Charter of Human Rights and Responsibilities Act 2006/Part 1

Charter of Human Rights and Responsibilities Act 2006 - SECT 1

Purpose and citation

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.

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Commencement

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.

Charter of Human Rights and Responsibilities Act 2006 - SECT 3

Definitions

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; Commission means the Victorian Equal Opportunity and Human Rights Commission under the Equal Opportunity Act 2010; 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); 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; trial, in relation to the Magistrates' Court or the Children's Court, means hearing of a charge;

Victoria Police has the same meaning as the force has in the Police Regulation Act 1958. Note In the Police Regulation Act 1958 the force means officers and other members of the police force.

(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.

Charter of Human Rights and Responsibilities Act 2006 - SECT 4

What is a public authority?

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 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 Chief Executive Officer of the State Services Authority. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices.

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

Notes 1. In section 38 of the Interpretation of Legislation Act 1984 entity is defined to include a person (both a human being and a legal person) and an unincorporated body. 2. See subsection (2) in relation to "functions of a public nature".

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

Example A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the State it is not a public authority for the purposes of this Charter. Note See subsections (4) and (5) in relation to "on behalf of the State or a public authority".

(d) Victoria Police; or

(e) a Council within the meaning of the Local Government Act 1989 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 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 factorsthat 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.

Charter of Human Rights and Responsibilities Act 2006 - SECT 5

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

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.

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Application

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.