wk 11_vic charter
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Charter of Human Rights and Responsibilities Act 2006 [EXTRACTS
TA!"E #$ %R#&'S'#(S [E)'TE)
Section Page
%ART *+%RE"','(AR-
1. Purpose and citation
5. Human rights in this Charter in addition to other rights andfreedoms
6. Application
%ART 2+H.,A( R'/HTS
7. Human rights—what they are and when they may be limited. !ecognition and e"uality before the law#. !ight to life
1$. Protection from torture and cruel% inhuman or degrading
treatment11. &reedom from forced wor' 1(. &reedom of mo)ement1*. Pri)acy and reputation1+. &reedom of thought% conscience% religion and belief
15. &reedom of e,pression16. Peaceful assembly and freedom of association17. Protection of families and children1. -a'ing part in public life1#. Cultural rights($. Property rights
(1. !ight to liberty and security of person((. Humane treatment when depri)ed of liberty
(*. Children in the criminal process(+. &air hearing(5. !ights in criminal proceedings(6. !ight not to be tried or punished more than once
(7. !etrospecti)e criminal laws
%ART +A%%"'CAT'#( #$ H.,A( R'/HTS '(
&'CT#R'A
)i1ision *+Scrutin of (e3 "egislation
(. tatements of compatibility(#. /o effect on 0ictorian law*$. crutiny of Acts and !egulations Committee
)i1ision 2+#1erride )eclaration
*1. )erride by Parliament
)i1ision +'nterpretation of "a3s
*(. 2nterpretation*6. 3eclaration of inconsistent interpretation*7. Action on declaration of inconsistent interpretation
)i1ision 4+#bligations on %ublic Authorities
*. Conduct of public authorities
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Charter of Human Rights and
Responsibilities Act 20065
4Assented to (5 uly ($$6
%reamble
n behalf of the people of 0ictoria the Parliament
enacts this Charter% recognising that all people are
born free and e"ual in dignity and rights.
-his Charter is founded on the following principles
—
• human rights are essential in a democratic
and inclusi)e society that respects the rule of
law% human dignity% e"uality and freedom
• human rights belong to all people without
discrimination% and the di)ersity of the
people of 0ictoria enhances our community
&ictoria
(o 4 of 2006
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• human rights come with responsibilities and
must be e,ercised in a way that respects the
human rights of others
• human rights ha)e a special importance for
the Aboriginal people of 0ictoria% as
descendants of Australia8s first people% with
their di)erse spiritual% social% cultural and
economic relationship with their traditional
lands and waters.
The %arliament of &ictoria therefore enacts as follo3s7
%ART *+%RE"','(AR-
* %urpose and citation
91: -his Act may be referred to as the Charter of
Human !ights and !esponsibilities and is soreferred to in this Act.
9(: -he main purpose of this Charter is to protect and
promote human rights by—
9a: setting out the human rights that Parliament
specifically see's to protect and promote
and
9b: ensuring that all statutory pro)isions%
whene)er enacted% are interpreted so far as is
possible in a way that is compatible withhuman rights and
9c: imposing an obligation on all public
authorities to act in a way that is compatible
with human rights and
9d: re"uiring statements of compatibility with
human rights to be prepared in respect of all
s *
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;ills introduced into Parliament and
enabling the crutiny of Acts and
!egulations Committee to report on such
compatibility and
9e: conferring <urisdiction on the upreme Court
to declare that a statutory pro)ision cannot
be interpreted consistently with a human
right and re"uiring the rele)ant =inister to
respond to that declaration.
9*: 2n addition% this Charter—
9a: enables Parliament% in e,ceptional
circumstances% to o)erride the application of
the Charter to a statutory pro)ision and
9b: renames the >"ual pportunity Commission
as the 0ictorian >"ual pportunity andHuman !ights Commission and confers
additional functions on it and
9c: ma'es conse"uential amendments to certain
Acts.
?
8 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 law9including international law% the common law% the
Constitution of the Commonwealth and a law of
the Commonwealth: must not be ta'en to be
abrogated or limited only because the right or
freedom is not included in this Charter or is only
partly included.
s 8
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6 Application
91: nly persons ha)e human rights. All persons
ha)e the human rights set out in Part (.
/ote@ Corporations do not ha)e human rights.
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%ART 2+H.,A( R'/HTS
9 Human rights+3hat the are and 3hen the ma
be limited
91: -his Part sets out the human rights that Parliament
specifically see's to protect and promote.
9(: A human right may be sub<ect under law only to
such reasonable limits as can be demonstrably
<ustified in a free and democratic society based on
human dignity% e"uality and freedom% and ta'ing
into account all rele)ant factors including—
9a: the nature of the right and
9b: the importance of the purpose of the
limitation and
9c: the nature and e,tent of the limitation and
9d: the relationship between the limitation and
its purpose and
9e: any less restricti)e means reasonably
a)ailable to achie)e the purpose that the
limitation see's to achie)e.
9*: /othing in this Charter gi)es a person% entity or
public authority a right to limit 9to a greater e,tent
than is pro)ided for in this Charter: or destroy the
human rights of any person.: Recognition and e;ualit before the la3
91: >)ery person has the right to recognition as a
person before the law.
9(: >)ery person has the right to en<oy his or her
human rights without discrimination.
s 9
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9*: >)ery person is e"ual before the law and is
entitled to the e"ual protection of the law without
discrimination and has the right to e"ual and
effecti)e protection against discrimination.
9+: =easures ta'en for the purpose of assisting or
ad)ancing persons or groups of persons
disad)antaged because of discrimination do not
constitute discrimination.
< Right to life
>)ery person has the right to life and has the right
not to be arbitrarily depri)ed of life.
*0 %rotection from torture and cruel= inhuman ordegrading treatment
A person must not be—
9a: sub<ected to torture or
9b: treated or punished in a cruel% inhuman or
degrading way or
9c: sub<ected to medical or scientific
e,perimentation or treatment without his or
her full% free and informed consent.
** $reedom from forced 3or>
91: A person must not be held in sla)ery or ser)itude.
9(: A person must not be made to perform forced or
compulsory labour.
9*: &or the purposes of subBsection 9(: ?forced or
compulsor labour? does not include—
s <
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9a: wor' or ser)ice normally re"uired 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 wor' in
the community or
9b: wor' or ser)ice re"uired because of an
emergency threatening the 0ictorian
community or a part of the 0ictorian
community or
9c: wor' or ser)ice that forms part of normal
ci)il obligations.9+: 2n this section ?court order? includes an order
made by a court of another <urisdiction.
*2 $reedom of mo1ement
>)ery person lawfully within 0ictoria has the
right to mo)e freely within 0ictoria and to enter
and lea)e it and has the freedom to choose where
to li)e.
* %ri1ac and reputation
A person has the right—
9a: not to ha)e his or her pri)acy% family% home
or correspondence unlawfully or arbitrarily
interfered with and
9b: not to ha)e his or her reputation unlawfully
attac'ed.
*4 $reedom of thought= conscience= religion and belief
s *2
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91: >)ery person has the right to freedom of thought%
conscience% religion and belief% including—
9a: the freedom to ha)e or to adopt a religion or
belief of his or her choice and
9b: the freedom to demonstrate his or her
religion or belief in worship% obser)ance%
practice and teaching% either indi)idually or
as part of a community% in public or in
pri)ate.
9(: A person must not be coerced or restrained in a
way that limits his or her freedom to ha)e or adopta religion or belief in worship% obser)ance%
practice or teaching.
*8 $reedom of e@pression
91: >)ery person has the right to hold an opinion
without interference.
9(: >)ery person has the right to freedom of
e,pression which includes the freedom to see'%recei)e and impart information and ideas of all
'inds% whether within or outside 0ictoria and
whether—
9a: orally or
9b: in writing or
9c: in print or
s *8
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9d: by way of art or
9e: in another medium chosen by him or her.
9*: pecial duties and responsibilities are attached to
the right of freedom of e,pression and the right
may be sub<ect to lawful restrictions reasonably
necessary—
9a: to respect the rights and reputation of other
persons or
9b: for the protection of national security% public
order% public health or public morality.
*6 %eaceful assembl and freedom of association
91: >)ery person has the right of peaceful assembly.
9(: >)ery person has the right to freedom of
association with others% including the right to form
and <oin trade unions.
*9 %rotection of families and children
91: &amilies are the fundamental group unit of society
and are entitled to be protected by society and the
tate.
9(: >)ery child has the right% without discrimination%
to such protection as is in his or her best interests
and is needed by him or her by reason of being a
child.
*: Ta>ing part in public life
91: >)ery person in 0ictoria has the right% and is to
ha)e the opportunity% without discrimination% to
s *9
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participate in the conduct of public affairs% directly
or through freely chosen representati)es.
9(: >)ery eligible person has the right% and is to ha)e
the opportunity% without discrimination—
9a: to )ote and be elected at periodic tate and
municipal elections that guarantee the free
e,pression of the will of the electors and
9b: to ha)e access% on general terms of e"uality%
to the 0ictorian public ser)ice and public
office.
*< Cultural rights
91: All persons with a particular cultural% religious%
racial or linguistic bac'ground must not be denied
the right% in community with other persons of that bac'ground% to en<oy his or her culture% to declare
and practise his or her religion and to use his or
her language.
9(: Aboriginal persons hold distinct cultural rights
and must not be denied the right% with other
members of their community—
9a: to en<oy their identity and culture and
9b: to maintain and use their language and
9c: to maintain their 'inship ties and
9d: to maintain their distincti)e spiritual%
material and economic relationship with the
land and waters and other resources with
which they ha)e a connection under
traditional laws and customs.
20 %ropert rights
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A person must not be depri)ed of his or her
property other than in accordance with law.
2* Right to libert and securit of person
91: >)ery person has the right to liberty and security.
9(: A person must not be sub<ected to arbitrary arrest
or detention.
9*: A person must not be depri)ed of his or her liberty
e,cept on grounds% and in accordance with
procedures% established by law.
9+: A person who is arrested or detained must be
informed at the time of arrest or detention of thereason for the arrest or detention and must be
promptly informed about any proceedings to be
brought against him or her.
95: A person who is arrested or detained on a criminal
charge—
9a: must be promptly brought before a court
and
9b: has the right to be brought to trial without
unreasonable delay and9c: must be released if paragraph 9a: or 9b: is not
complied with.
96: A person awaiting trial must not be automatically
detained in custody% but his or her release may be
sub<ect to guarantees to appear—
9a: for trial and
s 20
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9b: at any other stage of the <udicial proceeding
and
9c: if appropriate% for e,ecution of <udgment.
97: Any person depri)ed of liberty by arrest or
detention is entitled to apply to a court for a
declaration or order regarding the lawfulness of
his or her detention% and the court must—
9a: ma'e a decision without delay and
9b: order the release of the person if it finds that
the detention is unlawful.
9: A person must not be imprisoned only because ofhis or her inability to perform a contractual
obligation.
22 Humane treatment 3hen depri1ed of libert
91: All persons depri)ed of liberty must be treated
with humanity and with respect for the inherent
dignity of the human person.
9(: An accused person who is detained or a person
detained without charge must be segregated from
persons who ha)e been con)icted of offences%e,cept where reasonably necessary.
9*: 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
con)icted.
2 Children in the criminal process
s 22
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91: An accused child who is detained or a child
detained without charge must be segregated from
all detained adults.
9(: An accused child must be brought to trial as
"uic'ly as possible.
9*: A child who has been con)icted of an offence
must be treated in a way that is appropriate for his
or her age.
24 $air hearing
91: A person charged with a criminal offence or a
party to a ci)il proceeding has the right to ha)ethe charge or proceeding decided by a competent%
independent and impartial court or tribunal after a
fair and public hearing.
9(: 3espite subBsection 91:% a court or tribunal may
e,clude 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.
/ote@ &or e,ample% section 1# of the Supreme Court
Act *<:6 sets out the circumstances in which theupreme Court may close all or part of a proceeding
to the public. ee also section $AA of the Count
Court Act *<8: and section 1(6 of the ,agistrates
Court Act *<:<.
9*: All <udgments or decisions made by a court or
tribunal in a criminal or ci)il proceeding must be
made public unless the best interests of a child
s 2
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otherwise re"uires or a law other than this Charter
otherwise permits.
28 Rights in criminal proceedings
91: A person charged with a
criminal offence has the right to be presumed innocent until
pro)ed guilty according to law.
9(: A person charged with a criminal offence is
entitled without discrimination to the following
minimum guarantees—
9a: 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 he or she spea's or
understands and
9b: to ha)e ade"uate time and facilities to
prepare his or her defence and to
communicate with a lawyer or ad)isor
chosen by him or her and
9c: to be tried without unreasonable delay and
9d: to be tried in person% and to defend himself
or herself personally or through legal
assistance chosen by him or her or% if
eligible% through legal aid pro)ided by0ictoria egal Aid under the "egal Aid
Act *<9: and
9e: to be told% if he or she does not ha)e legal
assistance% about the right% if eligible% to legal
aid under the "egal Aid Act *<9: and
s 28
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9f: to ha)e legal aid pro)ided if the interests of
<ustice re"uire it% without any costs payable
by him or her if he or she meets the
eligibility criteria set out in the "egal Aid
Act *<9: and
9g: to e,amine% or ha)e e,amined% witnesses
against him or her% unless otherwise pro)ided
for by law and
9h: to obtain the attendance and e,amination of
witnesses on his or her behalf under the same
conditions as witnesses for the prosecution
and
9i: to ha)e the free assistance of an interpreter if
he or she cannot understand or spea'
>nglish and9<: to ha)e the free assistance of assistants and
specialised communication tools and
technology if he or she has communication
or speech difficulties that re"uire such
assistance and
9': not to be compelled to testify against himself
or herself or to confess guilt.
9*: A child charged with a criminal offence has the
right to a procedure that ta'es account of his or
her age and the desirability of promoting thechild8s rehabilitation.
9+: Any person con)icted of a criminal offence has
the right to ha)e the con)iction and any sentence
imposed in respect of it re)iewed by a higher
court in accordance with law.
26 Right not to be tried or punished more than once
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A person must not be tried or punished more than
once for an offence in respect of which he or she
has already been finally con)icted or ac"uitted in
accordance with law.
29 Retrospecti1e criminal la3s
91: 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.
9(: 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.
9*: 2f 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.
9+: /othing 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.
s 26 s 29
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%ART +A%%"'CAT'#( #$ H.,A( R'/HTS '( &'CT#R'A
)i1ision *+Scrutin of (e3 "egislation
2: Statements of compatibilit
91: A member of Parliament who proposes to
introduce a ;ill into a House of Parliament must
cause a statement of compatibility to be prepared
in respect of that ;ill.
9(: A member of Parliament who introduces a ;ill
into a House of Parliament% or another member
acting on his or her behalf% must cause thestatement of compatibility prepared under subB
section 91: to be laid before the House of
Parliament into which the ;ill is introduced before
gi)ing his or her second reading speech on the
;ill.
/ote@ -he obligation in subBsections 91: and 9(: applies to=inisters introducing go)ernment ;ills and members
of Parliament introducing nonBgo)ernment ;ills.
9*: A statement of compatibility must state—
9a: whether% in the member8s opinion% the ;ill iscompatible with human rights and% if so% how
it is compatible and
9b: if% in the member8s opinion% any part of the
;ill is incompatible with human rights% the
nature and e,tent of the incompatibility.
s 2:
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9+: A statement of compatibility made under this
section is not binding on any court or tribunal.
2< (o effect on &ictorian la3
A failure to comply with section ( in relation to
any ;ill that becomes an Act does not affect the
)alidity% operation or enforcement of that Act or of
any other statutory pro)ision.
0 Scrutin of Acts and Regulations Committee
-he crutiny of Acts and !egulations Committee
must consider any ;ill introduced into Parliament
and must report to the Parliament as to whetherthe ;ill is incompatible with human rights.
/ote@ -he crutiny of Acts and !egulations Committeemust also re)iew all statutory rules and report toParliament if it considers the statutory rule to beincompatible with human rights@ see section (1 of the
Subordinate "egislation Act *<<4.
)i1ision 2+#1erride )eclaration
* #1erride b %arliament
91: Parliament may e,pressly declare in an Act thatthat Act or a pro)ision of that Act or another Act
or a pro)ision 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.
9(: 2f an o)erride declaration is made in respect of an
Act or a pro)ision of an Act that declaration must
s 0
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be ta'en to e,tend to any subordinate instrument
made under or for the purpose of that Act or
pro)ision.
9*: A member of Parliament who introduces a ;ill
containing an o)erride declaration% or anothermember acting on his or her behalf% must ma'e a
statement to the egislati)e Council or the
egislati)e Assembly% as the case re"uires%
e,plaining the e,ceptional circumstances that
<ustify the inclusion of the o)erride declaration.
9+: 2t is the intention of Parliament that an o)erride
declaration will only be made in e,ceptional
circumstances.
95: A statement under subBsection 9*: must be made—
9a: during the second reading speech for the ;ill
that contains the o)erride declaration or
9b: after not less than (+ hours8 notice is gi)en of
the intention to ma'e the statement but
before the third reading of the ;ill or
9c: with the lea)e of the egislati)e Council or
the egislati)e Assembly% as the case
re"uires% at any time before the third reading
of the ;ill.
96: 2f an o)erride declaration is made in respect of a
statutory pro)ision% then to the e,tent of the
declaration this Charter has no application to that
pro)ision.
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/ote@ As the Charter has no application to a statutory pro)ision for which an o)erride declaration has beenmade% the upreme Court cannot ma'e a declarationof inconsistent interpretation in respect of thatstatutory pro)ision. Also% the re"uirement under
section *( to interpret that
pro)ision in a way that iscompatible with human rightsdoes not apply.
97: A pro)ision of an Act containing an o)erride
declaration e,pires on the 5th anni)ersary of the
day on which that pro)ision comes into operation
or on such earlier date as may be specified in that
Act.
9: Parliament may% at any time% reBenact an o)erride
declaration% and the pro)isions of this section
apply to any reBenacted declaration.9#: A failure to comply with subBsection 9*: or 95: in
relation to any ;ill that becomes an Act does not
affect the )alidity% operation or enforcement of
that Act or of any other statutory pro)ision.
)i1ision +'nterpretation of "a3s
2 'nterpretation91: o far as it is possible to do so consistently with
their purpose% all statutory pro)isions must be
interpreted in a way that is compatible with
human rights.
9(: 2nternational law and the <udgments of domestic%
foreign and international courts and tribunals
s * s 2
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rele)ant to a human right may be considered in
interpreting a statutory pro)ision.
9*: -his section does not affect the )alidity of—
9a: an Act or pro)ision of an Act that is
incompatible with a human right or
9b: a subordinate instrument or pro)ision 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.
?
6 )eclaration of inconsistent interpretation
91: -his section applies if —
9a: in a upreme Court proceeding a "uestion oflaw arises that relates to the application of
this Charter or a "uestion arises with respect
to the interpretation of a statutory pro)ision
in accordance with this Charter or
9b: the upreme Court has had a "uestion
referred to it under section ** or
9c: an appeal before the Court of Appeal relates
to a "uestion of a 'ind referred to in
paragraph 9a:.
9(: ub<ect to any rele)ant o)erride declaration% if in a
proceeding the upreme Court is of the opinion
that a statutory pro)ision cannot be interpreted
consistently with a human right% the Court may
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ma'e a declaration to that effect in accordance
with this section.
9*: 2f the upreme Court is considering ma'ing a
declaration of inconsistent interpretation% it must
ensure that notice in the prescribed form of that
fact is gi)en to the AttorneyBDeneral and the
Commission.
9+: -he upreme Court must not ma'e a declaration
of inconsistent interpretation unless the Court is
satisfied that—
9a: notice in the prescribed form has been gi)ento the AttorneyBDeneral and the Commission
under subBsection 9*: and
9b: a reasonable opportunity has been gi)en to
the AttorneyBDeneral and the Commission to
inter)ene in the proceeding or to ma'e
submissions in respect of the proposed
declaration of inconsistent interpretation.
95: A declaration of inconsistent interpretation does
not—
9a: affect in any way the )alidity% operation orenforcement of the statutory pro)ision in
respect of which the declaration was made
or
9b: create in any person any legal right or gi)e
rise to any ci)il cause of action.
s 6
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96: -he upreme Court must cause a copy of a
declaration of inconsistent interpretation to be
gi)en to the AttorneyBDeneral—
9a: if the period pro)ided for the lodging of an
appeal in respect of the proceeding in which
the declaration was made has ended without
such an appeal ha)ing been lodged% within
7 days after the end of that period or
9b: if on appeal the declaration is upheld% within
7 days after any appeal has been finalised.E@ample
2f the -rial 3i)ision of the upreme Court ma'es adeclaration of inconsistent interpretation 9based on areferral of a "uestion from 0CA-: and on appeal theCourt of Appeal upholds the declaration% a copy of the
declaration must be sent to the AttorneyBDeneralwithin 7 days after the Court of Appeal8s decision.
97: -he AttorneyBDeneral must% as soon as reasonably
practicable% gi)e a copy of a declaration of
inconsistent interpretation recei)ed under subB
section 96: to the =inister administering thestatutory pro)ision in respect of which the
declaration was made% unless the rele)ant =inister
is the AttorneyBDeneral.
9 Action on declaration of inconsistent interpretation
Eithin 6 months after recei)ing a declaration of
inconsistent interpretation% the =inister
s 9
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Ehere the public authority is acting to gi)e effect to astatutory pro)ision that is incompatible with a human right.
9*: -his section does not apply to an act or decision
of a pri)ate nature.
9+: ubBsection 91: does not re"uire a public
authority to act in a way% or ma'e a decision% thathas the effect of impeding or pre)enting a
religious body 9including 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.
95: 2n this section ?religious bod? means—
9a: a body established for a religious purpose or
9b: an entity that establishes% or directs% controlsor administers% an educational or other
charitable entity that is intended to be% and is%
conducted in accordance with religious
doctrines% beliefs or principles.
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G