Charter of Human Rights and Responsibilities Act 2006/Part 3

Charter of Human Rights and Responsibilities Act 2006 - SECT 28

Statements of compatibility

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.

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her 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 his or her 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. Charter of Human Rights and Responsibilities Act 2006 - SECT 29

No effect on Victorian law

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. Charter of Human Rights and Responsibilities Act 2006 - SECT 30

Scrutiny of Acts and Regulations Committee

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 Charter of Human Rights and Responsibilities Act 2006 - SECT 31

Override by Parliament

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.

(3) A member of Parliament who introduces a Bill containing an override declaration, or another member acting on his or her 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 Charter of Human Rights and Responsibilities Act 2006 - SECT 32

Interpretation

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. Charter of Human Rights and Responsibilities Act 2006 - SECT 33

Referral to Supreme Court

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 then 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.

(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. Charter of Human Rights and Responsibilities Act 2006 - SECT 34

Attorney-General's right to intervene

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. Charter of Human Rights and Responsibilities Act 2006 - SECT 35

Notice to Attorney-General and Commission

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. Charter of Human Rights and Responsibilities Act 2006 - SECT 36

Declaration of inconsistent interpretation

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. Charter of Human Rights and Responsibilities Act 2006 - SECT 37

Action on declaration of inconsistent interpretation

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

(b) cause a copy of the declaration and of his or her 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 Charter of Human Rights and Responsibilities Act 2006 - SECT 38

Conduct of 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. Charter of Human Rights and Responsibilities Act 2006 - SECT 39

Legal proceedings

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.