, Carlton, or by email to legal@veohrc.vic.gov.au. Using a different address within the same organisation may result in delay. The regulation does not authorise electronic service beyond these email addresses; if the email addresses change, the regulation as written will be outdated. Fourth, Form 2 requires the court to insert details of the statutory provision and the Charter section. If the court does not identify the provision with sufficient specificity, the Attorney-General and Commission may not be able to assess whether to intervene. Fifth, the regulation does not address what happens if a party fails to give notice but the court nonetheless decides the question. The parent Act says the court must not decide until notice is given, but if the court does decide, that decision may be void or voidable. The regulation does not provide a remedy. Sixth, the accreditation requirement: only NAATI is prescribed. This means an interpreter who is accredited by another body, such as the Australian Institute of Interpreters and Translators, does not satisfy paragraph (a) of the definition. If a party uses such an interpreter, they risk that the interpreter is not a qualified interpreter under the Act. This could be challenged. However, the definition in section 3(1) may have other limbs (paragraph (b) covers other categories); the regulation only deals with paragraph (a). The precise scope of the definition is not in the source, so caution is needed. Seventh, the regulation does not provide for any waiver of the form requirement in urgent cases. If a Charter question arises during an urgent interlocutory hearing, the party must still give notice. This could cause practical difficulties. Eighth, the forms are not available in accessible formats; the regulation does not mention electronic completion or submission. Practitioners should ensure they have the correct version from the Victorian legislation website.

Compliance with this regulation is straightforward but requires attention to detail. A party in a proceeding who raises a Charter question must prepare a notice using Form 1 in Schedule 1. The form should be completed by filling in the square brackets. The party must state clearly which of the three scenarios applies: a question of law relating to the application of the Charter, a question of interpretation of a statutory provision in accordance with the Charter, or a question referred under section 33. Inapplicable options must be deleted. The party must then state specifically the question of law or interpretation and the facts showing the matter is one to which the Charter applies. If there have been any directions or hearing dates from the court, those must be included. The form must be dated and signed. The party must then serve the notice on the Victorian Government Solicitor on behalf of the Attorney-General at the specified street address or email, and on the Victorian Equal Opportunity and Human Rights Commission at its legal unit address or email. The notice must also be given to the Prothonotary of the Supreme Court or Registrar of the Court of Appeal, as applicable, and to all other parties to the proceeding. The regulation does not specify a time limit, but section 35(1) of the Act requires notice before the court decides the question, so it should be given as soon as the question arises. The Supreme Court, when considering a declaration of inconsistent interpretation, must prepare and serve Form 2. The court should identify the relevant statutory provision and the Charter section. The form must be directed to the same recipients as Form 1, and also to other parties. The court must ensure the notice is given before making the declaration. The regulation does not specify whether the notice must be in hard copy or electronic; both are permitted by the inclusion of email addresses. For interpreters, compliance means ensuring that any interpreter used in a Charter proceeding holds current accreditation from NAATI Limited. The regulation does not prescribe how to verify this, but the NAATI website maintains a register. Legal practitioners should confirm accreditation before relying on an interpreter. There is no penalty for non-compliance, but the consequences can be serious: the court may refuse to decide the Charter question, or a declaration may be procedurally invalid. Therefore, the safest approach is to use the prescribed forms exactly as set out, include all required information, and serve on all specified recipients. Practitioners should also keep a copy of the notice and proof of service in the court file. If the regulation is approaching sunset, practitioners should check whether a new regulation has been made. If no new regulation is in force, they may need to seek guidance from the court on an acceptable alternative form of notice.