Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2023

The Regulations rely on a small set of legal-concept mechanisms found in Victorian subordinate legislation practice. First, the instrument uses express declaration as the operative means of altering legal coverage: regulation 5 declares that particular entities are not public authorities for the purposes of the Charter Act. The declaration is entity-specific; it does not attempt to redefine the statutory term “public authority” in general or to alter the Charter Act text itself. The regulation therefore functions as a subject-specific exclusion issued under the parent Act’s power (s 46).

Second, the statutory footing is explicit. Regulation 2 identifies section 46 of the Charter of Human Rights and Responsibilities Act 2006 as the authorising provision for the subordinate instrument. The endnotes repeat the making process: the Regulations were made by the Governor in Council on 22 August 2023. That chain,parent Act power, Governor in Council instrument,matters because the Regulations operate as a delegated power exercise that alters the set of entities captured by the Charter Act. The instrument does not purport to exercise the Charter Act itself, only the power conferred to declare bodies not to be public authorities.

Third, the instrument uses revocation as housekeeping. Regulation 4 revokes the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013. The endnote to reg 4 identifies S.R. No. 129/2013 as the instrument revoked. The 2023 instrument thereby replaces the 2013 subordinate instrument. The statutory register will show the 2013 instrument as revoked and the 2023 instrument as the operative subordinate instrument declaring exclusions.

Fourth, temporal and sunset mechanics are present in the endnotes. The text records commencement (regulation 3) on 31 August 2023, while the endnotes note the date of making (22 August 2023) and the automatic sunsetting of the Regulations on 22 August 2033 under the Subordinate Legislation Act 1994. The sunsetting mechanism means the exclusions are not perpetual and will lapse unless remade or extended before that date.

Fifth, the instrument references enabling and interpretive statutes indirectly. The Regulation’s endnotes reproduce interpretive material regarding style changes authorised by the Interpretation of Legislation Act 1984 and related drafting conventions. While these interpretive notes do not alter the meaning of the specific declaratory provision, they confirm that headings, notes and punctuation are to be treated as part of the statutory rule where applicable.

Finally, the substantive legal concept at work is exclusion by declaration. The Regulations do not set out reasons, criteria, or tests for excluding bodies generally; instead, they list two named entities and declare those entities not to be public authorities for the Charter Act. The instrument therefore changes the mapping between statutory bodies and Charter coverage by name and statutory reference, rather than by functional test or parametric amendment.

The Regulations directly affect two named entities and indirectly affect persons and institutions that interact with those entities. The two named entities are:

• the Adult Parole Board established by section 61 of the Corrections Act 1986 (regulation 5(a)); and
• the Youth Parole Board continued in existence by section 442 of the Children, Youth and Families Act 2005 (regulation 5(b)).

Direct effects on those entities arise because they are now, by regulation, excluded from the category of “public authority” for the Charter Act’s purposes. The Regulations themselves frame this change as a declaration; they do not impose new procedural requirements on the boards. Who bears the principal compliance or regulatory consequence therefore depends on the Charter Act’s allocation of duties and remedies to public authorities, a framework the Regulations presume but do not restate. In practice, the two boards will bear the operational consequence of this reclassification: they will no longer be treated as “public authorities” under the Charter Act insofar as the Act’s obligations and mechanisms attach to that label.

Second-order affected actors include prisoners, detainees, young people subject to parole, legal representatives, advocacy groups and administrative decision-makers who engage with or review decisions of those boards. For example, the availability of Charter-based arguments or remedies (if and to the extent those are available only against public authorities under the Charter Act) may change for persons affected by decisions of those boards because the boards are the entities withdrawn from the Charter’s category. The Regulations do not state how existing or future cases are to be handled; they simply remove the named bodies from the Charter Act’s immediate domain.

Other government bodies and agencies that interact with the boards may be indirectly affected in governance and administrative practice. If agencies or officials that previously relied on a Charter framework in interactions with the boards must now apply alternative human-rights or administrative-law frameworks, those agencies will need to adjust processes and guidance. The Regulations do not provide transitional guidance or cross-references.

Finally, the Regulations may affect litigators, compliance officers and counsellors who advise the named boards or their stakeholders. Drafting, policy and training for the two boards will reflect that the boards are no longer classified as “public authorities” under the Charter Act. The endnotes also indicate an administrative lifecycle: the Regulations will sunset 10 years from making unless remade, meaning that affected parties should note the time-limited nature of the exclusion and the potential need for future reassessment.

The Regulations themselves do not create duties or rights. Their operative effect is to remove two entities from the set of bodies that, by definition, fall within the Charter of Human Rights and Responsibilities Act 2006’s category of “public authorities” for the purposes of that Act (regulation 5). Therefore the practical legal effect on duties and rights derives from what the Charter Act attaches to being a public authority; the Regulations operate by excision rather than by articulating new obligations.

Because the instrument is framed as a purposive exclusion, the immediate implication is that duties, obligations and procedural standards that the Charter Act imposes on public authorities,whatever those are under the parent Act,will not apply to the Adult Parole Board and the Youth Parole Board so long as the exclusion stands. The Regulations do not list those Charter duties or rights; they rely on the Charter Act’s substantive scheme and the reader should look to the Act for the content of Charter obligations that are thereby avoided by the boards.

The Regulations do not purport to remove statutory duties that arise under other legislation. The Adult Parole Board remains “established by section 61 of the Corrections Act 1986” and the Youth Parole Board remains continued under s 442 of the Children, Youth and Families Act 2005 (regulation 5). Any duties, decision-making powers, procedural requirements, or statutory obligations that those primary Acts confer on the boards continue to govern the boards’ lawful operation except insofar as the Charter Act’s layer of obligations no longer applies by virtue of the regulatory declaration.

The instrument contains no express savings or transitional clauses preserving Charter rights or remedies for decisions made before commencement. The absence of such provisions in the Regulations means that questions about rights or remedies in respect of pre-commencement actions will need to be resolved by reference to the Charter Act and general principles of statutory interpretation and transitional law rather than to any provision in the Regulations themselves. The Regulations are silent on whether past decisions or ongoing proceedings involving Charter arguments are affected.

The Regulations do not create new private rights of action, procedural statutory review pathways, or criminal or civil penalties. They do not change the statutory foundation of the boards themselves; they change only the Charter coverage classification. Any alteration in the rights of applicants, prisoners or parties to rely on Charter provisions against the two boards flows from the Charter Act’s own structure and the legal consequences it attaches to “public authorities.”

The Regulations do not introduce offences, penalties, or bespoke enforcement mechanisms. They are declaratory subordinate legislation that changes the statutory status of two specific entities. There is no enforcement apparatus embedded in the Regulations themselves. The instrument contains no monetary penalties, criminal sanctions, or administrative penalties, and it creates no new enforcement agency or compliance regime.

Enforcement consequences for conduct that would otherwise be governed by the Charter of Human Rights and Responsibilities Act 2006 are therefore not created by the Regulations; instead, the enforcement landscape is altered only to the extent that the Charter Act’s enforcement, compliance and remedial mechanisms are engaged by the presence or absence of an entity’s “public authority” status. The Regulations do not recite those enforcement mechanisms. To understand enforcement consequences for decisions or actions by the Adult Parole Board and the Youth Parole Board, practitioners must consult the Charter Act for the remedies and enforcement pathways that apply (or do not apply) to public authorities under that Act.

Because the Regulations revoke the 2013 instrument (regulation 4), any enforcement or compliance arrangements that were tied to the 2013 regulations’ definitions or listings are replaced by the 2023 instrument’s content. The Regulations contain no transitional enforcement provisions. The endnotes record the statutory mechanics of subordinate legislation (style, headings, punctuation) but contain no enforcement content.

Finally, administrative oversight of the Regulations themselves follows the usual subordinate-legislation framework. The endnotes state that the Regulations were made by the Governor in Council and will sunset 10 years after the day of making under the Subordinate Legislation Act 1994. The sunset mechanism is an administrative control that limits the Regulations’ temporal validity, but it is not an enforcement mechanism directed at regulated entities.

The Regulations interact directly with three categories of statutes and with delegated-legislation practice.

1. The Charter of Human Rights and Responsibilities Act 2006. The Regulations are expressly made under section 46 of that Act (regulation 2) and operate “for the purposes of” the Charter Act (regulation 1 and regulation 5). They change which entities are included in the Charter Act’s regime by declaring the two parole boards not to be public authorities for the Act’s purposes. The Regulations do not amend the Charter Act itself; they implement an exclusion permitted by the Act’s delegated power.

2. The primary Acts that create or continue the two named boards. Regulation 5 identifies the Adult Parole Board as “established by section 61 of the Corrections Act 1986” and the Youth Parole Board as “continued in existence by section 442 of the Children, Youth and Families Act 2005.” Accordingly, the statutory obligations, powers and procedures in those primary Acts remain in force for the boards. The Regulations do not disturb or alter the statutory architecture of those primary Acts; they only alter the overlay constituted by the Charter Act. Any duties in the Corrections Act 1986 and Children, Youth and Families Act 2005 continue to govern the boards’ functions.

3. The Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013 (S.R. No. 129/2013). Regulation 4 expressly revokes that prior subordinate instrument. The revocation means the 2013 list of excluded entities (or other content of the 2013 instrument) no longer applies, and the 2023 instrument constitutes the operative subordinate instrument on this subject. Practitioners should compare the two instruments to identify any difference in scope or drafting.

The Regulations also interact procedurally with the Subordinate Legislation Act 1994 via the endnote: they will sunset 10 years after making (22 August 2033) (endnotes). This automatic expiry means the exclusions are time-limited, creating an interaction between subordinate-instrument lifecycle controls and the substantive exclusion they effect.

The endnotes’ commentary on the Interpretation of Legislation Act 1984 is procedural rather than substantive. It confirms that headings, examples, notes and punctuation in the Statutory Rule form part of the instrument according to that Act’s style rules. That interaction shapes textual interpretation but does not change the substantive effect of the primary declaratory paragraph in regulation 5.

The Regulations do not purport to affect non-Charter human-rights obligations or duties under Commonwealth law, nor do they make cross-references to administrative law remedies such as judicial review. Where such interactions may arise in practice,for example, overlap between Charter-based arguments and judicial review principles,practitioners must look to the primary statutes and common law; the Regulations are silent on those interactions.

The Regulations contain a short and explicit amendment history in the instrument itself and the endnotes. The relevant facts recorded in the published version are:

• The Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2023 are S.R. No. 88/2023 (cover page).
• The Regulations were made on 22 August 2023 by the Governor in Council under section 46 of the Charter Act (endnotes).
• They came into operation on 31 August 2023 (regulation 3 and endnotes).
• Regulation 4 revokes the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013, which is identified in the endnotes as S.R. No.129/2013.
• The endnotes say there are no amendments made to the 2023 Regulations by subsequent statutory rules, subordinate instruments or Acts (Table of Amendments: section 2). As at the version date (31 August 2023), no later amendments are recorded.
• The endnotes note the statutory lifecycle: the instrument will sunset 10 years after the day of making, i.e., on 22 August 2033, under section 5 of the Subordinate Legislation Act 1994 (endnotes).

There is no internal schedule of prior amendments to the 2023 Regulations because they are newly made and replace the 2013 Regulations by revocation. The published Table of Amendments section states explicitly that there are no amendments to the 2023 Regulations. If future amendments occur they will appear in the statutory register and be recorded in the instrument’s Table of Amendments.

Practitioners must therefore treat the 2013 Regulations as revoked from commencement of the 2023 Regulations, and the 2023 Regulations as the operative subordinate instrument listing the excluded entities for the Charter Act. Any legislative or policy reasons for the replacement are not set out in the body of the Regulations; the only text addressing purpose is the short objective statement in regulation 1.

The Regulations’ text and published endnotes do not record any litigation history. The instrument contains no references to judicial decisions, no mention of ongoing or concluded litigation, and the Table of Amendments records no judicially prompted changes. The absence of litigation references in the instrument is itself the only textually supported statement: there is no litigation material included in the published Regulations.

Because the Regulations are declaratory and do not create new offences or express private causes of action, they are less likely, on their face, to be the immediate subject of enforcement litigation. Nevertheless, legal disputes may arise in future about the implications of the exclusions for particular claims against the Adult Parole Board or the Youth Parole Board,claims that turn on whether Charter obligations apply to those bodies or whether other statutory or common-law remedies remain available. Those possibilities are not reflected in the Regulations’ text and would be matters for future case law, not for the current instrument’s published material.

Practitioners looking for litigation-related precedent or judicial interpretation should note there is no litigation history recorded in this instrument and should therefore search the courts’ databases and judgments for any post-commencement cases that engage the interplay between the Charter Act and the two excluded boards. The Regulations themselves provide no guidance on that point.

The Regulations are short and tightly focused, but their brevity creates several practical risks and interpretive questions that legal advisers and compliance officers should flag.

1. Scope is entity-specific. Regulation 5 lists two named bodies by reference to the statutory provisions that create or continue them. The exclusion applies to the Adult Parole Board "established by section 61 of the Corrections Act 1986" and to the Youth Parole Board "continued in existence by section 442 of the Children, Youth and Families Act 2005." The exclusion is tied to those statutory descriptions. A gotcha arises if the function is performed by a differently constituted body, or if the statutory basis or caption of a board changes. The Regulations do not say how renaming, restructuring or transfer of functions will affect Charter coverage. Practitioners should note that the exclusion is not framed in terms of function; it is framed in terms of the named statutory entity.

2. No transitional or savings text. The Regulations contain no provision addressing actions, decisions or processes that straddle the commencement date. There is no express savings provision preserving Charter rights or remedies for acts done prior to 31 August 2023. That absence could generate disputes about whether pending matters or past decisions remain subject to Charter scrutiny. Because the Regulations are silent, resolution of such disputes will turn on the Charter Act and general transitional law principles rather than on any provision in the Regulations.

3. Revocation of 2013 instrument. Regulation 4 revokes the 2013 Regulations. If the 2013 instrument contained a broader or different set of exclusions or ancillary provisions, those are now displaced. The immediate practical implication is that practitioners must not rely on the 2013 instrument after revocation; they must compare the two instruments to identify any substantive changes in scope. The Regulations do not contain a comparative note.

4. Temporal certainty and sunset. The endnotes record automatic sunsetting on 22 August 2033. This creates a medium-term compliance planning issue: the exclusion is not perpetual and will lapse unless the instrument is remade or a different legislative arrangement is used. Bodies, their advisors and stakeholders should note the expiry date and factor it into forward planning.

5. Interaction with primary statutory obligations. The Regulations do not affect duties in the Corrections Act 1986 or the Children, Youth and Families Act 2005. A practical gotcha is assuming the exclusion removes all human-rights-related constraints; it does not. Other statutory or common-law obligations will remain. The Regulations are narrowly tailored to the Charter Act’s category, not to the universe of legal duties.

6. Administrative practice changes. The removal of Charter classification could prompt internal policy, training, forms, and public-facing materials to be updated. If administrative practice and decision-making systems used the Charter Act as the scaffolding for procedural fairness or record-keeping, those systems will need review. That operational cost is not addressed in the Regulations.

7. Potential uncertainty for third parties. Persons affected by the boards’ decisions may have relied on Charter-based arguments. Post-exclusion, litigators will need to reassess whether equivalent remedies exist under other laws. The Regulations do not provide a roadmap for claimants.

8. Delegated-legislation provenance. The instrument is made under s 46 of the Charter Act by the Governor in Council. There may be political or administrative dynamics around the exercise of that delegated power. The Regulations provide no expositional material on the policy reasons for the specific exclusions.

Compliance in the immediate sense is straightforward because the Regulations are declaratory rather than prescriptive. Nevertheless, affected entities, advisers and stakeholders should take several concrete, source-grounded steps in response to the Regulations’ operative provisions.

1. Update legal status records and governance documents. The Adult Parole Board and the Youth Parole Board should record in their internal governance, legal and compliance registers that, as of 31 August 2023, they are declared not to be public authorities for the purposes of the Charter of Human Rights and Responsibilities Act 2006 (regulation 5; regulation 3). Corporate governance documents, delegation instruments, procedural manuals, and websites should be updated to reflect that classification change and the date it took effect.

2. Review obligations under primary Acts. Because the Regulations do not modify the Corrections Act 1986 or the Children, Youth and Families Act 2005, the boards must continue to comply with all duties imposed by those primary Acts. A compliance checklist should be prepared that distinguishes Charter-related obligations (now excluded) from ongoing statutory duties under the primary Acts.

3. Assess litigation and procedural exposure. Legal teams should audit active matters, reserved decisions and any cases where Charter arguments are relied on to determine how the change in status affects ongoing litigation. Because the Regulations contain no transitional provisions, parties should identify whether Charter-based relief might still be available for pre-commencement acts and seek legal advice based on the Charter Act and general transitional principles.

4. Update policies and training. If the boards previously trained staff or members in Charter obligations, training materials should be revised to reflect the changed landscape. That does not eliminate the need for human-rights-aware decision-making; rather, it requires reframing training around the primary Acts’ procedural requirements and any relevant standards of administrative law.

5. Communicate with stakeholders. Practitioners advising either board should prepare a stakeholder communication plan explaining the change in classification, its effective date, and immediate operational implications. Communications should emphasise that the boards’ statutory foundations remain unchanged and that the exclusion is specific to the Charter Act, per regulation 5.

6. Monitor subordinate-legislation lifecycle. Note the sunset date in the endnotes: the Regulations will sunset 10 years after making, on 22 August 2033, unless remade (endnotes). Compliance teams should flag the expiry in regulatory-calendar systems so that legal and policy officers can evaluate whether to seek re-enactment, amendment, or a different legislative approach in due course.

7. Review related instruments. Because the Regulations revoke the 2013 instrument (regulation 4), compliance teams should review any past procedural guidance, forms or obligations that referenced the 2013 Regulations and ensure those references are updated to the 2023 instrument.

8. Seek legal advice where uncertain. The Regulations present interpretive questions that hinge on the Charter Act’s structure. Practitioners should obtain legal advice on specific cases where the absence of Charter classification may affect the availability of remedies for applicants or third parties.

9. Document decision-making standards. Even though the Charter Act obligations are no longer triggered by label, decision-makers should consider adopting clear internal standards for rights-protective processes where appropriate to manage legal risk and public expectations. Doing so is a matter of good governance rather than an obligation arising from the Regulations.

These steps flow directly from the Regulations’ operative text and endnotes: regulation 5 names the excluded entities; regulation 3 sets commencement; regulation 4 revokes the prior instrument; and the endnotes record the making date and sunsetting date. They do not depend on any unstated amendments to the Charter Act or secondary legislation.