Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
Chapter 5
The Victorian Charter of Human Rights and
Responsibilities
1.
OVERVIEW OF THE CHARTER OF HUMAN RIGHTS AND
RESPONSIBILITIES
4
1.1
Overview of Operation
4
1.2
Process
5
2.
INTERPRETING AND APPLYING THE CHARTER
5
2.1
General Principles
5
2.2
Research Methodology for Interpreting and Applying the Charter
7
2.3
International Sources
7
2.4
Regional Sources
9
2.5
Comparative Domestic Sources
2.6
Further International, Regional and Comparative Domestic Jurisprudence and Materials
12
3.
SUBSTANTIVE RIGHTS AND LIMITATIONS
12
3.1
Overview
12
3.2
Limitations on Human Rights
13
3.3
Recognition and Equality Before the Law
17
3.4
Right to Life
19
3.5
Protection from Torture and Cruel, Inhuman or Degrading Treatment
23
3.6
Freedom from Forced Work
28
3.7
Freedom of Movement
29
3.8
Privacy and Reputation
30
3.9
Freedom of Thought, Conscience, Religion and Belief
32
3.10
Freedom of Opinion and Expression
34
10
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
3.11
Peaceful Assembly and Freedom of Association
35
3.12
Protection of Families and Children
37
3.13
Taking Part in Public Life
38
3.14
Cultural Rights
40
3.15
Property Rights
41
3.16
Right to Liberty and Security of Person
42
3.17
Humane Treatment When Deprived of Liberty
45
3.18
Children in the Criminal Process
47
3.19
Fair Hearing
47
3.20
Rights in Criminal Proceedings
58
3.21
Right Not to be Tried or Punished More Than Once
60
3.22
Retrospective Criminal Laws
61
4.
SCRUTINY OF LEGISLATION
61
4.1
Introduction
61
4.2
Statements of Compatibility
62
4.3
Scrutiny of Acts and Regulations Committee
63
5.
OVERRIDE DECLARATIONS
64
5.1
Power to Issue Override Declaration
64
5.2
Effect of Override Declaration
64
5.3
Procedural Elements
65
6.
STATUTORY INTERPRETATION
65
6.1
Requirement that Legislation be Interpreted and Applied Compatibly with Human Rights
65
6.2
Use of International and Comparative Human Rights Law and Jurisprudence
69
6.3
Effect of Incompatibility
70
6.4
Declarations of Inconsistent Interpretation
71
6.5
Referral Process
73
6.6
Attorney-General’s Right of Intervention
73
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
7.
PUBLIC AUTHORITIES
74
7.1
Obligations of and on Public Authorities
74
7.2
Definition of a Public Authority
76
8.
REMEDIES
82
8.1
Legal Proceedings
82
8.2
Ombudsman
85
8.3
Public Officials and Public Servants
85
9.
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION
85
9.1
Expansion of the Commission
85
9.2
The Commissions’ Functions
86
10.
REVIEW OF THE CHARTER
87
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Chapter 5 – The Victorian Charter of Human Rights and
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1.
Overview of the Charter of Human Rights and Responsibilities
1.1
Overview of Operation
The Victorian Charter of Human Rights and Responsibilities (‘the Charter’) establishes a
‘dialogue model’ which seeks to ensure that human rights are taken into account when
developing, interpreting and applying Victorian law and policy without displacing current
constitutional arrangements.
The dialogue between the various arms of government — namely, the legislature, the
executive (which includes ‘public authorities’) and the courts — is facilitated through the
following mechanisms:

Prior to introduction to parliament, bills must be assessed for the purpose of consistency
with the human rights contained within the Charter, and a Statement of Compatibility
tabled with the Bill when it is introduced to Parliament (discussed at Part 4.2 below);

All legislation, including subordinate legislation, introduced to Parliament, must be
considered by the Scrutiny of Acts and Regulations Committee for the purpose of
reporting as to whether the legislation is incompatible with human rights (discussed at
Part 4.3 below);

Public authorities must act compatibly with human rights and also give proper
consideration to human rights in any decision-making process (discussed at Part 7
below);

So far as possible, courts and tribunals must interpret and apply legislation consistently
with human rights (discussed at Part 6.1 below);

The Courts may have regard to relevant international, regional and comparative domestic
human rights law and jurisprudence in the interpretation and application of human rights
(discussed at Part 6.2 below);

The Supreme Court has the power to declare that a law cannot be interpreted and applied
consistently with human rights and to issue a Declaration of Inconsistent Interpretation
(discussed at Part 6.4 below);

The Government must respond to a Declaration of Inconsistent Interpretation within six
months (discussed at Part 6.4 below); and

The Victorian Equal Opportunity and Human Rights Commission has responsibility for
monitoring and reporting on the implementation and operation of the Charter (discussed
at Part 9 below).
The Charter is scheduled to enter into force on 1 January 2007, although the obligation of
public authorities to consider and act consistently with human rights and the powers of the
courts to interpret and apply legislation in accordance with the Charter and to issue
Declarations of Inconsistent Interpretation where this is not possible do not become effective
until 1 January 2008.
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
1.2
Process
Until the Human Rights Act 2004 (ACT) came into force in the Australian Capital Territory on 1
July 2004, there was no comprehensive legislative protection for human rights in Australia, at
either a federal or state level. At the time, many hoped that the introduction of this legislation
in the ACT would be the catalyst for other states to follow suit. This has in fact proven to be
the case, with the NSW, Tasmanian and Western Australian Governments expressing interest
in exploring whether or not such legislation is favoured by their constituents. In Victoria,
developments have progressed much further, culminating in the enactment of the Charter of
Human Rights and Responsibilities Act 2006 (Vic) in July 2006.
Exploring the need for a Charter of Rights in Victoria was a major initiative of the Justice
Statement released by the Victorian Attorney-General, Rob Hulls, in 2004. On 18 April 2005,
the Attorney-General announced the establishment of a Human Rights Consultation
Committee (‘the Committee’), which was given until the end of November 2005 to report on
whether there was a need for legislative protection of human rights in Victoria.
The Committee sought written submissions from the community (it received 2524), and
conducted a series of information sessions, forums and consultations with the Victorian
community, government and other bodies. The Committee’s 190 page report, launched by the
Attorney-General on 20 December 2005, concluded that a substantial majority of Victorians
wished their human rights to be better protected by law, and included a draft Charter based
upon the results of its consultations.
2.
Interpreting and Applying the Charter
2.1
General Principles
The following overarching principles should be considered in the interpretation and application
of the Charter.

The human rights contained in the Charter are largely modelled on the civil and political
human rights enshrined in the International Covenant on Civil and Political Rights
(‘ICCPR’).1 Many of these civil and political rights have also been enshrined in regional
human rights instruments (such as the European Convention on Human Rights) and
domestic human rights instruments (such as the United Kingdom Human Rights Act
1998). There is a vast body of international and comparative jurisprudence that can and
should therefore be considered in the elucidation of the content and application of the
Charter. This is particularly so given the well established principle that ‘when treaty
obligations are incorporated into domestic law, the obligation should be construed by
reference to the principles of international law governing its interpretation, rather than any
1
Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
5
Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
domestic principle of construction’.2 A research methodology for the identification of such
jurisprudence is detailed at Part 2 below.

The Charter is founded on the principle that human rights are essential in a democratic
and inclusive society that respects the rule of law, human dignity, equality and freedom.
Having regard to this, the rights should be interpreted broadly. 3 In situations where a
person alleges that their rights have been breached, the rights should be interpreted in
favour of that person, particularly where they bear on issues of civil liberty, equality or
human dignity.4 The UN Human Rights Committee (‘HRC’) has, on a number of
occasions, been critical of the tendency of states to interpret and apply rights too
narrowly.5

The rights should be interpreted and applied in a manner which renders them ‘practical
and effective, not theoretical and illusory’. 6

Consistently with the nature of human rights obligations articulated by the HRC (namely,
that states have obligations to respect, protect and fulfil human rights, as discussed in
Chapter 3)7 and the approach adopted by UK courts under the Human Rights Act 1998
(UK) and the European Court of Human Rights under the European Convention on
Human Rights,8 rights may impose both negative and positive obligations on public
authorities. The right to life, for example, may require public authorities to not only refrain
from taking life but to take measures to protect human life.

The Charter is a ‘living document’ which should be interpreted and applied in the context
of contemporary and evolving values and standards.9 The European Court of Human
Rights has stated that:
Richard Clayton QC, ‘The Human Rights Act Six Years On: Where are We Now?’ [2007] 1 European Human
Rights Law Review citing Re H [1998] AC 72, 87 (per Lord Browne-Wilkinson). See also R (on the application of
Marper) v Chief Constable of Yorkshire [2004] UKHL 39, [27] (per Lord Steyn).
2
3
See, eg, Hunter et al v Southam Inc [1984] 2 SCR 145.
4
See generally, Conor Gearty, Principles of Human Rights Adjudication (2004).
5
See, eg, HRC, General Comment No 6: The Right to Life (1982) [5], available from
http://www.ohchr.org/english/bodies/hrc/comments.htm.
6
Goodwin v United Kingdom (2002) 35 EHRR 447, [73]-[74]. See also Airey v Ireland (1979) 2 EHRR 305, 314.
7
See,eg, HRC, General Comment 3: Implementation at the National Level, UN Doc HRI\GEN\1\Rev.1 (1981)
available at http://www.ohchr.org/english/bodies/hrc/comments.htm in which the HRC stated:
The Committee considers it necessary to draw the attention of States parties to the fact that the
obligation under the Covenant is not confined to the respect of human rights, but that States parties
have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction.
This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights.
8
See, eg, Marckx v Belgium (1979) 2 EHRR 330; Gaskin v United Kingdom (1989) 12 EHRR 36; Airey v Ireland
(1979) 2 EHRR 305; Plattform Artze fur das Leben v Austria (1988) 13 EHRR 204.
9
See, eg, Tyrer v United Kingdom (1978) 2 EHRR 1, 10 for an articulation of this principle in relation to the
European Convention on Human Rights. See Hunter et al v Southam Inc [1984] 2 SCR 145 and Carter v
Saskatchewan (Attorney General) [1991] 2 SCR 158 in relation to the Canadian Charter of Rights and Freedoms.
See also R v Asfaw [2008] UKHL 31 (21 May 2008), [55].
6
Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
The Convention is a living instrument which must be interpreted in light of present day
conditions…the increasingly high standard being required in the area of the protection
of human rights and fundamental liberties correspondingly and inevitably requires
firmness in assessing breaches of the fundamental values of democratic societies. 10

Recognising that human rights are interdependent and indivisible, the rights should be
read so as to complement and reinforce each other.11
The principles relating to the interpretation and application of human rights instruments are
discussed more fully in Part 6 of Chapter 2 of this Manual.
2.2
Research Methodology for Interpreting and Applying the Charter
As discussed above, the human rights contained in the Charter are largely modelled on
provisions of the ICCPR. These provisions are also replicated in a range of regional and
domestic human rights instruments, such as the Human Rights Act 1998 (UK). Pursuant to s
32(2) of the Charter (which provides that ‘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’), the considerable jurisprudence developed under these
instruments can and should be considered in determining the content and application of
Charter provisions.
Set out below is a selection of key international and comparative jurisprudential sources.
2.3
International Sources
(a)
International Covenant on Civil and Political Rights – UN Human Rights
Committee
The ICCPR enshrines a body of civil and political rights, many of which are mirrored in the
Charter.
As discussed in Chapter 2, the HRC is responsible for monitoring implementation of, and
compliance with, the ICCPR. Pursuant to the First Optional Protocol to the ICCPR, the HRC
also has jurisdiction to hear complaints from individuals who claim that their human rights have
been violated by a State party to that Protocol.
Through these functions, the HRC has generated significant jurisprudence regarding the
substantive content and application of civil and political rights; it is a ‘judicial body of high
standing’.12 The jurisprudence of the HRC is likely to be particularly influential to the
interpretation and application of the Charter. The substantive rights contained within the
Charter are primarily sourced from the ICCPR. It is an accepted principle of domestic law that
it is legitimate to have regard to the opinions and decisions of bodies established to receive
10
Selmouni v France (2000) 29 EHRR 403, [101].
11
See, eg, Dubois v R [1985] 2 SCR 350.
12
Tavita v Minister of Immigration [1994] 2 NZLR 257. See also Cornwell v The Queen [2007] HCA 12 (22 March
2007) [175]-[176] (Kirby J); Re Woolleys [2004] HCA 49, [108]-[109] (McHugh J).
7
Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
reports or determine claims under the treaty over which it has jurisdiction.13 It is also well
established that it is desirable, as far as possible, that expressions used in international
agreements be construed in a uniform and consistent manner by both municipal courts and
international courts and panels.14
The following sources of HRC jurisprudence, in particular, may be relevant to the Charter:

General Comments – A General Comment is an authoritative interpretation of the content
of a human rights provision of the ICCPR. As at 5 September 2007, the HRC had issued
32 General Comments. General Comments are available at
http://www.ohchr.org/english/bodies/hrc/comments.htm

Views on Individual Communications – Views on Individual Communications are decisions
made under the First Optional Protocol and an important source of jurisprudence. Views
on Individual Communications are available at
http://www.bayefsky.com/docs.php/area/jurisprudence/node/3/treaty/ccpr/opt/0 or at
http://www1.umn.edu/humanrts/undocs/allundocs.html.

Concluding Observations – Concluding Observations are findings and recommendations
by the HRC in relation to State party implementation of the ICCPR. Again, they are an
important source of jurisprudence. Concluding Observations are available at
http://www.bayefsky.com/docs.php/area/conclobs/node/2/treaty/ccpr/opt/0 or at
http://www1.umn.edu/humanrts/hrcommittee/hrc-country.html
The Bayefsky website also contains summaries of HRC jurisprudence (including General
Comments, Views and Concluding Observations):

by treaty article at http://www.bayefsky.com/bytheme.php/index/article/treaty/CCPR; and

by theme at http://www.bayefsky.com/bytheme.php/index/theme.
Much of the HRC’s jurisprudence is also summarised, by article, in:

Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil
and Political Rights: Cases Material and Commentary (2nd ed, 2004); and

Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd ed,
2004).
(b)
International Covenant on Civil and Political Rights – UN Special Rapporteurs
The UN Human Rights Council has also appointed a number of UN Special Rapporteurs (or
independent experts) with thematic mandates in areas of civil and political rights under the
ICCPR. Among other things, these Special Rapporteurs are responsible for developing the
normative content of human rights within their mandate, including by preparing and publishing
13
See, eg, Commonwealth v Bradley (1999) 95 FCR 218, 237 [39] per Black CJ; Commonwealth v Hamilton
(2000) 108 FCR 378, 387 [36], 388 [39].
14
See, eg, Rocklea Spinning Mills Pty Ltd v Anti Dumping Authority (1995) 56 FCR 406, 421E; Povey v Qantas
Airways Ltd (2005) 216 ALR 427, 433 [25] per Gleeson CJ, Gummow, Hayne and Heydon JJ; R v Asfaw [2008]
UKHL 31 (21 May 2008), [55]; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 657B.
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
annual reports and thematic reports. Special Rapporteurs have been appointed, and
developed jurisprudence and standards, in the following areas, among others, relevant to the
Charter:

Arbitrary detention (http://www.ohchr.org/english/issues/detention/index.htm);

Freedom of opinion and expression
(http://www.ohchr.org/english/issues/opinion/index.htm);

Freedom of religion or belief (http://www.ohchr.org/english/issues/religion/index.htm);

Minority issues (http://www.ohchr.org/english/issues/minorities/expert/index.htm); and

Torture and other cruel, inhuman or degrading treatment or punishment
(http://www.ohchr.org/english/issues/torture/rapporteur/index.htm).
(c)
Other International Human Rights Bodies
In addition to being enshrined in the ICCPR, there are a range of specific civil and political
rights contained in other international human rights instruments, including:

International Covenant on Economic Social and Cultural Rights;

International Convention on the Elimination of all Forms of Racial Discrimination;

Convention on the Elimination of all Forms of Discrimination against Women;

Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment
or Punishment;

Convention on the Rights of the Child;

Convention relating to the Status of Refugees; and

International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families.
Where relevant, it may therefore be necessary to consider the General Comments, Views and
Concluding Observations of those bodies. The following websites are useful in this regard:
2.4

http://www.ohchr.org/english/bodies/index.htm

http://www.bayefsky.com/

http://www1.umn.edu/humanrts/un-orgs.htm
Regional Sources
(a)
European Convention on Human Rights
The European Convention on Human Rights contains a range of civil and political rights that
are similar in content and form to those contained in the Charter.
The European Court of Human Rights in Strasbourg is the supreme court for the adjudication
of matters under the European Convention.
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Chapter 5 – The Victorian Charter of Human Rights and
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For jurisprudence and case law from the European Court, see:

http://www.worldlii.org/eu/cases/ECHR/; or

http://www.echr.coe.int/.
Much of the case law has also been summarised in:

H Clayton QC and R Tomlinson, The Law of Human Rights (2000);

Lord Lester and D Pannick, Human Rights Law and Practice (2nd ed, 2004); and

D Harris, M O’Boyle and C Warbick, Law of the European Convention on Human Rights
(1995).
(b)
Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights is responsible for the determination of
matters arising under the American Declaration of the Rights and Duties of Man and the
American Convention on Human Rights. Both of these instruments enshrine a range of civil
and political rights of similar content and form to those in the Charter. For case law and
analysis of these human rights, see:

the Commission’s website at http://www.cidh.oas.org/DefaultE.htm; and

the University of Minnesota Human Rights Library at
http://www1.umn.edu/humanrts/cases/commissn.htm.
(c)
African Commission on Human and Peoples’ Rights
The African Commission is charged with three major functions:

the promotion of human and peoples' rights;

the promotion of human and peoples' rights; and

the interpretation of the African Charter on Human and Peoples' Rights.
For information, documentation and jurisprudence from the African Commission, see
http://www.achpr.org/english/_info/news_en.html
2.5
Comparative Domestic Sources
Pursuant to s 32(2) of the Charter, comparative domestic human rights jurisprudence may
also be relevant to the interpretation and application of Charter rights. An excellent source of
comparative domestic human rights jurisprudence is www.interights.org, which includes a
searchable database of international and Commonwealth human rights law and jurisprudence.
Given that the Charter is modelled on similar human rights instruments in the ACT, the United
Kingdom, New Zealand and Canada, jurisprudence from each of those jurisdictions is likely to
be particularly useful and relevant to the interpretation and application of the Charter.
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Chapter 5 – The Victorian Charter of Human Rights and
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Below is a list of online resources for jurisprudence and case law from each of those
jurisdictions.
(a)
Australian Capital Territory: Human Rights Act 2004 (ACT)

ACT Human Rights Act Research Project – http://acthra.anu.edu.au/

ACT Human Rights Office – http://www.hro.act.gov.au/index.html

ACT Department of Justice Human Rights Act Website –
http://www.jcs.act.gov.au/humanrightsact/indexbor.html
(b)

United Kingdom – Human Rights Act 1998 (UK)
Department for Constitutional Affairs, A Guide to the Human Rights Act 1998 (3rd ed,
2006) – http://www.dca.gov.uk/peoples-rights/human-rights/pdf/act-studyguide.pdf

Liberty Guide to Human Rights under the Act – www.yourrights.org.uk

One Crown Office Row Human Rights Update – http://www.humanrights.org.uk/5/

Doughty Street Chambers Human Rights Practice –
www.doughtystreet.co.uk/human_rights/index.cfm

Department for Constitutional Affairs - http://www.dca.gov.uk/peoples-rights/humanrights/index.htm

(c)
M Amos, Human Rights Law (2006)
New Zealand – New Zealand Bill of Rights Act 1990

New Zealand Human Rights Network – http://www.humanrights.net.nz/

New Zealand Human Rights Commission – http://www.hrc.co.nz/home/default.php

New Zealand Department of Justice – http://www.justice.govt.nz/pubs/reports/2004/billof-rights-guidelines/index.html
(d)

Canada – Canadian Charter of Rights and Freedoms 1982
Canadian Charter of Rights Decisions Digest –
http://www.canlii.org/en/ca/charter_digest/index.html

Inside the Canadian Charter of Rights and Freedoms –
http://www.charterofrights.ca/en/11_00_01.
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Chapter 5 – The Victorian Charter of Human Rights and
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2.6
Further International, Regional and Comparative Domestic Jurisprudence and Materials
For further international, regional and comparative domestic human rights cases, commentary,
analysis, articles and research links, visit the Human Rights Law Resource Centre online
‘Human Rights Library’ at www.hrlrc.org.au
3.
Substantive Rights and Limitations
3.1
Overview
The substantive rights recognised in the Charter are contained in Part 2 of the Act.
The rights protected by the Charter include:

right to equality before the law;

right to life;

right to protection from torture and cruel, inhuman or degrading treatment or punishment;

freedom from forced work;

freedom of movement;

right to privacy and protection of reputation;

freedom of thought, conscience religion and belief;

freedom of assembly;

right to peaceful assembly and freedom of association;

right to protection of families and children;

right to take part in public life;

cultural rights;

property rights;

right to liberty and security of person;

right to humane treatment when deprived of liberty;

right to a fair hearing;

certain rights in criminal proceedings;

right not to be punished more than once; and

protection from retrospective laws.
As discussed above, the substantive and normative content of these rights is likely to be
developed by reference to an established body of international, regional and comparative
domestic human rights jurisprudence. The discussion of the content and application of the
rights at Parts 3.3 to 3.22 below is based primarily on HRC jurisprudence and is not intended
12
Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
to be comprehensive or exhaustive. The full content and application of the rights should be
determined by applying the research methodology discussed at Parts 2.1 to 2.6 above.
3.2
Limitations on Human Rights
At international law, it is well established that some human rights are absolute while, in certain
circumstances and subject to certain conditions, other human rights may be limited.
Reflecting this, the Charter contains a limitation provision, s 7, which is modelled on broadly
equivalent provisions in s 5 New Zealand Bill of Rights Act 1990 (NZ) and s 36 of the South
African Bill of Rights contained in the Constitution of the Republic of South Africa 1996.
Section 7 of the Charter provides that ‘[a] human right may be subject under law only to such
reasonable limits as can be demonstrably justified in a free and democratic society based on
human dignity, equality and freedom and taking into account all relevant factors’. According
to the Explanatory Memorandum, the section ‘reflects Parliament’s intention that human rights
are, in general, not absolute rights, but must be balanced against each other and against
other competing public interests’.15
(a)
Non-Derogable Rights
Although, unlike many other human rights instruments, the Charter does not provide that
certain rights are non-derogable, the preferable view is that, consistently with art 4(2) of the
ICCPR, certain human rights are absolute and must not be subject to limitation or
derogation.16 Pursuant to art 4(2) of the ICCPR, these rights include:

the right to life (art 6);

the right to freedom from torture and other cruel, inhuman or degrading treatment or
punishment (art 7);

the right to freedom from slavery or forced labour (art 8);

the right not to be imprisoned for a contractual debt (art 11);

freedom from retrospective criminal punishment (art 15);

the right to recognition as a person before the law (art 16); and

freedom of thought, conscience and religion (art 18).
In General Comment 29, the HRC posited that, in addition to those rights identified in art 4(2)
the following further rights may not be lawfully derogated because to do so would be
inherently inconsistent with the ICCPR or because they have attained the status of peremptory
norms of customary international law:
15
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 8.
See, eg, United States v Burns [2001] 1 SCR 283 in which the Supreme Court of Canada stated that ‘Canada's
international human rights obligations should inform not only the interpretation of the content of the rights
guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1
objectives which may justify restrictions upon those rights.’
16
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities

the right of persons deprived of liberty to be treated with humanity and with respect for the
inherent dignity of the human person (art 10);

the prohibition against taking of hostages, abductions or unacknowledged detention;

fundamental principles of the right to a fair trial, including the presumption of innocence
(art 14);

the prohibition against incitement to discrimination, hostility or violence (art 20); and

the obligation to provide ‘effective remedies’ for breaches of human rights (art 2(3)). 17
Similarly to the ICCPR, art 37(5) of the South African Bill of Rights provides that components
of particular human rights are non-derogable, including in relation to:

the right to equality;

the right to human dignity;

the right to life;

the right to freedom and security of the person;

certain children’s rights; and

certain rights of arrested, detained and accused persons.
Section 5 of the Charter recognises that rights or freedoms arising in international law must
not be taken to have been abrogated or limited only because the right or freedom is not
included in the Charter. Thus, even though the Charter does not explicitly recognise any right
to be non-derogable, the preferable approach is that those rights which international law
recognises as not subject to derogation or limitation should be treated as such pursuant to the
Charter.
(b)
Permissible Limitations on Human Rights under International Human Rights
Law
International human rights law provides that, in respect of rights that are not absolute,
limitations are only permissible in certain circumstances and subject to particular conditions.
In General Comment 31, the HRC stated that, where limitations or restrictions are made,
States must demonstrate their necessity and only take such measures as are
proportionate to the pursuance of legitimate aims in order to ensure continuous and
effective protection of Covenant rights. In no case may the restrictions be applied or
invoked in a manner that would impair the essence of a Covenant right. 18
The general principles relating to the justification and extent of limitations have been further
developed by the UN Economic and Social Council in the Siracusa Principles on the
17
HRC, General Comment 29: States of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11 (2001) [11]–
[16].
18
HRC, General Comment 31: Nature of the General Legal Obligation Imposed on States Parties to the
Covenant, UN Doc CCPR/C/21/Rev.1/Add13 (2004) [6].
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Chapter 5 – The Victorian Charter of Human Rights and
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Limitation and Derogation Provisions in the International Covenant on Civil and Political
Rights. Those principles include that:

no limitations or grounds for applying them may be inconsistent with the essence of the
ICCPR or the particular right concerned;

all limitation clauses should be interpreted strictly and in favour of the rights at issue;

any limitation must be provided for by law and be compatible with the objects and
purposes of the ICCPR;

limitations must not be arbitrary or unreasonable;

limitations must be subject to challenge and review;

limitations must not discriminate on a prohibited ground;

any limitation must be ‘necessary’, which requires that it:
o
is based on one of the grounds which permit limitations (namely, public order,
public health, public morals, national security, public safety or the rights and
freedoms of others);
(c)
o
responds to a pressing need;
o
pursues a legitimate aim; and
o
is proportionate to that aim.19
Permissible Limitations under the Charter
As discussed above, s 7(2) of the Charter provides that:
A human right may be subject under law only to such reasonable limits as can be
demonstrably justified in a free and democratic society20 based on human dignity,
equality and freedom and taking into account all relevant factors.
Section 7(2) also sets out an inclusive list of factors:

the nature of the right;
o
While there is no ‘hierarchy’ of rights as such, human rights that are considered
absolute and non-derogable under international law, such as the prohibition on
torture, would clearly require a much higher level of justification so far as
limitations are concerned than, say, the right to freedom of expression.

the importance of the purpose of the limitation;
o
The limitation must fulfil a pressing need and pursue a legitimate aim;21
19
UN Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (1985).
According to the Supreme Court of Canada, the values of a ‘free and democratic society’ include: respect for
the inherent dignity of the human person, social justice, equality, accommodation of a plurality of beliefs, and
respect for cultural and group identity: R v Oakes [1986] 1 SCR 103, 136.
20
15
Chapter 5 – The Victorian Charter of Human Rights and
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o
The aim sought to be achieved should be ‘specific’ and not merely general and
must be compelling and important, not ‘trivial’.22
o
It is the aim of the limit itself that should be the subject of scrutiny rather than the
aim of the law as a whole.23
o

the nature and extent of the limitation;
o

Financial considerations in and of themselves will almost never constitute a
legitimate aim or justify a limitation on human rights.24
The limitation must be proportionate;25
the relationship between the limitation and its purpose;
o
The limitation must be reasonably, rationally and by evidence connected to the
aim. It should be accompanied by ‘relevant and sufficient reasons’. 26 It should
not be, or operate in a way which is, arbitrary, unfair or not based on rational
considerations.27

any less restrictive means reasonably available to achieve the purpose that the limitation
seeks to achieve.
o
This involves a consideration of whether the objective of the limitation be
achieved in a way that does not interfere with, or interferes less with, human
rights.28
It is desirable that, so far as possible, the s 7 limitation provision be interpreted and applied
consistently with international law and the Siracusa Principles.29
21
See, eg, Derbyshire County Council v Times Newspapers [1993] AC 534, 550; Handyside v UK [1976] 1 EHRR
737. See also R v Oakes [1986] 1 SCR 103, in which the Supreme Court of Canada stated that the aim must be
‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’, which required that it
must ‘relate to concerns which are pressing and substantial’.
22
See, eg, Zundel v R [1992] SCR 731.
23
See, eg, RJR-MacDonald Inc v Canada [1995] 3 SCR 199, 335.
24
See, eg, Newfoundland (Treasury Board) v NAPE [2004] 3 SCR 38; Reference re Remuneration of Judges of
the Provincial Court of Prince Edward Island [1997] 3 SCR 3.
25
See, eg, Stanková v Slovakia [2007] ECHR 7205/02 (9 October 2007).
26
See, eg, Stanková v Slovakia [2007] ECHR 7205/02 (9 October 2007).
27
See, eg, R v Oakes [1986] 1 SCR 103, 139.
28
These factors are drawn from s 36(1) of the South African Constitution which, in turn, was informed by the
decision of Chaskalson P in State v Makwanyane (1995) Case No CCT/3/04 (Constitutional Court of the Republic
of South Africa) where it was stated at [104] that:
The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic
society involves the weighing up of competing values, and ultimately an assessment based on
proportionality…[P]roportionality…calls for the balancing of different interests. In the balancing process,
the relevant considerations will include the nature of the right that is limited, and its importance to an
open and democratic society based on freedom and equality; the purpose for which the right is limited
and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and
particularly where the limitation has to be necessary, whether the desired ends could reasonably be
achieved through other means less damaging to the right in question.
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Chapter 5 – The Victorian Charter of Human Rights and
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It is also desirable that s 7 be interpreted so as to place the burden of proof in relation to the
permissibility of a limitation on the party arguing that the limitation is justified and
proportionate and that the ‘demonstrable justification’ require a ‘very high degree of probablity’
and evidence.30
Section 7 also provides that the Charter should not be interpreted as giving a person, entity or
public authority a right to limit or to destroy the human rights of any person. This provision
was included to safeguard against the possibility that the Charter might be misused to destroy
or limit human rights.31 For example, the right to freedom of expression should not be used to
destroy the right to privacy. Rather, a balancing exercise is envisaged.
3.3
Recognition and Equality Before the Law
The right to equality and freedom from discrimination is an integral component of the
international human rights normative framework and is entrenched in both the ICCPR and
ICESCR.32
Reflecting the importance of the norm, s 8 of the Charter sets out a range of equality rights.
Specifically, it provides that every person:

has the right to recognition as a person before the law;33

has the right to enjoy his or her human rights without discrimination;34 and

is equal before the law, is entitled to the equal protection of the law without discrimination
and has the right to equal and effective protection against discrimination.35
Section 8(4) further states that measures taken to assist disadvantaged groups because of
discrimination do not themselves amount to discrimination. The purpose of this provision is to
recognise that substantive equality is not necessarily achieved by treating everyone equally,
See, eg, United States v Burns [2001] 1 SCR 283 in which the Supreme Court of Canada stated that ‘Canada's
international human rights obligations should inform not only the interpretation of the content of the rights
guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1
objectives which may justify restrictions upon those rights.’
29
30
See,eg, R v Oakes [1986] 1 SCR 103, 105, 136-7; Minister of Transport v Noort [1992] 3 NZLR 260, 283; Moise
v Transitional Land Council of Greater Germiston 2001 (4) SA 491 (CC), [19]. See also P Hogg, Constitutional
Law of Canada (2004) 795-6.
31
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 8.
32
CESCR, Substantive Issues Arising in the Implementation of the International Covenant in Economic, Social
and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights, UN Doc
E/C.12/2001/10 (2001) 3. See also ICCPR, above n 1, arts 2(1), 26; ICESCR art 2(2).
33
Section 8(1), modelled on art 16 of the ICCPR, above n 1.
34
Section 8(2), modelled on art 2(1) of the ICCPR, above n 1.
35
Section 8(3), modelled on art 26 of the ICCPR, above n 1. For HRC jurisprudence on the right to nondiscrimination and equality before the law, see HRC, General Comment 18: Non-Discrimination (1989), available
from http://www.ohchr.org/english/bodies/hrc/comments.htm. See also
http://www.bayefsky.com/bytheme.php/id/856.
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and that special measures may be required to achieve equality for some groups in the
community.36
The definition of ‘discrimination’ in the Charter has the same meaning as provided in the
Equal Opportunity Act 1995 (Vic).37 Thus, for the purpose of the Charter, discrimination is
less favourable treatment on the grounds of a ‘protected attribute’, or the imposition of an
unreasonable requirement condition or practice with which people with a particular attribute
may have difficulty complying. ‘Protected attributes’ include: age; breastfeeding; gender
identity; impairment; industrial activity; lawful sexual activity; marital status; parental or carer
status or status; physical features; political belief or activity; pregnancy; race; religious belief
or activity; sex; and sexual orientation.
Having regard to comparative and international law regarding the right to equality and nondiscrimination, the likely interpretations and applications of s 8 seem to include the following.
First, pursuant to s 8(2), it is unlawful to discriminate against a person in any area that falls
within the wide ‘ambit’ of a relevant human right even though there may not be any violation of
that right.38 The application of s 8(2) does not presuppose a breach of any of the Charter’s
substantive provisions. A measure which itself conforms with the other human rights in the
Charter may nevertheless violate s 8(2) if it is discriminatory. Thus, in a UK case concerning
treatment in detention, the House of Lords held that, notwithstanding that the detention
involved did not violate any of the substantive rights of the European Convention, the
detention did fall within the ‘ambit’ of the right to liberty and security such as to engage the
prohibition on discrimination in the enjoyment of this right. 39 On this issue, the House of Lords
followed the European Court of Human Rights in Stec v United Kingdom40 where the Court
stated that:
Article 14 (the prohibition on discrimination) complements the other substantive
provisions of the Convention and the Protocols. It has no independent existence
since it has effect solely in relation to 'the enjoyment of the rights and freedoms'
safeguarded by those provisions. The application of Article 14 does not necessarily
36
This provision is modelled on s 19(2) of the New Zealand New Zealand Bill of Rights Act 1990 (NZ).
37
The accompanying note to the definition of discrimination in s 3(1) of the Charter notes that s 6 of the Equal
Opportunity Act 1995 (Vic) lists a number of attributes in respect of which discrimination is prohibited. Some of
these attributes are listed in the note, however this list is not exhaustive. Therefore, it will be necessary to refer to
the Equal Opportunity Act 1995 (Vic) when interpreting the meaning of discrimination in the Charter.
38
Looking at the equivalent provision of the Human Rights Act 1998 (UK), the Court of Appeal considered that
four questions should be asked:
1.
Do the facts fall within the ambit of one of more of the substantive provisions?
2.
If so, was there different treatment as between the complainant and other comparators?
3.
Were the comparators in an analogous situation to the complainant?
4.
If so, did the differential treatment pursue a legitimate aim and bear a reasonable relationship of
proportionality to the aim?: Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271,
[20]; [2003] 1 WLR 617, 625.
39
R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54 (13 December
2006).
40
(2005) 41 EHRR SE 295, [38].
18
Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
presuppose the violation of one of the substantive rights guaranteed by the
Convention…it is also sufficient for the facts of the case to fall 'within the ambit' of one
or more of the Convention Articles.
The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of
the rights and freedoms which the Convention and Protocols require each State to
guarantee. It applies also to those additional rights, falling within the general scope of
any Convention article, for which the State has voluntarily decided to provide.
Second, pursuant to s 8(3), there is an immediate obligation on the government and public
authorities to ensure that legislation, policies and programs prohibit discrimination and are
themselves non-discriminatory.
Third, pursuant to ss 8(2) and (4), read together, there may be a further substantive obligation
on the government and public authorities to take positive steps and adopt special measures to
address the needs of people experiencing disadvantage so as to enable them to realise all of
their rights and freedoms.41 Having regard to international jurisprudence, these steps should
include legislative, educative, financial, social and administrative measures that are developed
and implemented using the maximum of available governmental resources.42
3.4
Right to Life
Section 9 of the Charter recognises that every person has the right to life and the right not to
be arbitrarily deprived of life.
This provision is modelled on art 6(1) of the ICCPR. The HRC has described the right to life
as the supreme right from which no derogation is permitted,43 even in time of public
emergency. The right to life has also been recognised in a range of human rights
instruments, including art 3 of the Universal Declaration of Human Rights,44 art 6 of the
Convention on the Rights of the Child,45 arts 9 and 28 of the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families 46 and,
indirectly, in the Convention on the Elimination of All Forms of Discrimination against
Women.47
41
HRC, General Comment 18, above n 35. See also Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, 278;
Lovelace v Ontario [2000] 1 SCR 950.
42
CESCR, Substantive Issues Arising in the Implementation of the International Covenant in Economic, Social
and Cultural Rights, above n 32, [11]. See also Eldridge v British Columbia (Attorney General) [1997] 2 SCR 624.
43
See also Bugdaycay v Secretary of State for the Home Department [1987] AC 514, 531 where Lord Bridge
stated that ‘The most fundamental of all human rights is the right to life and when an administrative decision is
said to be one which may put an applicant’s life at risk, the basis of the decision must surely call for the most
anxious scrutiny’.
44
GA Res 217A, UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/Res/217A (1948).
45
Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).
46
Opened for signature 2 May 1991, 30 ILM 1517 (1991) (entered into force 1 July 2003) (‘ICRMW’).
Opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’).
See Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No
19: Violence against Women (1992) [7(a)].
47
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Given the supremacy of the right to life and its relationship with all other human rights and
fundamental freedoms, international courts and tribunals have generally interpreted the right
broadly. For instance, in its General Comment No 6: The Right to Life, the HRC noted that
the right to life ‘is a right which should not be interpreted narrowly’48 and ‘cannot properly be
understood in a restrictive manner’.49 Thus, in the case of Mullin v Administrator, Union
Territory of Delhi, the Supreme Court of India held that
[t]he fundamental right to life which is the most precious human right and which forms
the ark of all other rights must therefore be interpreted in a broad and expansive spirit
so as to invest it with significance and vitality which may endure for years to come
and enhance the dignity of the individual and the worth of the human person. We
think that the right to life includes right to live, with human dignity and all that goes
along with it, namely, the bare necessaries of life such as adequate nutrition, clothing
and shelter and facilities for reading, writing and expressing oneself in diverse forms,
freely moving about and mixing and commingling with fellow human beings.50
Developing this approach further, international courts and tribunals have interpreted the right
to life as including both positive and negative rights and imposing negative, positive and
procedural obligations. Specifically, it has been held that the right to life imposes a negative
right in that it requires public authorities not to arbitrarily or unlawfully deprive a person of his
or her life, and a positive right in the sense that public authorities must adopt measures that
are conducive to allowing a person to live with human dignity.
The nature of the rights and obligations provided for by the right to life was helpfully
summarised by Lord Bingham of the UK House of Lords in R (Middleton) v West Somerset
Coroner:
The European Court of Human Rights has repeatedly interpreted article 2 of the
European Convention as imposing on member states substantive obligations not to
take life without justification and also to establish a framework of laws, precautions,
procedures and means of enforcement which will, to the greatest extent reasonably
practicable, protect life… The European Court has also interpreted article 2 as
imposing on member states a procedural obligation to initiate an effective public
investigation by an independent official body into any death occurring in
circumstances in which it appears that one or other of the foregoing substantive
obligations has been, or may have been, violated and it appears that agents of the
state are, or may be, in some way implicated. 51
(a)
Positive Obligations Arising from the Right to Life
The right to life requires that public authorities take positive steps and adopt measures that
are conducive to allowing a person to live with human dignity.
48
HRC, General Comment No 6, above n 5, [1].
49
Ibid [5].
50
[1981] 2 INSC 516, 528. See also Bandhua Mukti Morcha v Union of India (1984) 2 SCR 67.
51
R (Middleton) v West Somerset Coroner: [2004] 2 AC 182, [1]-[2]. See also Gentle, R (on the application of) &
Anor v The Prime Minister & Anor [2008] UKHL 20 (9 April 2008), [4]-[7].
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Chapter 5 – The Victorian Charter of Human Rights and
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For example, the HRC noted in General Comment No 6 that
the protection of this right requires that States adopt positive measures. In this
connection, the Committee considers that it would be desirable for States parties to
take all possible measures to reduce infant mortality and to increase life expectancy,
especially in adopting measures to eliminate malnutrition and epidemics.52
Accordingly, in EHP v Canada, the HRC found that the location of disposal sites for
radioactive waste near residential areas could give rise to a legitimate claim that the right to
life in art 6 had been breached.53 Similarly, in various Concluding Observations to state
reports, the HRC has identified homelessness,54 the increasing rate of infant mortality,55 and
the shorter life expectancy of women56 as matters to be addressed in accordance with art 6.
The right to life under art 2 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms57 has similarly been interpreted as imposing an obligation on
states ‘not only to refrain from the intentional and unlawful taking of life, but also to take
appropriate steps to safeguard the lives of those within its jurisdiction.’ 58 Examples from the
United Kingdom as to the circumstances in which positive obligations may apply include:

hospitals are under an obligation to provide life sustaining treatment where it is in the best
interests of the patient;59

police and protective authorities are under an obligation to provide protection to a person
who has received death threats or whose life is at ‘real and immediate risk’; 60 and
52
HRC, General Comment No 6, above n 5, [5].
53
EHP v Canada, HRC, Communication No 67/1980, UN Doc CCPR/C/OP/1 (27 October 1982). In a series of
cases, the Supreme Court of India has also held that the right to life subsumes the rights to healthy water, air and
environment: see, eg, Kumar v State of Bihar (1991) AIR 1991 SC 420. See also LCB v United Kingdom (1998)
27 EHRR 212.
54
HRC, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding
Observations of the Human Rights Committee: Canada, UN Doc CCPR/C/79/Add.105 (1999) [12].
55
HRC, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Comments of the
Human Rights Committee: Romania, UN Doc CCPR/C/79/Add.30 (1994) [11]. See also HRC, Consideration of
Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human
Rights Committee: Brazil, UN Doc CCPR/C79/Add.66 (1996) [23].
56
HRC, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Comments of the
Human Rights Committee: Nepal, UN Doc CCPR/C/79/Add.42 (1995) [8].
Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘European
Convention on Human Rights’).
57
58
Osman v United Kingdom (1998) 29 EHRR 245, [115]; LCB v United Kingdom (1998) 27 EHRR 212, [36]. See
also Lopez Ostra v Spain (1994) 20 EHRR 277 and Guerra v Italy (1998) 26 EHRR 357 for a discussion of the
positive obligations inherent in effective respect for human rights, including the rights to life, privacy and family
life.
59
NHS Trust A v M and NHS Trust B v H [2001] Fam 348.
60
Osman v United Kingdom (1998) 29 EHRR 245; Irwin Van Colle (Administrator of the Estate of Giles Van Colle,
Deceased) v Chief Constable of Hertfordshire [2007] EWCA Civ 325. See also Kontrova v Slovakia [2007] ECHR
7510/04 (31 May 2007), where the European Court of Human Rights found that the right to life had been
breached where the State did not take adequate steps or measures to intervene or protect the lives of children in
circumstances in which the mother had reported serious domestic violence and threats by her husband.
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Chapter 5 – The Victorian Charter of Human Rights and
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
if a person is killed by an agent of the state (such as a police officer or the army), dies or
is seriously injured while in the care, custody or control of the state or a public authority
(such as in a prison, public hospital or train crash), the state has an obligation to ensure a
prompt, effective and independent inquiry into the death or injury. 61
The international jurisprudence makes it clear that the right to life imposes particular
obligations in relation to persons in detention. For example, in Lantsova v Russian
Federation,62 a case concerning the death of a previously healthy 25 year old man following
inadequate medical treatment in prison, the HRC held that:
it is incumbent on States to ensure the right of life of detainees, and not incumbent on
the latter to request protection … the essential fact remains that the State party by
arresting and detaining individuals takes responsibility to care for their life. It is up to
the State party by organizing its detention facilities to know about the state of health
of the detainees as far as may be reasonably expected.63
Similarly, in Fabrikant v Canada,64 which concerned an alleged failure on the part of Canadian
authorities to provide appropriate medical treatment to a prisoner suffering from a heart
condition, the HRC stated that the State party is ‘responsible for the life and well-being of its
detainees’ and has a positive duty to maintain an adequate standard of health for detainees.65
Furthermore, in its Concluding Observations on Georgia, the HRC urged Georgia ‘to take
urgent steps to improve the situation in prisons, in particular, sanitary conditions’.66 In its
Concluding Observations on the Republic of Moldova, the HRC reiterated the State’s
‘obligation to ensure the health and life of all persons deprived of their liberty’, and urged the
State to
take immediate steps to ensure that the conditions of detention within its facilities
comply with the standards set out in articles 6, 7 and 10 of the [ICCPR], including the
prevention of the spread of disease and the provision of appropriate medical
61
R (on the application of Amin) v Secretary of State for the Home Department [2004] 1 AC 653. JL, R (on the
application of) v Secretary of State for the Home Department [2006] EWHC 2558 (Admin); Main(R) v Minister for
Legal Aid [2007] EWHC 742 (2 April 2007). See also decisions of the European Court of Human Rights, such as
Jordan v United Kingdom (2003) 37 EHRR 2; Baysayeva v Russia [2007] ECHR 74237/01 (5 April 2007). The
European Court has also held that the lack of any plausible explanation by authorities as to the circumstances
leading to a person’s death at the hands of or while in the custody of the state violates the right to life: see, eg,
Canan v Turkey [2007] ECHR 39436/98 (26 June 2007).
62
HRC, Communication No 763/1997, UN Doc CCPR/C/74/D/763/1997 (26 March 2002).
63
Ibid [9.2]. See also McFeeley v United Kingdom (1980) 3 EHRR 161; Keenan v United Kingdom (2001) 33
EHRR 38, [110].
64
HRC, Communication No 970/2001, UN Doc CCPR/C/79/D/970/2001 (11 November 2003).
65
Ibid [9.3]. The HRC noted that insufficient evidence had been provided to suggest that the authorities had ever
failed to determine the most appropriate medical treatment: at [9.3].
66
HRC, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding
Observations of the Human Rights Committee: Georgia, UN Doc CCPR/C/79/Add.75 (1997) [28].
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Chapter 5 – The Victorian Charter of Human Rights and
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treatment to persons who have contracted diseases, either in prison or prior to their
detention.67
International and comparative jurisprudence also establishes that where the protection of the
life of a person who is vulnerable or disadvantaged – such as a child or a person with a
physical, intellectual or psychiatric disability – is concerned, there is a requirement for
heightened vigilance and protection.68
(b)
Procedural and Investigative Obligations Arising from the Right to Life
The procedural obligations arising from the right to life were recently discussed by the UK
Court of Appeal in JL, R (on the application of) v Secretary of State for the Home Department:
That express obligation on each State has been construed as imposing (a) a negative
obligation, not intentionally and unlawfully to take a life, and (b) a positive obligation,
to take appropriate steps to protect lives within the jurisdiction of the State. It has
further been construed as imposing procedural obligations. One such obligation
imposed on a State is to have an effective criminal and civil law under which either a
prosecution can take place or a civil suit can be commenced under which an
investigation can be carried out as to the civil or criminal responsibility for a death.
But in certain cases where the State itself is ‘accountable’, e.g. where the death has
occurred through the act of an agent of the State, or where the death has occurred in
custody, there can arise an obligation to carry out an investigation which has certain
features; (i) the State itself must commence the investigation; (ii) the investigation or
inquiry must be public or open to public scrutiny; (iii) the investigator must be
independent of those persons involved; and (iv) the family must have a proper
opportunity to participate.69
Finally, it should be noted that s 9 of the Charter must be read together with the savings
provision in s 48, which states that nothing in the Charter affects any law applicable to
abortion or child destruction.
3.5
Protection from Torture and Cruel, Inhuman or Degrading Treatment
Section 10 of the Charter recognises a person’s right not to be

subjected to torture;

treated or punished in a cruel, inhuman or degrading way; or
67
Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding
Observations of the Human Rights Committee: Republic of Moldova (2002) UN Doc CCPR CO/75/MDA (2002)
[84.9]–[84.10].
68
Keenan v United Kingdom (2001) 33 EHRR 38; Herczegfalvy v Austria (1993) 15 EHRR 437, [82].
69
JL, R (on the application of) v Secretary of State for the Home Department [2007] EWCA Civ 767, [1] (24 July
2007).
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Chapter 5 – The Victorian Charter of Human Rights and
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
subjected to medical or scientific experimentation or treatment without full, free and
informed consent.
With the exception of the provision relating to medical experimentation or treatment, s 10 is
modelled on art 7 of the ICCPR.70 Pursuant to s 32(2) of the Charter, a court should also
consider the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment in interpreting and applying the right not to be tortured under s 10 of the
Charter.
Section 10 has particular relevance to persons in the custody, care or control of the state,
including persons held in prisons, detention centres and mental health facilities. 71 It may also
be relevant to issues such as corporal punishment, child abuse or neglect, extradition, and
systemic and serious discrimination.
The purpose of art 7, according to the HRC, is to ‘protect both the physical and mental
integrity … and the dignity of the individual’. 72 Article 7 therefore prohibits ‘not only … acts
that cause physical pain but also … acts that cause mental suffering to the victim’. 73
The ICCPR does not contain a definition of ‘torture’ or of ‘cruel, inhuman or degrading
treatment or punishment’. In its General Comment No 20 on art 7, the HRC states that
[t]he Covenant does not contain any definition of the concepts covered by article 7,
nor does the Committee consider it necessary to draw up a list of prohibited acts or to
establish sharp distinctions between the different kinds of punishment or treatment;
the distinctions depend on the nature, purpose and severity of the treatment
applied.74
Consequently, where the HRC finds a violation to have occurred, it often fails to specify which
aspect of the article has been breached. Violations may simply be described as ‘violations of
article 7’.75 For example, in Vuolanne v Finland,76 the author of the complaint had been
70
This modification of the ICCPR is intended to reflect the requirements for consent outlined in s 5(1) of the
Medical Treatment Act 1988 (Vic). Note that in the area of involuntary mental health treatment, both UK courts
and the European Court of Human Rights have held that compulsory treatment which is a ‘medical necessity’ will
ordinarily not violate the prohibition on torture and other cruel treatment or punishment: see, eg, R (B) v
Responsible Medical Officer and others [2006] 1 WLR 810; Herczegfalvy v Austria (1993) EHRR 437.
71
There is a substantial body of jurisprudence from both the UK and the European Court of Human Rights
establishing that there is a positive obligation on public authorities to take reasonable steps to prevent the
vulnerable from harm. See, eg, A v UK (1998) 27 EHRR 611, Osman v UK (2000) 29 EHRR 245, R (Pretty) v
DPP [2001] 3 WLR 1598; A Local Authority v Z [2005] 1 WLR 959.
72
HRC, General Comment No 20: Replaces General Comment 7 concerning Prohibition of Torture and Cruel
Treatment or Punishment (2001) [1]–[2], available from http://www.ohchr.org/english/bodies/hrc/comments.htm.
For further HRC jurisprudence on art 7, see http://www.bayefsky.com/bytheme.php/id/1282.
73
Ibid [2].
74
Ibid [4]. Cf the approach adopted by the European Court of Human Rights under the European Convention on
Human Rights where the ill-treatment concerned must attain ‘a minimum level of severity and [involve] actual
bodily injury or intense physical or mental suffering’: see, eg, Pretty v United Kingdom (2002) 35 EHRR 1, [52].
75
Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights:
Cases, Materials and Commentary (2000) 208.
76
HRC, Communication No 265/1987, UN Doc CCPR/C35/D/265/1987 (7 April 1989).
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Chapter 5 – The Victorian Charter of Human Rights and
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subjected to military detention for a period of 10 days, during which time he suffered physical
maltreatment and verbal intimidation. The HRC stated that ‘what constitutes inhuman or
degrading treatment falling within the meaning of article 7 depends on all the circumstances of
the case, such as the duration and manner of the treatment, its physical or mental effects as
well as the sex, age and state of health of the victim’.77 A similar approach appears to have
been adopted under the CAT.
While the assessment of what constitutes inhuman or degrading treatment is relative, it is
clear that ‘ill treatment must attain a minimum level of severity if it is to fall within the scope of
[the right]’.78 According to the European Court of Human Rights:
[T]he Court's case-law refers to ‘ill-treatment’ that attains a minimum level of severity
and involves actual bodily injury or intense physical or mental suffering. Where
treatment humiliates or debases an individual, showing a lack of respect for, or
diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority
capable of breaking an individual's moral and physical resistance, it may be
characterised as degrading and also fall within the prohibition of Article 3. The
suffering which flows from naturally occurring illness, physical or mental, may be
covered by Article 3, where it is, or risks being, exacerbated by treatment, whether
flowing from conditions of detention, expulsion or other measures, for which the
authorities can be held responsible.79 [citations omitted]
The UK House of Lords has stated that ‘treatment is inhuman and degrading if, to a seriously
detrimental extent, it denies the most basic needs of any human being’. 80
Courts have also recognized that the scope of the right is flexible, and subject to changing
contemporary values. Thus, the European Court of Human Rights has stated that:
Having regard to the fact that the Convention is a living instrument which must be
interpreted in light of present day conditions…certain acts which were classified in the
past as inhuman and degrading as opposed to torture could be classified differently in
the future.81
Article 7 is considered to be one of the few absolute rights in the ICCPR; no restrictions or
limitations on, or derogations from, the right are permitted. In its General Comment No 20,
77
Ibid [9.2]. See also Ireland v United Kingdom (1979-80) 2 EHRR 25, [162].
78
See, eg, Ireland v United Kingdom (1979-80) 2 EHRR 25, [162].
79
Pretty v United Kingdom (2002) 35 EHRR 1, [52].
80
R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, [7]. See also Anufrijeva v
Southwark London Borough Council [2004] QB 1124 in which the UK Court of Appeal held that ‘There is a stage
at which the dictates of humanity require the state to intervene to prevent any person within its territory suffering
dire consequences as a result of deprivation of sustenance’.
81
Selmouni v France (2000) 29 EHRR 403, [101]. See also Catholic Commission for Justice and Peace in
Zimbabwe v Attorney-General [1993] 1 ZLR 242 (S) (Supreme Court of Zimbabwe, Judgment No SC 73/93)
(Gubbay CJ), in which it was stated that ‘[w]hat might not have been regarded as inhuman decades ago may be
revolting to the new sensitivities which emerge as civilization advances’ and that the state ‘must not only take
account of the emerging consensus of values in the civilized international community’ as evidenced by decisions
of other courts and writings of academics, but also of ‘contemporary norms operative in Zimbabwe and the
sensitivities of its people’.
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Chapter 5 – The Victorian Charter of Human Rights and
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the HRC affirms that ‘no justification or extenuating circumstances may be invoked to excuse
a violation of article 7 for any reasons’. 82 For example, in Mukong v Cameroon, the HRC
rejected an attempt by the state party to justify appalling prison conditions on the basis of
economic and budgetary problems.83 The UK Court of Appeal made a similar finding in R
(Noorkoiv) v Secretary of State for the Home Department, where it held that the Government
could not be excused from what were otherwise breaches of the right to liberty and freedom
from cruel treatment in the prison context ‘simply by pointing to a lack of resources that are
provided by other arms of government’.84 Similarly, the European Court of Human Rights has
consistently stated that it is ‘incumbent on the…Government to organise its penitentiary
system in such a way that ensures respect for the dignity of detainees, regardless of financial
or logistical difficulties’.85
International and comparative jurisprudence reflects a broad interpretation of the right to
protection from torture or other cruel treatment or punishment, encompassing not only
physical pain or suffering, but also psychological or mental pain or suffering. Recent
decisions of the European Court of Human Rights, for example, indicate that the following
circumstances may give rise to a violation:

severe fear, anguish and inferiority felt by the applicant while in police custody; 86

unnecessary handcuffing in public view leading to humiliation and damage to selfesteem;87 and

strip searching in circumstances where such a measure is not ‘absolutely necessary’ and
where there are serious reasons to suspect that the prisoner was hiding an object or
substance on or in their body.88
A state's failure to act – including a failure to prevent, investigate, punish or provide effective
remedies – may constitute a violation of the right to be free from cruel inhuman or degrading
treatment. According to the HRC, states have a positive obligation to promote safeguards to
enforce the right not to be tortured or subject to cruel treatment or punishment. Such
safeguards may include:
82
HRC, General Comment No 20, above n 75, [3].
83
HRC, Communication No 458/1991, UN Doc CCPR/C/51/D/458/1991 (1994) [9.93].
84
[2002] EWCA Civ 770, [31] (Buxton LJ).
85
Mamedova v Russia [2007] ECHR 7064/05, [63]. See also Frolov v Russia [2007] ECHR 205/02; Holomiov v
Moldova, Application [2007] ECHR 30649/05 (6 November 2006); Istratii and others v Moldova [2007] ECHR
8721/05 (27 March 2007); Benediktov v Russia [2007] ECHR 106/02 (10 May 2007).
86
Alsayed Allaham v Greece [2007] ECHR No 25771/03 (18 January 2007).
87
See, eg, Erdogan Yagiz v Turkey [2007] ECHR 27473/02 (6 March 2007); Gorodnitchev v Russia [2007] ECHR
52058/99 (24 May 2007).
88
Ferot v France [2007] ECHR 70204/01 (12 June 2007); Wieser v Austria [2007] ECHR 2293/03 (22 February
2007). According to the European Court, in respect of a person deprived of his liberty, ‘recourse to physical force
which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an
infringement of the right set forth in art 3 (cf Ribitsch v. Austria, judgment of 4 December 1995, Series A No 336,
p. 26, § 38 and Berliński v. Poland, Nos 27715/95 and 30209/96, § 59, 20 June 2002)’: Kucheruk v Ukraine [2007]
ECHR 2570/04 (6 September 2007).
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Chapter 5 – The Victorian Charter of Human Rights and
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
provisions against detention incommunicado;

granting, without prejudice to the investigation, persons such as doctors, lawyers and
family members access to detainees;

provisions requiring that detainees should be held in places that are publicly recognised
and that their names and places of detention should be entered in a central register
available to persons concerned;

provisions making confessions or other evidence obtained through torture or other
treatment contrary to art 7 of the ICCPR inadmissible in court; and

measures for training and instructing law enforcement officials not to apply such
treatment.
The European Court of Human Rights has similarly held that a failure to act may constitute a
violation of the right to freedom from torture under art 3 of the European Convention on
Human Rights. This includes, for example:

failure to provide adequate facilities so as to ensure that people are not subject to
degrading conditions, including:
o
failure to provide adequate health care to a mentally ill prisoner;89
o
failure to provide appropriate drug withdrawal and medical treatment to a heroin
dependent prisoner;90
o
failure to provide the level of medical care necessary to treat a prisoner with a
severe urological condition, even where such health care may not be available to
that same person outside of prison;91
o
failure to provide humane conditions of detention. Prison conditions such as lack
of natural light, inadequate ventilation, overcrowding, poor quality food and
inadequate exercise facilities may amount to cruel, inhuman or degrading
treatment even absent any intention on the part of authorities to humiliate or
debase prisoners;92
89
Keenan v United Kingdom (2001) 33 EHRR 913. See also Price v United Kingdom (2001) 34 EHRR 1285.
90
McGlinchey v United Kingdom (2003) 37 EHRR 821 (where the European Court of Human Rights held that a
heroin dependent prisoner had died in conditions which violated art 3 of the European Convention due to the
failure of prison authorities to take more effective steps to address her withdrawal symptoms and deteriorating
health).
91
Holomiov v Moldova [2006] ECHR 30649/05 (7 November 2006) in which the Court held that lack of adequate
medical treatment for a prisoner with a serious urological condition amounted to a violation of art 3. The Court
stated that that the quality of healthcare to those imprisoned by the action of the state is not to be relative. While
an individual in society may have no right to healthcare under the Convention, let alone adequate healthcare,
where he or she is in the state's custody the state must ensure that he receives the medical care he requires.
Scarce resources or logistical difficulty will not be legitimate excuses. See also Istratii and others v Moldova
[2007] ECHR 8721/05 (27 March 2007).
92
Todor Todorov v Bulgaria [2007] ECHR 50765/99 (5 April 2007); Andrey Frolov v Russia [2007] ECHR 205/02
(29 March 2007).
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Chapter 5 – The Victorian Charter of Human Rights and
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o
failure of a local authority to act to prevent children in a family from ongoing abuse
and neglect;93 and
o

failure to provide support to persons so as to leave them destitute.94
failure to investigate, punish or provide remedies for breaches, including:
o
failure of the authorities to provide adequate explanation for the applicant’s
injuries while in custody, or to conduct a proper investigation into how they were
sustained, constituted a violation;95 and
o
failure of the state to take adequate disciplinary action against police officers
responsible for subjecting a prisoner to cruel and degrading treatment amounted
to a providing de facto immunity and violating the obligation to prevent and
provide remedies for contravening conduct.96
3.6
Freedom from Forced Work
Section 11 of the Charter provides for freedom from forced work. This encompasses the right
to be free from slavery or servitude, and the right not to perform compulsory labour.97
‘Slavery’ is effective ownership of a person while ‘servitude’ includes practices such as debt
bondage or trafficking which involve economic exploitation and dominance by one person
over another. ‘Forced work’ refers to work exacted from a person under threat of a penalty
and typically involves involuntariness and injustice, oppression or unjustifiable hardship. 98
Section 11 does contain exceptions to the general right of freedom from forced work. It states
that the right does not apply to:

work or service normally required of a person under detention because of a court order;

work or service required because of an emergency threatening the Victorian community;
or

work or service that forms part of normal civil obligations (such as, for example, jury
duty).99
93
Z v United Kingdom (2001) 34 EHRR 97.
94
In 2005, the UK House of Lords found that a law prohibiting the provision of support for asylum seekers whose
claims for asylum were not made as soon as ‘reasonably practicable’ so as to leave them destitute and potentially
without food or water, amounted to cruel treatment in violation of art 3 of the Convention; R v Secretary of State
for the Home Department; ex parte Limbuela [2005] UKHL 66.
95
Pruneanu v Moldova, Application No 6888/03 (16 January 2007); Olmez v Turkey, Application No 39464/98 (20
February 2007); Jasar v The Former Yugoslav Republic of Macedonia, Application No 69908/01 (15 February
2007); Barta v Hungary, Application No 26137/04 (10 April 2007); Dzwonkowski v Poland, Application No
46702/99 (12 April 2007); Haci Ozen v Turkey, Application No 46286/99 (12 April 2007).
96
Zeynap Ozcan v Turkey, Application No 45906/99 (20 February 2007).
97
This provision is modelled on art 8(3)(a) of the ICCPR, above n 1.
98
See, eg, Van der Mussele v Belgium (1984) 6 EHRR 63, [37].
99
The civil obligations exception to the freedom from forced work is modelled on art 8(3)(c) of the ICCPR.
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Chapter 5 – The Victorian Charter of Human Rights and
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This provision is likely to have particular relevance in the areas of sex slavery, human
trafficking and domestic servants. In a recent case, the European Court of Human Rights
found France to be in violation of the prohibition on slavery under art 4 of the European
Convention on Human Rights for failing to take adequate domestic steps to criminalise the
practices of slavery, servitude and forced labour and for failing to take other effective
measures to prevent any act intended to maintain a person in such circumstances. 100
3.7
Freedom of Movement
Section 12 of the Charter provides that a person who is lawfully within Victoria has the right to
move freely within Victoria, and to enter and leave it, as well as the freedom to choose where
to live.101 The right is likely to include a qualified right not to be moved to, or from, a particular
location, and freedom from procedural impediments to free movement (such as requirements
for prior notification for a public demonstration).
The HRC has commented, in relation to the parallel right in art 12 of the ICCPR, that:

liberty of movement is an indispensable condition for the free development of a person;
and

the permissible limitations which may be imposed on the rights protected by art 12 must
not nullify the principle of liberty of movement, and are governed by the requirement of
necessity provided for in art 12(3) of the ICCPR as well as the need for consistency with
other ICCPR rights.
Further, in General Comment No 27, the HRC emphasised that the right to freedom of
movement was to be protected from public, but also private interference, and that this right
was particularly pertinent in the case of women.102
However, the right to freedom of movement may, according to the HRC in General Comment
No 27, be subject to such reasonable limitations as can be demonstrably justified in a free and
democratic society.103 As stated in the explanatory memorandum to the Charter, acceptable
restrictions on the freedom of movement may include:

restrictions on the freedom of movement of persons lawfully detained;

restrictions on movement/place of residence based on a court order;

restrictions based on family violence intervention orders.104
100
Siliadin v France (Application No 73316/01, 26 July 2005). The case concerned a 16 year old Togolese
national who worked as a maid for a French family, looking after four children 7 days a week from 7.30am to
10.30pm without pay.
101
This provision is modelled on art 12 of the ICCPR, above n 1.
102
HRC, General Comment 27: Freedom of Movement, UN Doc CCPR/C/21/Rev.1/Add.9 (1999) [6], available
from http://www.ohchr.org/english/bodies/hrc/comments.htm. For further HRC jurisprudence on art 12, see
http://www.bayefsky.com/bytheme.php/id/1170.
103
Ibid [11].
104
Although any such restrictions would also need to be proportionate and justifiable pursuant to s 7: see, eg,
Raimondo v Italy (1994) 18 EHRR 237.
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Chapter 5 – The Victorian Charter of Human Rights and
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The explanatory memorandum further indicates that the right to freedom of movement should
be observed through government restraint, rather than through positive actions. For example,
the right does not require the provision of positive steps by a public transport operator to
promote free movement.
3.8
Privacy and Reputation
Section 13 of the Charter establishes that a person has the right not to have their privacy,
family or correspondence unlawfully or arbitrarily interfered with, and the right not to have their
reputation unlawfully attacked.105 It is intended that the right to privacy be interpreted
consistently with the existing information privacy and health records framework in Victoria. 106
The HRC has stated in relation to the parallel right under the ICCPR that this right is a
guarantee against interferences and attacks, whether they emanate from state authorities or
from natural or legal persons. Further, the HRC has stated that:

the term ‘unlawful’ means that no interference can take place except in cases envisaged
by the law;107

the prohibition against ‘arbitrariness’ is intended to guarantee that even interference
provided for by law should be in accordance with the provisions, aims and objectives of
the ICCPR, and should be, in any event, reasonable and proportionate in the particular
circumstances;108

the term ‘privacy’ refers to the ‘sphere of a person’s life in which he or she can freely
express his or her identity, be it by entering into relationships or alone’; 109

the term ‘family’ should be given a broad interpretation to include all those comprising the
family as understood in society and is not confined by marriage; 110
105
Section 13 is modelled on art 17 of the ICCPR, above n 1.
106
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 13. See also State of
Victoria & Anor v Nine Network [2007] VSC 431 (29 November 2007).
107
HRC, General Comment No 16: The Right to Respect of Privacy, Family, Home and Correspondence, and
Protection of Honour and Reputation (1988) [3], available from
http://www.ohchr.org/english/bodies/hrc/comments.htm. For further HRC jurisprudence on the right to privacy,
see http://www.bayefsky.com/bytheme.php/id/1193. The UK Courts have further held that for interference with
the right to privacy to be ‘in accordance with law’ as required by the Human Rights Act 1998 (UK), the law
justifying the interference must be sufficiently precise to enable an individual to regulate his or her conduct: De
Freitas v Ministry of Agriculture [1999] 1 AC 76, 78E-F (per Lord Clyde). This requires that the law:
108
1.
have some discernible legal basis;
2.
be adequately accessible; and
3.
be formulated in a way which is sufficiently foreseeable: see, eg, R (on the application of Munjaz) v
Merseyside Care NHS Trust [2005] UKHL 58; R (on the application of Gillan) v Commissioner of Police
for the Metropolis [2006] UKHL 12.
HRC, General Comment No 16, above n 107 [4].
109
Coeriel and Aurik v The Netherlands, HRC, Communication No 453/1991, UN Doc CCPR/C/52/D/453/1991,
[10.2].
110
HRC, General Comment No 16, above n 107 [5].
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Chapter 5 – The Victorian Charter of Human Rights and
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
the term ‘home’ includes ‘where a person resides or carries out their ordinary
occupation’.111
The right to privacy and respect for private life under art 8 of the European Convention on
Human Rights has been considered extensively by the European Court of Human Rights. In
a recent case, Pretty v United Kingdom, the European Court stated that,
the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It
covers the physical and psychological integrity of a person. It can sometimes
embrace aspects of an individual's physical and social identity. Elements such as, for
example, gender identification, name and sexual orientation and sexual life fall within
the personal sphere protected by Article 8. Article 8 also protects a right to personal
development, and the right to establish and develop relationships with other human
beings and the outside world. Although no previous case has established as such
any right to self-determination as being contained in Article 8 of the Convention, the
Court considers that the notion of personal autonomy is an important principle
underlying the interpretation of its guarantees. [citations omitted]112
Accordingly, the right to respect for private and family life, home and correspondence under
art 8 of the European Convention has been considered to include:

the right to have personal and health information kept private and confidential;

an obligation on the part of public authorities to ensure that any personal information they
collect is necessary, secure and accurate;113

the right to peaceful enjoyment of, and non-interference with, the home;

the right not to be summarily evicted into a state of homelessness or inadequate
housing;114

the right not to be subject to strip searches unless they are strictly necessary and comply
with safeguards and precautions to protect the dignity of those being searched; 115

the right to private and secure correspondence, including communication by letter,
telephone, facsimile or email;116
111
HRC, General Comment No 16, above n 107 [5].
112
Pretty v United Kingdom (2002) 35 EHRR 1, [61].
113
Norman Baker MP v Secretary of State for the Home Department [2001] UKHRR 1275; Gunn-Russo v Nugent
Care Society and Secretary of State for Health [2002] 1 FLR 1.
114
Connors v United Kingdom [2005] 40 EHRR 189. See also Stanková v Slovakia [2007] ECHR 7205/02 (9
October 2007).
115
Wainwright v United Kingdom [2006] ECHR 12350/04 (26 September 2006).
116
See, eg, R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 where the Court held that a
blanket policy of searching prisoners’ cells, including opening letters from legal representatives, was a violation of
the right to privacy. See also Potter, Re Judicial Review [2007] ScotCS CSOH 56 (20 March 2007) at
http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_56.html in which the Scottish Court of Sessions held that
attaching a pre-recorded message to all outgoing telephone calls made by a prisoner, informing the person
receiving the call that the call is coming from a prison, breached right to respect for family life and
correspondence.
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Chapter 5 – The Victorian Charter of Human Rights and
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
the prima facie prohibition on the ability of employers to collect and store personal
information about employees through the monitoring of telephone, email and internet
correspondence;117

freedom to choose sexual identity;

freedom to choose how a person looks and dresses; 118 and

freedom from media intrusion.119
The right may also impose an obligation on governments and public authorities to take
positive steps and measures to prevent intrusions by third parties. For example, in R.
(Bernard) v Enfield LBC,120 the UK courts found that the authority had acted unlawfully and
incompatibly with art 8 of the European Convention in failing for over two years to provide
suitable accommodation for a family which included a severely disabled woman. It was held
that just satisfaction for the failure required an award of compensation, and the court used
amounts recommended by the Ombudsman as guidance in ordering the payment of £10,000.
Similarly, the state may have an obligation to ameliorate, or protect people from, serious
pollution.121
Finally, as with many rights, the right to privacy may need to be balanced against other
human rights. For example, in R (Stevens) v Plymouth City Council and C, the UK Court of
Appeal held that a County Council could disclose confidential information about an adult
medical patient to his mother as it was necessary for her to be involved in his care. 122
3.9
Freedom of Thought, Conscience, Religion and Belief
Section 14 establishes that every person has the right to freedom of thought, conscience,
religion and belief.123 The right includes the freedom to have or adopt a religion or belief of
choice, and freedom to demonstrate religion or belief in worship, observance, practice and
117
See, eg, Copland v United Kingdom [2007] ECHR Application No 62617/00 (3 April 2007).
118
See, eg, Lopez Ostra v Spain (1994) 20 EHRR 277 and Guerra v Italy (1998) 26 EHRR 357.
119
See, eg, CC v AB [2006] EWHC 3083 (QB); Douglas v Hello! Ltd [2001] QB 967.
120
[2002] EWHC 2282 (Admin). See also Marzari v Italy (1999) 28 EHRR CD 175, in which the European Court
of Human Rights found that, although art 8 does not guarantee the right to have one’s housing problem solved by
the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a
severe disease might in certain circumstances raise an issue under art 8 of the European Convention because of
the impact of such a refusal on the private life of the individual. See also, Anufrijeva v Southwark London
Borough Council; R (on the application of N) v Secretary of State for the Home Department [2003] EWCA Civ
1406, in which the UK Court of Appeal held that art 8 was capable of imposing a positive obligation on the state to
provide accommodation where otherwise family life was to be seriously inhibited or the welfare of children
threatened.
121
Dennis v Ministry of Defence [2003] EWHC 793. See also Fadeyeva v Russia [2005] ECHR Application No
55723/00 (9 June 2005); Giacomelli v Italy [2006] ECHR Application No 59909/00 (2 November 2006) (persistent
noise and harmful omissions from toxic plant breached art 8); Evans v United Kingdom [2007] ECHR Application
No 6339/05 (10 April 2007). Cf Hatton v United Kingdom (2003) 37 EHRR 611.
122
[2002] 1 FLR 1177.
123
This provision of the Charter is modelled on art 18 of the ICCPR, above n 1.
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Chapter 5 – The Victorian Charter of Human Rights and
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teaching, either by an individual or as part of a community, in public or in private. It also
includes the right not to have or adopt a religion or belief. Section 14 also states that a person
must not be coerced or restrained in a way that limits these freedoms.
According to the HRC, commenting on the right to free thought, conscience, religion and belief
under art 18 of the ICCPR, this right is profound and fundamental, and cannot be derogated
from, even in times of public emergency.124 The HRC has also observed that:

governments may not permit any limitations on the freedom of thought and conscience,
or on the freedom to have or adopt a religion or belief of one's choice;

it may be permissible to restrict freedom to manifest religion or belief only if such
limitations are prescribed by law and are necessary to protect public safety, order, health
or morals, or the fundamental rights and freedoms of others;125

the terms ‘belief’ and ‘religion’ are to be construed broadly, and are not limited to
traditional religions or to religions and beliefs with institutional characteristics or practices
analogous to those of traditional religions;126

the freedom to manifest religion or belief in worship, observance, practice and teaching
encompasses a broad range of acts, including ritual and ceremonial acts, the display of
symbols, the observance of holidays and days of rest, the observance of dietary
regulations, and the wearing of distinctive clothing or headcoverings;127

the right protects against coercion to have or adopt a religion or belief, including the use
or threat of physical force or penal sanctions to compel believers or non-believers to
adhere to their religious beliefs and congregations, to recant their religion or belief or to
convert. The same protection is enjoyed by holders of all beliefs of a non-religious
nature;128 and
124
Article 4(2) of the ICCPR, above n 1; HRC, General Comment No 22: The Right to Freedom of Thought,
Conscience and Religion (1993) [1], available from http://www.ohchr.org/english/bodies/hrc/comments.htm. For
further HRC jurisprudence on art 4(2), see http://www.bayefsky.com/bytheme.php/id/1276.
125
HRC, General Comment No 22, above n 124, [8]. See also Church of Scientology Moscow v Russia [2007]
ECHR 18147/02, in which the European Court of Human Rights held that the state has an obligation of ‘neutrality
and impartiality vis-à-vis religious communities’ but may restrict religious association or manifestation of belief
where such associations or manifestations endanger democracy.
126
HRC, General Comment No 22, above n 124, [2].
127
Ibid [4]. Cf R (Begum) v Governors of Denbigh High School [2005] 2 WLR 3372 and R (on the application of X
(by her father and litigation friend)) v Headteachers [2006] EWHC 298 (Admin) in which UK courts held that a
school’s decision to refuse to allow Muslim students from wearing a jilbab (a long coat-like garment) and a niqab
(a veil covering the entire face and head except the eyes) were justifiable and permissible limitations ‘in the
interests of public safety or for the protection of the rights and freedoms of others’. The courts held that freedom
of religion ‘does not require that one should be allowed to manifest one’s religion at any time and place of one’s
own choosing’. See also Singh Binder v Canada, HRC, Communication No 208/1986, UN Doc
CCPR/C/37/D/208/1986 (1989) in which the UN Human Rights Committee ruled that a restriction on the wearing
of a turban due to a requirement to wear safety headgear was permissible.
128
Ibid [5].
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
in accordance with art 20 of the ICCPR, manifestations of religion or belief may not
amount to propaganda for war or advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence. 129
The state also has an obligation to adequately protect people from religious vilification, hatred
or serious offence.130
3.10
Freedom of Opinion and Expression
Section 15 of the Charter establishes the right to hold an opinion without interference, and the
right to freedom of expression.131 Freedom of expression includes the freedom to impart and
receive132 information and ideas of all kinds, whether orally, in writing, in print, through art or
another medium.
The right to freedom of opinion and expression is particularly important in the areas of political
communication, journalism and the media, demonstrations, industrial activity and
‘whistleblowing’. Commenting on the right to freedom of expression under s 14 of the New
Zealand Bill of Rights Act (NZ), the New Zealand Ministry of Justice has stated that:
Speech or an expression that is considered important to the ability of individuals to
participate in core democratic processes, for example in elections, and political and
social speech, is likely to enjoy a very high degree of protection. 133
The right to freedom of opinion permits no restrictions or limitations. However, the right to
freedom of expression is not free from limitations. Section 15 states that freedom of
expression is subject to special duties and responsibilities, and may be subject to lawful
restrictions reasonably necessary to:

respect the rights and reputation or other people; or

for the protection of national security, public order, public health or public morality.
The Supreme Court of Canada has adopted a two-step inquiry to determine whether an
individual’s freedom of expression has been infringed. The first involves a determination of
whether the individual’s activity falls within the freedom of expression. The second step is to
determine whether the purpose or the effect of the impugned government action is to restrict
that freedom. 134
129
Ibid [7].
130
Otto-Preminger Institute v Austria (1995) 19 EHRR 34.
131
This right is based on art 19 of the ICCPR, above n 1.
132
See, eg, Rocket v Royal College of Dental Surgeons of Ontario [1990] 2 SCR 232.
133
http://www.justice.govt.nz/pubs/reports/2004/bill-of-rights-guidelines/section12-15.html#section14. See also
Livingstone v The Adjudication Panel for England [2006] EWHC 2533 (Admin) [35]; Lombardo & Ors v Malta,
Application No 7333/06 (24 April 2007); Baczkowski v Poland, Application No 1543/06 (3 May 2007).
134
Ross v New Brunswick School District No 15 [1996] 1 SCR 825.
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Responsibilities
Therefore, defamation laws which restrict absolute freedom of expression for the purpose of
striking a balance with other rights may not breach s 15.135 Similarly, restrictions on hate
speech or on racial or religious vilification may be permissible. It is unlikely, however, that
limitations are permissible on the communication of information or ideas which merely ‘offend,
shock or disturb’, because such are the demands of that pluralism, tolerance and
broadmindedness without which there is no democratic society’. 136 It is important that any
restrictions on the right to freedom of expression be examined with particular care and
scrutiny.137
Article 19(3) of the ICCPR contains a similar limitation on the freedom of expression, providing
that ‘the exercise of the right to freedom of expression carries with it special duties and
responsibilities and for this reason certain restrictions on the right are permitted which may
relate either to the interests of other persons or to those of the community as a whole’.138 The
HRC has noted that any state-imposed restrictions on the exercise of freedom of expression
must not put the right itself in jeopardy.139
3.11
Peaceful Assembly and Freedom of Association
Section 16 of the Charter establishes a right to peaceful assembly and freedom of association
with others, including the right to join trade unions.140
Freedom of assembly enshrines the right to individuals and groups to meet together to receive
or impart information or ideas, to express their views or to hold a protest. Freedom of
assembly is not an absolute right141 and is confined to peaceful, non-violent assemblies (for
example, riots would not be protected). However, civil disobedience manifested without force
may be protected. Moreover, the right may impose a positive obligation on the government to
135
But see Colaco Mestre and SIC v Portugal, Application Nos 11182/03 and 11319/03 (26 April 2007) and
Lombardo & Ors v Malta, Application No 7333/06 (24 April 2007), in which the European Court of Human Rights
held that domestic defamation laws and court decisions went too far in restricting freedom of expression.
136
Handyside v United Kingdom [1976] 1 EHRR 737 commenting on the right to freedom of opinion and
expression under art 10 of the European Convention on Human Rights. See also Arbeiter v Austria, Application
No 3138/04 (25 January 2007); Livingstone v The Adjudication Panel for England [2006] EWHC 2533 (Admin)
[36].
137
Vereinigung Bildender v Kunstler v Austria, Application No 68354/01 (25 January 2007).
138
HRC, General Comment No 10: Freedom of Expression (1983) [4], available from
http://www.ohchr.org/english/bodies/hrc/comments.htm. For further HRC jurisprudence on the right to freedom of
opinion and expression, see http://www.bayefsky.com/bytheme.php/id/950 and on permissible limitations in the
areas of hate speech and propaganda, see http://www.bayefsky.com/bytheme.php/id/956.
139
Ibid.
140
The right to peaceful assembly is modelled on art 21 of the ICCPR, above n 1; the right to freedom of
association with others is modelled on art 22 of the ICCPR, above n 1. For further HRC jurisprudence on the right
to freedom of assembly, see http://www.bayefsky.com/bytheme.php/id/651. For further HRC jurisprudence on the
right to freedom of association, see http://www.bayefsky.com/bytheme.php/id/658.
141
Joseph, Schultz and Castan, above n 75, 426. However, according to the Grand Chamber of the European
Court of Human Rights, the only ‘necessity capable of justifying an interference with any of the rights enshrined in
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Responsibilities
facilitate peaceful assemblies142 and to take action to protect peaceful demonstrators from
counter-demonstrators.143 The positive obligation of the state to secure genuine and effective
respect for freedom of association and assembly is of particular importance to those with
unpopular views or belonging to minorities because they are more vulnerable to
victimisation.144
Freedom of association permits a person to join together in groups formally to pursue
common interests.145 Examples of such groups are:

political parties;

professional or sporting clubs;

non-governmental organisations;

trade unions; and

corporations.
The right may be limited to groups that form for a ‘public’ purpose — groups with solely private
interests, such as family groups, are protected by the right to privacy in s 13 of the Charter.146
For example, in PS v Denmark, the HRC stated that a father’s complaint about restrictions on
his ability to associate with his son did not breach the equivalent ICCPR provision (art 22).147
The right to freedom of association includes the right not to associate with others.
Article 22(2) of the ICCPR provides for permissible limitations to the exercise of the right to
freedom of association. An example of such a limitation occurred in MA v Italy.148 That case
concerned a ban on the Italian fascist party, which the HRC found to be permissible.
Presumably, this was on the grounds of public order and national security.
These limitations are reflected in the Charter. Pursuant to s 7, the right to freedom of
association may be subject under law to such reasonable limitation as can demonstrably be
justified in a free and democratic society based on human dignity, equality and freedom. 149
those Articles is one that may claim to spring from “democratic society”’: Refah Partisi (the Welfare Party) and
Others v Turkey, Application Nos 41340/98, 41342/98, 41343/98, and 41344/98 (13 February 2003).
142
See, eg, R (Laporte) v Chief Constable of Gloucester Constabulary [2004] EWCA Civ 1639 in which the House
of Lords held that the police had acted unlawfully, both in preventing coach passengers from reaching the site of a
demonstration (because a breach of the peace was not imminent at the time the coaches were stopped) and in
escorting the coaches back to London.
143
See, eg, Baczkowski v Poland [2007] ECHR 1543/06 (3 May 2007) in which the European Court of Human
Rights found a violation of the right to peaceful assembly where a municipal authority refused permission for a
march through the city regarding discrimination against homosexuals on the grounds of traffic regulations and the
risk of clashes with counter-demonstrators. See also Platform ‘Artze fur das Leben v Austria (1991) 13 EHRR
204.
144
See, eg, Baczkowski v Poland [2007] ECHR 1543/06 (3 May 2007).
145
Joseph, Schultz and Castan, above n 75, 426.
146
The equivalent to s 13 is art 17 of the ICCPR, above n 1.
147
HRC, Communication No 397/1990, UN Doc CCPR/C/45/D/397/1990 (18 August 1992).
148
HRC, Communication No 117/1981, UN Doc CCPR/C/OP/2 (at 31) (10 April 1984).
149
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 14.
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Chapter 5 – The Victorian Charter of Human Rights and
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For instance, reasonable limits may be justified to ensure safety and security in Victorian
prison facilities.150
3.12
Protection of Families and Children
Section 17 of the Charter states that families are the fundamental group unit of society, and as
such are entitled to protection by society and the state.151 The term ‘families’ is intended to be
interpreted broadly, so as to recognise the diversity of families living in Victoria and to afford
all such families protection.152
The HRC has confirmed in General Comments 16 and 19 that it is not possible to give the
concept of ‘family’ a standard definition, and has emphasised that protection should be given
to any group of people regarded within a particular country or region as a ‘family’.153
One of the principal ways in which the family is to be protected is through the promotion of
family unity. This is most relevant in the context of, and has most commonly been agitated in
cases concerning, the reunification of migrants with their families who remain overseas. In
Australia, though this is more likely to be a matter for the federal jurisdiction, it is possible it
may have some implications at state level, for example in the case of prisoners’ contact with
families or the removal of a child from his or her home.
The HRC has also emphasised that protection of families should be carried out by society,
and requires the development of necessary protections by social institutions. 154
Section 17 of the Charter also establishes the right of the child, without discrimination, to
protection in his or her best interests. This provision is modelled on art 24(1) of the ICCPR.
The HRC has made the following comments in relation to the rights of the child:

every possible economic and social measure should be taken to reduce infant mortality,
to eradicate malnutrition among children, and to prevent them from being subjected to
acts of violence and cruel and inhuman treatment or exploitation; 155 and

in the cultural field, every possible measure should be taken to foster the development of
a child’s personality and to provide them with a level of education that will enable them to
enjoy other rights, such as the right to freedom of opinion and expression. 156
150
Ibid.
151
The right of families to protection is modelled on art 23 of the ICCPR, above n 1.
152
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 14.
153
HRC, General Comment No 16, above n 107, [5]; HRC, General Comment No 19: Protection of the Family, the
Right to Marriage and Equality of the Spouses (1990) [2], available from
http://www.ohchr.org/english/bodies/hrc/comments.htm.
154
HRC, General Comment No 19, above n 153, [3].
155
HRC, General Comment No 17: Rights of the Child (1989) [3], available from
http://www.ohchr.org/english/bodies/hrc/comments.htm. The Inter-American Court of Human Rights has held that
an analogous provision imposes a positive obligation to ensure access to the conditions that guarantee a dignified
existence’: ‘Street Children’ Case, Inter-American Court of Human Rights, Judgment of 19 November 1999, InterAm. Ct. H.R. (Ser. C) No. 63.
156
Ibid.
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The HRC has also stated that all necessary measures should be taken ‘ensure that children
fully enjoy the other rights enunciated in the Covenant. 157
3.13
Taking Part in Public Life
It is a central principle of the international human rights framework that all people have the
right, and should have the opportunity without discrimination, to participate in public affairs
and, in particular, in decision-making processes that affect them.158 The concept of ‘public
affairs’ is broad and extends to matters relevant to or affected by the exercise of governmental
power across all levels (ie, local and state) and arms (ie, the legislature, executive and
judiciary) of government.159
The rights to participate in the conduct of public affairs, to vote and to be elected at periodic
elections, and to have equal access to the Victorian public service, are recognised in s 18 of
the Charter. The section is modelled on art 25 of the ICCPR.160
In art 25 of the ICCPR, the rights to take part in public life are guaranteed to ‘[e]very citizen’.
In s 18 of the Charter, the rights to vote and be elected at periodic elections, and to have
equal access to the Victorian public service, are guaranteed to ‘[e]very eligible person’ (which
in effect is likely to mean, for the most part, ‘every citizen’ of capacity and age), but the right to
participate in public affairs extends to ‘[e]very person in Victoria’. The right to participate in
public affairs conferred by the Charter is thus broader in terms than that in the ICCPR.
In relation to art 25 of the ICCPR, the following principles apply:

‘Any conditions which apply to the exercise of the rights protected by article 25 should be
based on objective and reasonable criteria.’ 161 All of the following comments should be
read in light of this general principle. For example, the right to vote at elections can only
be restricted by reference to ‘objective and reasonable criteria’ such as by the setting of a
minimum age.162
157
Ibid.
158
CESCR, Substantive Issues Arising in the Implementation of the International Covenant in Economic, Social
and Cultural Rights, above n 32, [12].
159
HRC, General Comment No 25: The Right to Participate in Public Affairs, Voting Rights and the Right of Equal
Access to Public Service (1996) [5], available from http://www.ohchr.org/english/bodies/hrc/comments.htm. For
further HRC jurisprudence on the right to participate in public life, see
http://www.bayefsky.com/bytheme.php/id/1187.
160
There are broadly equivalent provisions in: Human Rights Act 2004 (ACT) s 17; Canadian Charter of
Fundamental Rights and Freedoms art 3 (‘Canadian Charter’); New Zealand Bill of Rights Act 1990 (NZ) s 12;
Constitution of the Republic of South Africa 1996 (Sth Afr) (‘South African Constitution’) s 19; and the European
Convention on Human Rights, First Protocol, art 3. The Canadian Charter is part of the Canadian Constitution
Act 1982, itself being Schedule B to the Canada Act 1982 (UK) c 11. The European Convention on Human
Rights has been largely incorporated into UK law by the Human Rights Act 1998 (UK).
161
HRC, General Comment No 25, above n 161, [4].
162
Ibid [10].
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities

The right to take part in the conduct of public affairs encompasses legislative, executive
and administrative powers, taking in public administration and policy ranging from the
international through to the regional and local level. 163

Methods of participation in public life include: exercising legislative or executive power;
amending a state’s constitution; voting in referenda and elections; taking part in popular
assemblies; and engaging in public debate and dialogue with elected representatives. 164

There must be ‘[g]enuine periodic elections … held at intervals which are not unduly long
and which ensure that the authority of government continues to be based on the free
expression of the will of the electors’.165 The state must ensure that all persons entitled
to vote are able to do so, including by not instituting obstacles to registration or excluding
the homeless, prohibiting intimidation and coercion of voters, and conducting education
and registration campaigns.166 Positive measure should be taken to overcome specific
difficulties, such as illiteracy, language barriers, poverty or impediments to freedom of
movement which prevent people entitled to vote from exercising their rights effectively.
The state is under numerous other obligations in relation to elections. 167

Strategies must be developed, special measures taken and resources dedicated to
provide for the consultation and inclusion of individuals and groups who are marginalised
or have special needs (such as people experiencing homelessness or poverty) in the
development and implementation of public policies and programs.168

For access to the public service to be equal: ‘the criteria and processes for appointment,
promotion, suspension and dismissal must be objective and reasonable’. In some
circumstances, affirmative measures for specific citizens or classes of citizens may be
appropriate. Access should be based on principles of equal opportunity and merit, and
should include security of tenure.169 The term ‘public service’ is quite broad. 170
163
Ibid [5]. In South Africa, the Constitutional Court has recently held that the right to participate in public affairs
requires parliament to provide people with a meaningful opportunity to be heard in the making of laws that will
govern or affect them, including by convening adequate and accessible public hearings into Bills prior to
enactment and by facilitating the provision of oral and written submissions: see Doctors for Life International v
The Speaker of the National Assembly & Ors [2006] CCT 12/05 (17 August 2006) at
http://www.constitutionalcourt.org.za/uhtbin/hyperion-image/J-CCT12-05. The Court will grant a margin of
appreciate or discretion to parliament as to how and the extent to which it facilitates public participation, but
measures taken must be ‘reasonable’, having regard to issues such as the impact of the legislation on the public:
see also Matatiele Municipality & Ors v President of the Republic of South Africa & Ors [2006] CCT 73/05 (18
August 2006) at http://www.constitutionalcourt.org.za/uhtbin/hyperion-image/J-CCT73-05A.
164
HRC, General Comment No 25, above n 161, [6]–[8].
165
Ibid [9].
166
Ibid [11].
167
See Ibid [9]–[21].
168
Ibid. See also UN OHCHR, Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies
(2002) 16–17 [Guideline 5], 48–52 [Guideline 14].
169
HRC, General Comment No 25, above n 161, [23], [24].
170
Protection has been afforded to schoolteachers and lecturers in universities: see respectively Delgado Paez v
Colombia, HRC, Communication No 195/1985, UN Doc CCPR/C/39/D/195/1985 (12 July 1990); Aduayom v
39
Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities

The rights guaranteed by art 25 can only be fully supported by concomitant freedoms of
expression, assembly and association, including (but not limited to) a free press and the
freedom to organise politically.171
3.14
Cultural Rights
The rights of persons with particular cultural, religious, racial and/or linguistic backgrounds to
enjoy their culture, practise their religion, and use their language in community with others of
their background are recognised in s 19(1) of the Charter.
Section 19(2) specifically recognises that Aboriginal persons have distinct cultural rights which
include enjoyment of their identity and culture, maintenance and use of their language,
maintenance of kinship ties, and maintenance of ‘their distinctive spiritual, material and
economic relationship with the land and waters and other resources with which they have a
connection under traditional laws and customs’.
Section 19 of the Charter is modelled on art 27 of the ICCPR; in particular, s 19(2) reflects
decisions of the HRC extending art 27 to the protection of rights of indigenous peoples. 172
The section also draws on s 4 of the Multicultural Victoria Act 2004 (Vic).173
In relation to art 27 of the ICCPR, the following principles apply:

The particular rights of members of ethnic, religious or linguistic minorities recognised in
art 27 are separate from and in addition to the general rights that such people enjoy
under other provisions of the Covenant in common with everyone else.174

The rights recognised in art 27 are conferred on all members of minority groups existing
within a state party, even if they are not nationals, citizens or permanent residents of the
state. The rights are enjoyed equally by temporary visitors to a state.175 The state does
not have power to define a ‘minority’ or its membership.176
Togo, HRC, Communications Nos 422/1990, 423/1990 and 424/1990, CCPR/C/51/D/422/1990,
CCPR/C/51/D/422/423/1990 and CCPR/C/51/D/422/424/1990 (30 June 1994).
171
HRC, General Comment No 25, above n 161, [8], [12], [25].
172
See, eg, Lovelace v Canada, HRC, Communication No 24/1977 (30 July 1981); Report of the Human Rights
Committee, GAOR, 36th sess, Supp 40, UN Doc A/36/40, 166; Kitok v Sweden, HRC, Communication No
197/1985, CCPR/C/33/D/197/1985 (27 July 1988); Ominayak v Canada, HRC, Communication No 167/1984, UN
Doc CCPR/C/38/D/167/1984 (26 March 1990).
173
There are broadly equivalent provisions in the Human Rights Act 2004 (ACT) (s 27), New Zealand Bill of
Rights Act 1990 (s 20) and South African Constitution (ss 30, 31).
174
HRC, General Comment No 23: The Rights of Minorities (1994) [1], available from
http://www.ohchr.org/english/bodies/hrc/comments.htm. For further HRC jurisprudence on the rights of minorities,
see http://www.bayefsky.com/bytheme.php/id/922 and on cultural rights, see
http://www.bayefsky.com/bytheme.php/id/751.
175
Ibid [5.2].
176
Ibid; Lovelace v Canada, HRC, Communication No 24/1977 (30 July 1981); Report of the Human Rights
Committee, GAOR, 36th sess, Supp 40, UN Doc A/36/40, 166.
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities

States may be under an obligation to take ‘positive measures … to protect the identity of
a minority and the rights of its members to enjoy and develop their culture and language
and to practise their religion, in community with the other members of the group’. 177

One form in which culture manifests itself is in ‘particular way[s] of life associated with the
use of land resources, especially in the case of indigenous peoples’.178 This is
recognised in s 19(2) of the Charter, which goes beyond the express provisions of the
ICCPR.

The protection of rights provided by art 27 ‘is directed towards ensuring the survival and
continued development of the cultural, religious and social identity of the minorities
concerned, thus enriching the fabric of society as a whole’. 179
3.15
Property Rights
Section 20 of the Charter provides that a person must not to be deprived of property other
than in accordance with law. This section has no direct equivalent in the ICCPR.180 However,
the ICCPR does require states parties to the Covenant to respect and ensure to all individuals
within their territories the rights recognised in the Covenant without any distinction, including
as to property.181
Although the term ‘property’ is not defined in the Charter, it is likely to be interpreted broadly to
include both real and personal property, and possibly also intellectual property.
The term ‘deprived’ is similarly not defined in the Charter but is likely to include transfer,
extinguishment, disposition, destruction or substantial lessening of value.
The Human Rights Consultation Committee, on whose report the Charter was largely
modelled, referred to the federal constitutional guarantee of ‘just terms’ where property is
compulsorily acquired by the state and noted that the guarantee does not apply to property
acquired under state law.182 However, the right ‘does not provide a right to compensation’. 183
Beyond this, it is difficult to comment on the likely content of this right. The broadly equivalent
rights in the European Convention on Human Rights and the South African Constitution are
expressed in much more detail than s 20 of the Charter and so jurisprudence of courts on
those provisions is likely to be of limited value in interpreting s 20.
177
General Comment No 23, above n 174, [6.2].
178
Ibid [7].
179
Ibid [9].
180
There are broadly equivalent provisions in the European Convention on Human Rights (first protocol, art 1)
and the South African Constitution (s 25).
181
ICCPR, above n 1, art 2(1).
182
Human Rights Consultation Committee, Rights, Responsibilities and Respect: Report of the Human Rights
Consultation Committee (2005) 36.
183
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 15. See also
Halwood Corporation (in liq) v Roads Corporation [2008] VSC 28 (14 February 2008).
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
3.16
Right to Liberty and Security of Person
The rights of persons:

to liberty and security;

not be arbitrarily arrested or detained;

not be deprived of liberty except in accordance with law;

to be informed of the reasons for being arrested and of any proceedings to be brought
against them;

to promptly be brought before a court and brought to trial; and

to other related procedures and guarantees, including the right not to be imprisoned
merely for being unable to fulfil a contractual obligation,
are recognised in s 21 of the Charter. This section is modelled on art 9 of the ICCPR, except
the right to freedom from imprisonment for contractual breach, which is modelled on art 11.184
According to the Explanatory Memorandum, by contrast to the equivalent provision in the
Canadian Charter, s 21 of the Victorian Charter is ‘concerned primarily with physical liberty
[and] is not intended to extend to such matters as a right to bodily integrity, personal
autonomy or a right to access medical procedures’. 185
In relation to art 9 of the ICCPR, the HRC has stated that following principles apply:

The right applies to all deprivations of liberty and not just in respect of criminal cases,
listing deprivations in the instances of ‘mental illness, vagrancy, drug addiction,
educational purposes, [and] immigration control’ as examples.186 This includes
preventive detention.187

The state has horizontal obligations to protect individuals’ rights to personal security as
against other private individuals.188

The right to liberty probably does not preclude states from imposing restrictions on
people’s ability to move freely within a state. 189 However, such restrictions may violate
the right to freedom of movement.190
184
There are broadly equivalent provisions in the Human Rights Act 2004 (ACT) (s 18), Canadian Charter (art 7),
New Zealand Bill of Rights Act 1990 (s 22), South African Constitution (s 12) and European Convention on
Human Rights (art 5).
185
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 26.
186
HRC, General Comment No 8: Right to Liberty and Security of Persons (1982) [1], available from
http://www.ohchr.org/english/bodies/hrc/comments.htm. For further HRC jurisprudence on the right to liberty and
security of person, see http://www.bayefsky.com/bytheme.php/id/1131.
187
Ibid [4].
188
Delgado Paez v Colombia, HRC, Communication No 195/1985, UN Doc CCPR/C/39/D/195/1985 (12 July
1990).
189
Celepli v Sweden, HRC, Communication No 456/1991, UN Doc CCPR/C/51/D/456/1991 (26 July 1994).
190
ICCPR, above n 1, art 12; the Charter s 12.
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Chapter 5 – The Victorian Charter of Human Rights and
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
Pre-trial detention should only be used in exceptional circumstances, and should be as
short as possible.191

The extent of the requirement that a person ‘promptly’ be brought before a court and to
trial is unclear. It has been suggested that somewhere between three and five days is
likely to be the limit, but that there are signs that there is a trend towards a stricter view
regarding this limit.192
While art 9 of the ICCPR is generally concerned with the lawfulness of detention, the HRC
has stated that:
the notion of ‘arbitrariness’ must not be equated with ‘against the law’ but be
interpreted more broadly to include such elements as inappropriateness and injustice.
Furthermore, remand in custody could be considered arbitrary if it is not necessary in
all the circumstances of the case … the element of proportionality becomes relevant
in this context.193
In A v Australia,194 the HRC also stated that the following considerations are relevant to
whether detention is arbitrary:

whether there has been individual consideration of whether detention is necessary rather
than a blanket decision to detain a class of people;

the length of time of non-punitive detention; and

whether detention is a disproportionate measure in the circumstances.
The HRC found in that case that administrative detention of an asylum seeker was arbitrary
and in breach of art 9 on the basis that he was detained for four years pursuant to a blanket
policy of detaining all persons in his situation.
In the United Kingdom, the following situations, among others, have been argued to constitute
a breach of the analogous right to personal freedom under art 5 of the European Convention
on Human Rights:

191
delays in the processing of asylum applications while the applicants were held in
detention;195
HRC, General Comment No 8, above n 186, [3].
192
Joseph, Schultz and Castan, above n 75, 222–3, citing Van der Houwen v The Netherlands, HRC,
Communication No 583/1994, UN Doc CCPR/C/54/D/583/1994 (24 July 1995), Jijon v Ecuador, HRC,
Communication No 277/1988, UN Doc CCPR/C/44/D/277/1988 (26 March 1992), and HRC, Consideration of
Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human
Rights Committee: Zimbabwe, UN Doc CCPR/C/79/Add.89 (1998) [17].
193
A v Australia, HRC, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (3 April 1997) [9.2] (italics
added). See also Van Alphen v The Netherlands, HRC, Communication No 305/1988, UN Doc
CCPR/C/39/D/305/1988 (15 August 1990) [5.8].
194
Ibid [9.1]–[9.7].
195
R (Saadi, Maged, Osman and Mohammed) v Secretary of State for the Home Department [2002] 1 WLR 3131.
Note, however, that while the UK High Court found a breach of art 5, this was overturned by the Court of Appeal.
The Court of Appeal judgment was upheld by the House of Lords and, subsequently, the European Court of
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities

the imposition of mandatory life sentences for murder;196

the detention of persons for several hours in a police cordon; 197

delays in the process for reviewing the involuntary detention of persons for mental health
treatment purposes;198 and

delays in the consideration of an application for parole entitled a prisoner.199
The European Court of Human Rights has also considered the right to liberty and security,
particularly the right to freedom from arbitrary detention, in a number of cases pertaining to
remand detention. This jurisprudence establishes that:

a person charged with an offence should always be released pending trial, unless the
prosecution can show there are ‘relevant and sufficient’ reasons to justify detention;

a reasonable suspicion that a person has committed an offence is a necessary
precondition for the lawfulness of detention but, after a certain lapse of time, it no longer
suffices;

the ‘gravity of the charge(s)’ and the ‘severity of [a] potential sentence’ will not in itself
legitimise prolonged detention;

continued detention will only be justified if there are specific indications of a public interest
which, notwithstanding the presumption of innocence, outweigh the rule of respect for
individual liberty;

the state must ‘scrupulously examine’ and address ‘evolving circumstances’ in order to
legitimise the continued deprivation of liberty of a defendant. ‘Mere repetition’ of earlier
rationales in the ‘later stages of investigation’ will not justify continued detention;

the authorities must also demonstrate ‘due and special diligence’ in ensuring the
expeditious conduct of proceedings; and

detained persons must have the ability to ‘obtain a review by a court of the lawfulness of
their detention both at the time of the initial deprivation of liberty and, where new issues of
lawfulness are capable of arising, periodically thereafter’.200
Human Rights: Saadi v United Kingdom, European Court of Human Rights (4th Section), Application No 13229/03,
11 July 2006.
196
R v Lichniak; R v Pyrah [2003] 1 AC 903.
197
Austin & Saxby v Metropolitan Police Commissioner [2005] EWHC 480. In this case, the UK High Court held
that the detention of the claimants for several hours in a police cordon constituted a deprivation of their liberty
contrary to article 5 of the ECHR but was justified as there had been a conditional intention to arrest those whom
it was lawful and practicable to arrest. Additionally, the detention although amounting to false imprisonment had
been necessary for the protection of the crowd to detain them until dispersal could be safely arranged.
198
R (on the application of KB) v Mental Health Review Tribunal [2004] QB 936. See also R v Secretary for the
Home Department & Anor, ex parte IH [2002] EWCA Civ 646.
199
Johnson v Secretary of State for the Home Department [2007] EWCA Civ 427; R (on the application of
Cooper) v Parole Board [2007] EWHC 1292 (Admin).
200
Benjamin and Wilson v United Kingdom (2003) 36 EHRR 1. See also Melnikova v Russia [2007] ECHR
24552/02 (21 June 2007); Duyum v Turkey [2007] ECHR 57963/00 (27 March 2007); Tereszczenko v Poland
[2007] ECHR 37326/04 (3 April 2007); Kreisz v Hungary [2007] ECHR 12941/05 (3 April 2007).
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Chapter 5 – The Victorian Charter of Human Rights and
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3.17
Humane Treatment When Deprived of Liberty
The right to be treated humanely when deprived of liberty is recognised in s 22 of the Charter.
In addition to establishing the right of all persons deprived of liberty to be treated with
humanity and with respect for the inherent dignity of the human person, s 22 also establishes
that accused persons who are detained and persons who are detained without charge should:

generally be segregated from convicted offenders;201 and

be treated in a way appropriate to a person who has not been convicted. 202
This section is modelled on art 10 of the ICCPR, but has a wider scope in that it specifically
refers to the right of persons who are detained but have not been convicted to humane
treatment.203
In relation to art 10 of the ICCPR, the following principles apply:

The rights apply ‘to any one deprived of liberty under the laws and authority of the State
who is held in prisons, hospitals — particularly psychiatric hospitals — detention camps
or correctional institutions or elsewhere’. 204 This is reflected in the wording of the
Charter, noted above.205

The Standard Minimum Rules for the Treatment of Prisoners 206 and the Body of
Principles for the Protection of all Persons under Any Form of Detention or
Imprisonment207 should be taken into account in determining the content of the obligation to
treat detainees with humanity and dignity. The travaux preparatoires of the ICCPR support
that approach in relation to the Minimum Rules208 and the HRC has applied the Minimum
Rules in giving content to article 10 and, in connection with article 10, have asked State
parties in their reports to indicate to what extent they are applying the Minimum Rules and
201
Section 22(2).
202
Section 22(3).
203
There are broadly equivalent provisions in the Human Rights Act 2004 (ACT) (s 19), New Zealand Bill of
Rights Act 1990 (s 22) and South African Constitution (s 35(2)(e)).
204
HRC, General Comment No 21 (Replaces General Comment 9) concerning Humane Treatment of Persons
Deprived of Liberty (1992) [2], available from http://www.ohchr.org/english/bodies/hrc/comments.htm. For further
jurisprudence on the right to human treatment of persons in detention, see
http://www.bayefsky.com/bytheme.php/id/1006.
205
The New Zealand Court of Appeal has held that detention includes not only confinement, but also extends to
any ‘substantial intrusion on personal liberty’: Police v Smith and Herewini [1994] 2 NZLR 306.
206
Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
Geneva, Switzerland (1955), available at http://www.ohchr.org/english/law/treatmentprisoners.htm (‘Standard
Minimum Rules’).
207
Adopted by the UN General Assembly in GA Res 43/173, GAOR, 43 rd sess, 76th plen mtg, UN Doc
A/RES/43/173 (9 December 1988), available at http://www.ohchr.org/english/law/bodyprinciples.htm (‘Body of
Principles’).
208
Mark Bossuyt, Guide to the Travaux Preparatoires of the International Covenant on Civil and Political Rights
(1987) 233.
45
Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
the Body of Principles.209 Carr J (dissenting in the overall result) used the Minimum Rules
and the Body of Principles to construe article 10 in respect of the right to humane treatment
in detention in Wu v Minister for Immigration for Ethnic Affairs.210

Article 10 imposes a positive obligation on the state towards persons who are particularly
vulnerable because of their status as persons deprived of liberty. In accordance with this
article, persons deprived of their liberty may not be:
subjected to any hardship or constraint other than that resulting from the deprivation
of liberty; respect for the dignity of such persons must be guaranteed under the same
conditions as for that of free persons. Persons deprived of their liberty enjoy all the
rights set forth in the Covenant, subject to the restrictions that are unavoidable in a
closed environment.211

The implementation of the right is not dependent on the material resources available to
the state and the right must be enjoyed by all persons without any kind of distinction as to
race, sex, etc.212

Article 10(3) provides, inter alia, that ‘[t]he penitentiary system shall comprise treatment
of prisoners the essential aim of which shall be their reformation and social rehabilitation’.
The HRC has emphasised that every penitentiary system must seek to realise that aim
and must not be ‘only retributory’.213 There is no equivalent provision in s 22 of the
Charter but it is arguable that the same essential aim informs s 22.
Breaches of art 10(1) have been found, inter alia, in cases where the prisoner is denied
adequate bedding, food, exercise or medical attention; is exposed to unsanitary food/water
and/or living conditions; physical abuse; extended periods of isolation; overcrowding; lack of
educational opportunities, work or reading materials; and physical, psychological and verbal
abuse.214
Article 10(1) also complements the ban on torture or other cruel, inhuman or degrading
treatment or punishment contained in art 7 of the ICCPR. Thus, persons deprived of their
liberty may not be subjected to treatment that is contrary to art 7, including medical and
scientific experimentation, nor may they be subjected to any hardship or constraint other than
that resulting from the deprivation of liberty. 215 Consistently with the jurisprudence of the HRC
209
Kurbanov v Tajikistan, HRC, Communication No 1096/2002,UN Doc CCPR/C/79/D/1096/2002 [7.8]; Mukong v
Cameroon, HRC, Communication No 458/1991, UN Doc CCPR/C/51/D/458/1991 (1994) [9.3]; HRC, General
Comment No 21, above n 204, [5].
210
(1996) 64 FCR 245, 265.
211
HRC, General Comment No 21, above n 204, [3].
212
Ibid [4].
213
Ibid [10].
214
See, eg, Robinson v Jamaica, HRC, Communication No 731/1996, UN Doc CCPR/C/68/D/731/1996 (2000);
Sextus v Trinidad and Tobago, HRC, Communication No 818/1998, UN Doc CCPR/C/72/D/818/1998 (2001);
Lantsova v Russian Federation, HRC, Communication No 763/1997, UN Doc CCPR/C/74/D/763/1997 (2002);
Freemantle v Jamaica, HRC, Communication No 625/1995, UN Doc CCPR/C/68/D/625/1995 (2000).
215
HRC, General Comment No 21, above n 204, [3].
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
in respect of art 7, the HRC has recognised that mental distress and deterioration caused by
detention may constitute a breach of art 10(1).
3.18
Children in the Criminal Process
The rights of children in the criminal process are recognised in s 23 of the Charter. These
include:

the right of a child who is detained to be segregated from adults in detention;

the right of an accused child to be brought to trial as quickly as possible (which goes
beyond the requirement of ‘a reasonable time’ as required in respect of adults);216 and

the right of a child who has been convicted to be treated in a way appropriate to their
age.
The Charter defines ‘child’ as a person under the age of 18. 217
This section is modelled on arts 10(2)(b) and 10(3) of the ICCPR.218
The interpretation and application of s 23 may be further influenced by other international
instruments relevant to children in the criminal process, including:
3.19

United Nations Rules for the Protection of Juveniles Deprived of their Liberty;219

United Nations Standard Minimum Rules for the Administration of Juvenile Justice;220 and

United Nations Guidelines for the Prevention of Juvenile Delinquency.221
Fair Hearing
The right to a ‘fair hearing’ is recognised in s 24 of the Charter, which provides that:
(1)
A person charged with a criminal offence or a party to a civil proceeding has the
right to have the charge or proceeding decided by a competent, independent
and impartial court or tribunal after a fair and public hearing.
See, eg, Perovic v CW (Unreported, ACT Children’s Court, Magistrate Somes, 1 June 2006) available at
http://acthra.anu.edu.au/cases/case.php?id=49.
216
217
Although not specified in the ICCPR, the HRC has suggested that the guarantees in art 10 should apply to all
persons under the age of 18: see HRC, General Comment No 17, above n 155, [4].
218
There are broadly equivalent provisions in the Human Rights Act 2004 (ACT) (s 20) and the New Zealand Bill
of Rights Act 1990 (s 25) and South African Constitution (s 28). For HRC jurisprudence on the rights of children
in the criminal process, see http://www.bayefsky.com/bytheme.php/id/1112.
219
Adopted by General Assembly resolution 45/113 of 14 December 1990, available at
http://www.ohchr.org/english/law/res45_113.htm.
220
Adopted by General Assembly resolution 40/33 of 29 November 1985, available at
http://www.ohchr.org/english/law/beijingrules.htm.
221
Adopted and proclaimed by General Assembly resolution 45/112 of 14 December 1990, available at
http://www.ohchr.org/english/law/juvenile.htm.
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Chapter 5 – The Victorian Charter of Human Rights and
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(2)
Despite sub-section (1), a court or tribunal may exclude 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.
(3)
All judgments or decisions made by a court or tribunal in a criminal or civil
proceeding must be made public unless the best interests of a child otherwise
requires or a law other than this Charter otherwise permits.
Section 24 applies to both persons charged with criminal offences222 and persons who are
party to a civil proceeding.223
The right to a ‘fair hearing’ under s 24 of the Victorian Charter is broadly similar to provisions
in other jurisdictions, including art 14(1) of the ICCPR,224 although the wording used varies
slightly.
The concept of a fair hearing contains many elements and the standards against which a
hearing is to be assessed in terms of fairness are interconnected. At the very least, the
minimum basic elements of the right to a fair hearing can be said to consist of:

equal access to, and equality before, the courts;

the right to legal advice and representation;

the right to procedural fairness;

the right to a trial without undue delay;

the right to a competent, independent and impartial tribunal established by law;

the right to a public hearing;

the right to have the free assistance of an interpreter where necessary; and

certain rights in respect of self-represented litigants.
Each of these elements of the right to a fair hearing is discussed further below.
It is notable that while many of these elements may also arise under the common law, s 24 of
the Charter provides for ‘a positive right to a fair trial, rather than the right not to be tried
unfairly as the common law provides’.225
According to UK jurisprudence, a person is ‘charged with a criminal offence’ when he or she is officially alerted
to the likelihood of criminal proceedings against him or her, normally being the time when he or she is formally
charged or served with a summons. Arrest would not ordinarily mark the beginning of the period: see, eg,
Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, paras 26-28, 31, 43, 44, 45, 128,
129, 140 and 141.
222
223
A civil dispute does not necessarily have to be in a court for the right to a fair hearing to apply. From the UK
experience, if the procedure involves the decisive settlement of a genuine, serious dispute, for example
concerning a right or obligation and not merely the exercise of a discretion, then s 24 may apply.
224
There are broadly equivalent provisions in the Human Rights Act 2004 (ACT) (s 21), Canadian Charter (art 6),
New Zealand Bill of Rights Act 1990 (s 25), South African Constitution (s 35(3)) and the European Convention on
Human Rights (art 6).
225
R v Griffin [2007] ACTCA 6 (5 April 2007), [4] – [6] (Higgins CJ, Gray and Madgwick JJ).
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Chapter 5 – The Victorian Charter of Human Rights and
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(a)
Equal Access to Courts
Article 14 of the ICCPR has been interpreted to signify that all persons must be granted,
without discrimination, the right of equal access to the justice system. The administration of
justice must ‘effectively be guaranteed in all cases to ensure that no individual is deprived, in
procedural terms, of his/her right to claim justice’.226 This is inherently linked with notions of
equality before the courts and may raise issues of court fees, complexity of procedure, a right
to legal aid, awarding of costs and discrimination.
Courts have determined that equal access to the courts requires the legal system to be set up
in such a way as to ensure that people are not excluded from the court process. 227 However,
this right is not unlimited and courts have generally recognised the following categories of
exclusion from the court process:

litigants who bring cases without merit;228

bankrupts;

minors;

people who fall outside a reasonable time-limit or limitation period for bringing a case;229
and

other people where there is a legitimate interest in restricting their rights of access to a
court, provided the limitation is not more restrictive than necessary. 230
It is important to note, however, that the right to a fair hearing is a fundamental human right
which must not be limited in the mere interests of ‘practicality and convenience’. 231
Limitations on the right to equal access to courts are discussed in further detail below.
Equal access to courts has also been linked to the notion of equality before the courts. In
Olo Bahamonde v Equatorial Guinea, the HRC stated that ‘a situation in which an individual’s
attempts to seize the competent jurisdictions of their grievances are systematically frustrated
runs counter to the guarantees of Article 14(1)’.232
In Graciela Ato del Avellanal v Peru, the HRC was of the view that the preclusion of married
women from bringing suits regarding matrimonial property breached article 14(1) of the
ICCPR as it discriminated against litigants on the basis of sex and marital status. 233
226
HRC, Draft General Comment No 32: Article 14 Concerning the Right to Equality before Courts and Tribunals
and to a Fair Trial, CCPR/C/GC/32/CRP.1Rev.2 (2006), [2] available from
http://www.ohchr.org/english/bodies/hrc/comments.htm. See also Raymond v Honey [1983] 1 AC 1.
227
Department for Constitutional Affairs, Human Rights: Human Lives (2006), available at
www.dca.gov.uk/peoples-rights/human-rights/pdf/hr-handbook-public-authorities.pdf.
228
See, eg, Ashingdane v United Kingdom (1985) 7 EHRR 528, [58]; M v United Kingdom (1987) 52 DR 269,
270; Seal v Chief Constable of South Wales Police [2007] UKHL 31, [20].
229
Stubbings v United Kingdom (1996) 23 EHRR 213.
230
See generally Department for Constitutional Affairs, Human Rights: Human Lives (2006) 20.
231
R v McBride [2007] ACTSC 8 (13 February 2007).
232
Olo Bahamonde v Equatorial Guinea, HRC, UN Doc CCPR/C/49/D/468/1991, [9.4].
233
Graciela Ato del Avellanal v Peru, UN Doc CCPR/C/34/D/202/1986.
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Chapter 5 – The Victorian Charter of Human Rights and
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(b)
Right to Legal Advice and Representation
The jurisprudence regarding legal aid emphasises that the right to a fair hearing does not
impose an obligation on the state to provide free legal assistance in civil matters. It does,
however, require the state to make the court system accessible to everyone, which may itself
entail the provision of legal aid. Indeed, the complexity of some cases may actually require
legal aid to ensure a fair hearing.234
According to the HRC’s recent Draft General Comment on art 14 of the ICCPR, availability or
access to legal assistance is often determinative of whether or not a person can access the
relevant judicial proceedings or participate in them in a meaningful way. 235 The HRC also
encourages states to provide free legal aid in all types of cases where the individual cannot
afford it, but observed that there may be situations where states are positively obliged to
provide it.236
In P C and S v UK,237 the European Court held that the failure to provide an applicant with a
lawyer was a violation because, in the circumstances, legal representation was deemed to be
indispensable. Lack of legal representation prevented the party from putting forward their
case effectively because of the complexity, high emotional content and serious consequences
of the proceedings.
A state’s obligation to provide legal aid was further clarified in Steel and Morris v UK in which
the European Court held that states ‘enjoy a free choice of the means to be used in
guaranteeing litigants the right to a fair trial.’238 The European Court reiterated that legal aid
schemes represent but one of those means. The Court added that the right of access to a
lawyer is not absolute and may be subject to restriction provided that those restrictions pursue
a legitimate aim and are proportionate. It may be acceptable to impose conditions on the
grant of legal aid based on the financial situation of the applicant or on the prospects of their
success in the proceedings. It is not incumbent upon the state to seek, through public funds,
to ensure total equality of arms as long as each side is afforded a reasonable opportunity to
present their case under conditions that do not put them at a substantial disadvantage.
The case of Currie v Jamaica239 involved a prisoner on death row and his ability to launch a
constitutional challenge. The HRC found that the state’s denial of legal aid amounted to a
denial of a fair hearing. Although the HRC did not regard provision of legal aid as an absolute
right of litigants, it held that the state was under an obligation to make proceedings in the
constitutional court available and effective. The complexity of constitutional proceedings was
a significant factor in determining that legal aid was required. It was not the denial of legal aid
234
Department for Constitutional Affairs, above n 227, 20. See also Airey v Ireland [1979] 6289/73 ECHR 3 (9
October 1979); R v Home Secretary, Ex parte Leech (No 2) [1994] QB 198; New Brunswick (Minister of Health
and Community Services ) v G (J) [1999] 3 SCR 46.
235
Draft General Comment 32, above n 226, [3].
236
Ibid.
237
56547/00 [2002] ECHR 604 (16 July 2002).
238
Steel and Morris v UK, 68416/01 [2005] ECHR 103 (15 February 2005).
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
itself that amounted to a breach but rather that its absence resulted in a denial of access to
the courts, which the state did not rectify in any other way.
Similarly, in Golder v United Kingdom,240 the applicant, a prisoner, was denied access to his
solicitor to discuss the prospect of bringing a civil suit. This was held to violate his right to a
fair hearing because although not preventing him from bringing a proceeding altogether, it did
prevent him from commencing it at that time. The European Court held that the fair conduct
of a civil proceeding is meaningless if one does not have the right to bring the proceeding in
the first place and explained that the convention presupposes the right of access to the courts
just as it presupposes the existence of the courts themselves. 241
In Airey v Ireland,242 the European Court held that fulfilment of a duty under the ECHR
requires positive action by the state and thus it is a positive duty to ensure effective access to
the courts. Likewise, in its Concluding Observations on Norway, the HRC noted that civil
proceedings are serious enough to warrant an entitlement to legal aid when they concern the
attempted enforcement of a right protected by the ICCPR. 243
Most recently, in Jarrett (R on the Application of) v Legal Services Commission 244 and
Challender (the Queen on the application of) v Legal Services Commission,245 the UK High
Court held that where the withholding of legal aid would make the assertion of a civil claim
practically impossible or where it would lead to an obvious unfairness of the proceedings, the
state will be positively required to provide civil legal aid.
In sum, the jurisprudence indicates that an individual’s access to the justice system should not
be prejudiced by reason of his or her inability to afford the cost of independent advice or legal
representation.
(c)
Costs of Litigation
An important aspect of ensuring equal access to justice is the applicant’s ability to pay the
associated costs and the discriminatory effect this has on disadvantaged members of the
community.246
In Kreuz v Poland,247 the requirement to pay court fees was held to be a violation of article 6
of the ECHR because it imposed a disproportionate burden on the individual. While the right
to a fair hearing does not endow citizens with the right to free civil proceedings, the European
239
UN Doc CCPR/C/50/D/377/1989.
240
4451/70 [1975] ECHR 1 (21 February 1975).
241
Ibid.
242
6289/73 [1979] ECHR 3 (9 October 1979).
243
Concluding Observation on Norway, UN Doc CCPR/C/79/Add. 112(1999). This was particularly so in the
context of the discriminatory impact of high legal costs and the absence of legal aid on Sami protection of
traditional livelihood from competing land uses.
244
[2001] EWHC Admin 389.
245
[2004] EWHC 925 (Admin).
246
See, eg, R v Lord Chancellor, Ex parte Witham [1998] QB 575 (Laws J).
247
28249/95 [2001] ECHR 398 (19 June 2001).
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
Court said that the imposition of court fees must be balanced against the burden placed on
the individual litigant. The relevant factors in this case were:

the level of court fees involved;

the court had refused his application without taking into consideration any evidence; and

under the relevant domestic law, an exemption from fees could be revoked when the
circumstances of the individual changed, effectively suspending the fees temporarily and
allowing the applicant to commence his proceedings.
The significance of the issues raised by a case is also relevant to the compatibility or
incompatibility of court fees with the right to a fair hearing. 248
In Aarela v Finland,249 the HRC held that a rigid application of a policy to award costs to the
winning party may breach the right of access to justice contained in the right to a fair hearing.
The imposition of substantial costs against a disadvantaged claimant may prevent them from
bringing a proceeding at all and therefore hinder their ability to remedy a breach of their rights.
The HRC held that there should be judicial discretion to consider individual circumstances on
a case-by-case basis and that, without such a discretion, the imposition of indiscriminate costs
acts as a strong deterrent to the whole community, particularly its disadvantaged members, in
exercising their right to have their complaint heard.
Notions of fairness in matters relating to security for costs have undergone a case-by-case
development. In Ait Mouhoub v France,250 the requirement to pay 80,000 francs for
proceedings against the gendarmes was held to be a disproportionate obstacle to the author’s
access to court. However, in Tolstoy Miloslavsky v UK,251 the payment of 124,900 pounds
was not considered an infringement of art 6 of the ECHR.
It is clear that the availability of funding for the costs of litigation, including court fees,
disbursements and awards of costs is critical to ensuring access to justice for impecunious
litigants. In many cases, a lack of available funding creates a significant barrier to progressing
claims and may result in an individual being unable to access justice effectively.
(d)
Right to Procedural Fairness
Article 14 of the ICCPR provides procedural guarantees as to the conduct of a hearing.
Essentially, the right ensures litigants have the opportunity to present their case in conditions
without substantial disadvantage compared to the other party. However, the right to
procedural fairness does not necessarily amount to a guarantee of a favourable outcome and
248
See, eg, Ciorap v Moldova [2007] ECHR 70204/01 (19 June 2007), in which the European Court found a
violation of art 6 on the grounds that the applicant should have been exempted from paying court fees due to the
serious nature of his allegations of torture, regardless of his ability to pay.
249
Anni Aarela and Jouni Nakkalajarvi v Finland, UN Doc CCPR/C/73/D/779/1997.
250
22924/93 [1998] ECHR 97 (28 October 1998).
251
18139/91 [1995] ECHR 25 (13 July 1995).
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
errors of fact or law do not amount to a violation of the right.252 The procedural guarantees
include equal access to courts, fair and public hearings, and the competence, impartiality and
independence of the judiciary.253 The same procedural rights must be given to each party
involved unless distinctions can be justified on objective and reasonable grounds. 254
More specifically, the interests of equality between parties demand that each side be given
the opportunity to respond to evidence put forward by the other. This may include access to
material held by the other side or an equal ability to cross-examine witnesses.255 In Gertruda
Hubertina Jansen-Gielen v The Netherlands,256 the HRC stated that there is a duty imposed
on courts (in the absence of time limits) to ensure that each party has the opportunity to
challenge the documentary evidence that the other has filed and that proceedings should be
adjourned if necessary. The ECHR has also found that a fair hearing requires parties to have
the opportunity to have knowledge of and comment on all evidence adduced.257
In Anni Aarela and Jouni Nakkalajarvi v Finland,258 the authors were precluded from
responding to a brief the other party had submitted and which was then relied upon to their
detriment. The HRC held that justice required the ability of each party to contest the
arguments and evidence of the other party. The HRC also determined that the onus of
establishing unfairness lies on the author. 259
In the case of Daniels v Walker,260 the parties agreed on a joint expert in accordance with the
UK Civil Procedure Rules. However, one of the parties was dissatisfied with the report but
was denied permission to seek their own expert. They consequently argued a breach of the
right to a fair trial because denial had ‘barred the essential or fundamental part of [their] claim’.
The court agreed and said that where there were sound reasons for a party wishing to obtain
further evidence before deciding whether to challenge part or whole of a report, then the
request to instruct another expert should be allowed at the court’s discretion. If, however, the
damages claimed are modest, the court may, in the interests of proportionality, refuse the
request and merely allow the party to put questions to the expert who had already prepared
the report.
252
RM v Finland, UN Doc CCPR/C/35/D/301/1998. See also BdB v Netherlands, UN Doc
CCPR/C/35/D/273/1988 and Martinez Mercader et al v Spain, UN Doc CCPR/C/84/D/1097/2002.
253
BdB v Netherlands, UN Doc CCPR/C/35/D/273/1988.
254
Draft General Comment 32, above n 226, [3].
255
See, eg, R v Bersinic [2007] ACTSC 46 (6 July 2007) in which Connolly J of the ACT Supreme Court stated
that, where the defendant’s right to a fair trial under s 21 of the Human Rights Act 2004 (ACT) was compromised
because he was unable to access evidence or cross-examine certain witnesses on the grounds of national
security, it was ‘clearly correct and proper’ that the prosecution withdraw the charges.
256
UN Doc CCPR/C/71/D/846/1999.
257
Van Orshoven v Belgium, 20122/92 [1997] ECHR 33 (25 June 1997).
258
UN Doc CCPR/C/73/D/779/1997.
259
The HRC also stated that the procedural practice applied by domestic courts is a matter for the courts to
determine in the interests of justice.
260
[2000] 1 WLR 1382.
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In the case of Pappas v Noble,261 the ACT Supreme Court held that a provision in another Act
which had the effect of rendering evidence inadmissible that would otherwise be determinative
in civil proceedings would be inconsistent with the right to a fair trial.
(e)
Right to an Expeditious Hearing
According to the HRC’s Draft General Comment No 32, an important aspect of a fair hearing
is its expeditiousness. In fact, the most litigated requirement under art 6 of the ECHR is the
obligation to ensure that proceedings do not exceed a reasonable time.262 Delays in civil
proceedings that cannot be justified by the complexity of the case or the behaviour of the
parties are not compatible with the right to a fair hearing. 263 It is clear from the jurisprudence
that the level of expeditiousness required will depend very much on the circumstances of the
case. Factors to be taken into account include:

the type and complexity of the case;

the conduct and diligence of both sides of the dispute;

the conduct and diligence of the court; and

what is at stake for the applicant in the dispute. 264
Some examples of decisions on the reasonableness of delay include:

the European Court placed a greater emphasis on the need for an expeditious hearing in
the case of a terminally ill AIDS patient in X v France265 and in a case concerning the
adoption of a child in H v United Kingdom;266

the European Court held that an employment dispute which lasted 9 years was
unreasonable in the overall circumstances;267

the HRC has held that a delay of 7 years in a dismissal complaint was unreasonable, as
was a further two and a half year delay in the implementation of the remedy. 268
Conversely, two years and nine months was considered reasonable for a dismissal
complaint in Casanovas v France;269
261
[2006] ACTSC 39.
262
Rosalind English, Human Rights Update (2005) One Crown Office Row, available at
www.humanrights.1cor.com/247/.
263
General Comment 32, above n 226, [7]. See also Yves Morael v France UN Doc CCPR/C/36/D/207/1986 and
Ruben Turibio Munoz Hermoza v Peru UN Doc CCPR/C/34/D/203/1986, which held that a fair hearing in civil
proceedings required justice be rendered without undue delay.
264
See, eg, Kreisz v Hungary [2007] ECHR 12941/05 (3 April 2007).
265
18020/91 [1992] ECHR 45 (31 March 1992).
266
9580/81 [1987] ECHR 14 (8 July 1987).
267
Darnell v United Kingdom 15058/89 [1993] ECHR 47 (26 October 1993).
268
Ruben Turibio Munoz Hermoza v Peru, UN Doc CCPR/C/34/D/203/1986.
269
Casanovas v France, UN Doc CCPR/C/51/D/441/1990.
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Chapter 5 – The Victorian Charter of Human Rights and
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
the HRC held that 4 years in a case where a company’s affairs had been placed under
judicial supervision was a reasonable delay given the complexity of the case;270

in Fei v Colombia,271 a matter concerning the custody of children, the HRC considered the
case to be a clear breach of art 14 of the ICCPR because custodial issues particularly
require expeditious proceedings. Each matter took several years, there were inexplicable
delays on the part of the state and the determination was handed down before the
expiration of time to enter a defence;

in the ACT, s 21 of the ACT Act was used to allow a civil action to proceed despite the
expiry of time limitations and delay.272 In the circumstances, the court considered that to
deny the applicant would have been unjust and there was no prejudicial effect on the
other party.
A lack of resources and chronic under-funding of the legal system generally cannot be an
excuse for unacceptable delays.273 In Procurator Fiscal v Watson and Burrows, the House of
Lords (drawing on jurisprudence of the European Court) stated that it is generally incumbent
on contracting states to organise their legal systems so as to ensure that the reasonable time
requirement is honoured.274
In its Concluding Observations on Croatia,275 the HRC highlighted concerns over breaches of
art 14 arising from the suspension or discontinuance of cases because of the operation of
statutes of limitations where there had been delays in the administration of justice through no
fault of the litigants. The HRC stated that it is the obligation of the state to ensure compliance
with all the requirements of art 14 and that in this case it was necessary for Croatia to
accelerate reform of the judicial system through, among other things, the simplification of
procedures and the training of judges and court staff in efficient case management
techniques.
(f)
Right to a Public Hearing
Article 14 of the ICCPR guarantees the right to a public hearing as one of the essential
elements of the concept of a fair trial. It is a right belonging to the parties, but also to the
general public in a democratic society.
The publicity of a trial includes both the public nature of the hearings and the publicity of the
judgment eventually made in a case. The right to a public hearing means that the hearing
should be conducted orally and publicly. The court or tribunal is obliged to make information
about the time and venue of the hearing available and to provide adequate facilities for
attendance by interested members of the public, within reasonable limits.
270
Yves Morael v France, UN Doc CCPR/C/36/D/207/1986.
271
Fei v Colombia, UN Doc CCPR/C/53/D/514/1992.
272
Hanan Al-Rawahi v Mohammad Ali Niazi [2006] ACTSC 84.
273
Suzanne Lambert and Andrea Lindsay Strugo, Delay as a Ground of Review (2005) One Crown Office Row,
available at www.humanrights.org.uk/1030/.
274
Procurator Fiscal v Watson and Burrows [2002] UKPC D1, 55.
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These concepts were considered in G.A. Van Meurs v The Netherlands,276 where the HRC
held that labour disputes argued in oral hearings before a court are subject to the requirement
that they be held publicly. Importantly, the HRC noted that this is a duty imposed upon the
state and is not dependent on any request by the parties.
The right to a public hearing may be limited in certain circumstances where the interests of
morals, public order or national security, or the interests of those under 18 or the privacy of
the parties, require an exclusion of the public and the press. Article 6 of the ECHR provides
that:
… [The] public may be excluded from all or part of the trial in the interest of morals,
public order or national security in a democratic society, where the interests of
juveniles or the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice.
However, any exclusion of the public must only go as far as is necessary to protect those
interests. Even where the public has been excluded from the hearing, the court must
pronounce its judgment in public.
(g)
Right to an Interpreter
While the right to the free assistance of an interpreter is only guaranteed in criminal
proceedings,277 in certain circumstances, the right to a fair hearing in civil matters will include
the right to an interpreter. In the UK, public authorities must ensure that any person who is
subject to a decision-making process has access to an interpreter if required. 278
In Victoria, the court plays no role in civil proceedings in organising an interpreter to be
present or to ensure that the services of an interpreter are available where required. The
unavailability of interpreting services in the courts presents a major barrier to access to
justice. A party’s ability to participate in the legal process is severely undermined where he or
she is unable to afford to pay for an interpreter to attend a hearing.
(h)
Rights of Self-Represented Litigants
Courts have recognised that the right to a fair hearing is particularly important in respect of
self-represented litigants. The principles relevant to access to justice for self-represented
275
Concluding Observations on Croatia, UN Doc CCPR/CO/71/HRV (2001).
276
UN Doc CCPR/C/39/D/215/1986.
277 Section
25(2)(i) of the Victorian Charter; art 14(3)(f) of the ICCPR. Similar provisions are contained in the UK
Act and ACT Act. See also R v Yasso [2007] VSCA 306 (14 December 2007), in which the Victorian Court of
Appeal stated that: ‘It is, of course, an elementary requirement of natural justice that a defendant in criminal
proceedings be able to participate fully, to present argument and answer questions, and to understand everything
that is said by the bench and by opposing counsel. For a non-English speaking defendant, accurate interpreting is
vitally important.’ [at 2]
278
Department for Constitutional Affairs, above n 227, 23.
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
litigants, and the obligations of the court to ensure that self-represented litigants receive a fair
hearing, where recently summarised by the Supreme Court of Victoria as follows:
Every judge in every trial, both criminal and civil, has an overriding duty to ensure the
trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is
inherent in the rule of law and the judicial process. Equality before the law and equal
access to justice are fundamental human rights specified in the ICCPR. The proper
performance of the duty to ensure a fair trial would also ensure those rights are
promoted and respected.
Most self-represented persons lack two qualities that competent lawyers possess legal skill and ability, and objectivity. Self-represented litigants therefore usually
stand in a position of grave disadvantage in legal proceedings of all kinds.
Consequently, a judge has a duty to ensure a fair trial by giving self-represented
litigants due assistance. Doing so helps to ensure the litigant is treated equally
before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not
limited, for the judge must give such assistance as is necessary to ensure a fair trial.
The proper scope of the assistance depends on the particular litigant and the nature
of the case. The touchstones are fairness and balance. The assistance may extend
to issues concerning substantive legal rights as well as to issues concerning the
procedure that will be followed.279
(i)
Limitations on the Right to a Fair Hearing
The right to a fair hearing is not absolute. However, it is well established that any limitation on
the right must be in pursuit of a legitimate aim and there must be a reasonable proportionality
between the means employed and the aim sought to be achieved.280 Any limitations must be
based upon reasonable and objective grounds. 281 Furthermore, they should not impair the
‘essence’ of the right to a fair hearing.282
Determination of what is proportionate is heavily dependent on the individual circumstances of
the case. In ensuring equal and uninhibited access to justice, courts have to balance the
interests of individuals with the need to manage case load and avoid unnecessary delays.
The avoidance of delay is, in itself, part of ensuring better access to justice for genuine
279Tomasevic
v Travaglini & Anor [2007] VSC 337 (13 September 2007), [127]-[129] at
http://www.austlii.edu.au/au/cases/vic/VSC/2007/337.html.
280
Tinnelly & Ors v UK, 20390/92 [1998] ECHR 56 (10 July 1998); Ashingdane v United Kingdom (1985) 7 EHRR
528, [57]; Seal v Chief Constable of South Wales Police [2007] UKHL 31, [20], [55]-[56].
281
Kavanagh v Ireland, UN Doc CCPR/C/71/D/819/1998; Gangadin v Netherlands, UN Doc
CCPR/C/89/D/1451/2006 (4 April 2007), [4.2].
282
Ashingdane v United Kingdom (1985) 7 EHRR 528, [57]; Seal v Chief Constable of South Wales Police [2007]
UKHL 31, [56]. See also R v McBride [2007] ACTSC 8 (13 February 2007) in which the ACT Supreme Court held
that ‘issues of practicality and convenience must give way to the overwhelming interest, now recognised by the
Human Rights Act 2004, that every accused must be afforded a fair trial’.
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litigants.283 While restrictions impacting on the right to a fair hearing are allowed in some
cases, courts have acknowledged that a restrictive interpretation of the right to a fair hearing
should not be taken.284
In R v HM Attorney General, ex parte Andy Covey,285 the UK High Court made it clear that the
process of declaring someone a vexatious litigant was not necessarily an unjustified
interference with their right of access to the court. Restriction of a vexatious litigant was
required for legitimate protection of the legal process as well as those against whom the
respondent may decide to litigate in the future. The court held that exclusion was the only
proper course in the circumstances and it did not amount to a denial of the respondent's
access to a court under article 6. The European Court’s jurisprudence recognises the need
for the reasonable and proportionate ordering by the court of its processes, including the
requirement of a filter in some cases to ensure that the court processes are properly used. 286
3.20
Rights in Criminal Proceedings
Certain rights in respect of criminal proceedings are recognised in s 25 of the Charter. These
include the rights:

to be presumed innocent until proved guilty according to law;

to be informed promptly and in detail of the charge;

to have enough time and facilities to prepare a defence and to communicate with a
lawyer;

to be tried without unreasonable delay;

in certain circumstances, to have legal aid provided under the Legal Aid Act 1978 (Vic);287

to examine witnesses and to obtain their attendance;
283
Sir Anthony Clarke, Vexatious Litigants and Access to Justice: Past, Present and Future, First Keynote
Address, Conference on Vexatious Litigants (30 June 2006) available at
www.judiciary.gov.uk/publications_media/speeches/2006/sp300606.htm.
284
Moreira de Asevedo v Portugal, 11296/84 [1990] ECHR 26 (23 October 1990).
285
[2001] EWCA Civ 254.
286
Rosalind English, Human Rights Update (2000) One Crown Office Row, available at
www.humanrights.org.uk/374/.
287
Relevantly, by s 25(2) of the Charter:
A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees:
…
(d)
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 provided by Victoria Legal Aid under the Legal Aid Act 1978;
and
(e)
to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the
Legal Aid Act 1978; and
(f)
to have legal aid provided if the interests of justice require it, without any costs payable by him or her if
he or she meets the eligibility criteria set out in the Legal Aid Act 1978 …
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities

if necessary, to have the free assistance of an interpreter, assistants and communication
tools and technology; and

not to be required to incriminate oneself.
Section 25 also recognises the rights of a child charged with a criminal offence to a procedure
which is appropriate to their age and the aim of rehabilitation, and of any convicted offender to
review by a higher court. Section 25 is modelled on art 14(2)–(5) of the ICCPR.288
In relation to art 14(2)–(5) of the ICCPR, the following principles apply:

The presumption of innocence is ‘fundamental to the protection of human rights’. It
implies: ‘a right to be treated in accordance with [the principle that guilt cannot be
presumed until a charge has been proved beyond reasonable doubt]. It is, therefore, a
duty for all public authorities to refrain from prejudging the outcome of a trial.’ 289

The right to be informed promptly and in detail of the charge arises when a court or
prosecution authority ‘decides to take procedural steps against a person suspected of a
crime or publicly names him as such’.290

The right to time and facilities includes access to documents and other evidence needed
to prepare the case of the accused.291 Whether the requirements of the right are satisfied
may to some extent depend on the actions of the accused’s counsel. 292 The right to
communicate with counsel will be violated by incommunicado detention of an accused
person.293

All stages of the trial must take place ‘without undue delay’, including on appeal. 294 The
complexity of the alleged crime and the issues involved in investigating it may be
288
There are broadly equivalent provisions in the Human Rights Act 2004 (ACT) (s 22), Canadian Charter (art
11), New Zealand Bill of Rights Act 1990 (ss 24-5), South African Constitution (s 35) and European Convention
on Human Rights (art 6).
289
HRC, General Comment No 13: Equality before the Courts and the Right to a Fair and Public Hearing by an
Independent Court Established by Law (1984) [7] available at
http://www.ohchr.org/english/bodies/hrc/comments.htm. For further HRC jurisprudence on the right to a
presumption of innocence, see http://www.bayefsky.com/bytheme.php/id/1054.
290
Ibid [8]. For further HRC jurisprudence on the right to be protected against undue delay, see
http://www.bayefsky.com/bytheme.php/id/1071.
291
Ibid [9]. For further HRC jurisprudence on the right to the counsel and the time and facilities to prepare a
defence, see http://www.bayefsky.com/bytheme.php/id/1088. For a discussion of the comparative jurisprudence
on the right to a fair trial and legal representation, including from Europe, the United Kingdom, Ireland, the United
States, Canada, New Zealand and Australia, see Robert John Condon v The Queen [2006] NZSC 62 (23 August
2006) at http://www.nzlii.org/nz/cases/NZSC/2006/62.html#_Ref143503673. See also Modarca v Moldova,
Application No 14437/05 (10 May 2007) in which the European Court of Human Rights discusses case-law on the
right of access to a lawyer and the issue of confidentiality in communications between lawyer and client.
292
Harward v Norway, HRC, Communication No 451/1991, UN Doc CCPR/C/51/D/451/1991 (16 August 1994).
293
Kelly v Jamaica, HRC, Communication No 537/1993, UN Doc CCPR/C/57/D/537/1993 (29 July 1996);
Drescher Caldas v Uruguay, HRC, Communication No 43/1979, UN Doc CCPR/C/OP/2 (21 July 1983).
294
HRC, General Comment No 13, above n 289, [10]. For further HRC jurisprudence on the right to be protected
against undue delay, see http://www.bayefsky.com/bytheme.php/id/1071.
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Responsibilities
relevant.295 This would probably also apply to the Charter, albeit with the different
language of ‘without unreasonable delay’.

The right to examine and cross-examine witnesses.296 However, the right to examine
witnesses and to obtain their attendance will not be violated merely because counsel
failed to call material witnesses, even if counsel is provided by the state.297

The right to have the assistance of an interpreter is available to aliens as well as to
nationals.298

The right not to be required to incriminate oneself should be read in conjunction with
guarantees of freedom from torture and cruel, inhuman or degrading treatment or
punishment (ICCPR art 7, Charter s 10), and treatment with humanity and respect for
human dignity while deprived of liberty (ICCPR art 10(1), Charter s 22): ‘[t]he law should
require that evidence provided by means of such methods or any other form of
compulsion is wholly unacceptable’. 299 Moreover, it is possible that restrictions on the
right to silence may impermissibly infringe upon the right to freedom from compulsory
self-incrimination.300
3.21
Right Not to be Tried or Punished More Than Once
The right not to be tried or punished more than once for an offence with respect to which a
final determination has already been made in accordance with law is recognised in s 26 of the
Charter. This codifies the well-established principle that ‘double jeopardy’ is not permissible
and is modelled on art 14(7) of the ICCPR.301
The HRC has not substantially considered this right in its General Comments. The rule
against double jeopardy is widely recognised in both international and domestic Australian
295
Compare Wolf v Panama, HRC, Communication No 289/1988, UN Doc CPR/C/44/D/289/1988 (8 April 1992);
Hill and Hill v Spain, HRC, Communication No 526/1993, UN Doc CCPR/C/59/D/526/1993 (2 April 1997). See
also Joseph, Schultz and Castan, above n 75, 313.
296
See http://www.bayefsky.com/bytheme.php/id/1094.
297
Gordon v Jamaica, Communication No 237/1987, UN Doc CCPR/C/46/D/237/1987 (23 November 1992); Pratt
and Morgan v Jamaica, HRC, Communication Nos 210/1986, 225/198, UN GAOR, 40th sess, Supp 40, UN Doc
A/44/40 (1989) 222.
298
HRC, General Comment No 13, above n 289, [13]. For further HRC jurisprudence on the right to an
interpreter, see http://www.bayefsky.com/bytheme.php/id/1100.
299
Ibid [14]. For further HRC jurisprudence on the right to freedom from self-incrimination, see
http://www.bayefsky.com/bytheme.php/id/1077.
300
HRC, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Comments of
the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, UN Doc CCPR/C/79/Add.55
(1995).
301
There are broadly equivalent provisions in the Human Rights Act 2004 (ACT) (s 24), Canadian Charter (art
11(h)), New Zealand Bill of Rights Act 1990 (s 26(2)) and South African Constitution (s 35(3)(m)). For HRC
jurisprudence on the right not to be tried or punished more than once, see
http://www.bayefsky.com/bytheme.php/id/1060.
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
and Victorian law.302 The HRC has held that the rule does not apply in respect of trials or
punishments which take place in different states, meaning, for example, that if a person had
already been tried for an offence in a foreign nation, and was then retried for the same offence
in Victoria, the retrial would not violate art 14(7) of the ICCPR.303
3.22
Retrospective Criminal Laws
The right not to be convicted of offences which were not offences at the time that the relevant
acts were done is recognised in s 27 of the Charter. Section 27 also provides for the situation
where an offence was committed, as recognised at the time, and there are subsequent
changes in the penalty for that offence — if this occurs, only the lower of the possible
penalties may be imposed on the person. It further specifies that trial and punishment of
persons in relation to international crimes are not affected by s 27. The section is modelled
on art 15 of the ICCPR.304
The HRC has not considered this right in its General Comments. The rule against
retrospectively effective criminal laws is widely recognised. Such laws breach two
fundamental principles of criminal law — nullum crimen sine lege (no crime except in
accordance with the law) and nulla poena sine lege (no punishment except in accordance with
the law). Perhaps as a result, ‘[t]here has been little jurisprudence on article 15(1)’. 305
4.
Scrutiny of Legislation
4.1
Introduction
One of the key operational mechanisms that the Charter establishes is a process for the
scrutiny of Bills passing through the Victorian Parliament, set out in Division 1 of Part 3 of the
Charter. It employs two scrutiny mechanisms for new Bills:

statements of compatibility, which must be prepared and presented by the introducing
member; and
302
In relation to Victoria, see Crimes Act 1958 (Vic) s 394.
303
AP v Italy, HRC, Communication No 204/1986, UN Doc CCPR/C/OP/2 (2 November 1987); ARJ v Australia,
HRC, Communication No 692/1996 CCPR/C/60/D/692/1996 (28 July 1997). Note, however, that the pleas of
autrefois acquit and autrefois convict may be raised in respect of previous acquittals or convictions by a
competent foreign tribunal: R v Roche (1775) 1 Leach 134; 168 ER 169; R v Aughet (1918) 13 Cr App R 101.
304
There are broadly equivalent provisions in the Human Rights Act 2004 (ACT) (s 25), Canadian Charter (art
11(g)), New Zealand Bill of Rights Act 1990 (s 26(1)), South African Constitution (s 35(3)(l)) and European
Convention on Human Rights (art 7).
305
Joseph, Schultz and Castan, above n 75, 340, citing Manfred Nowak, UN Covenant on Civil and Political
Rights: CCPR Commentary (1993) 275. However, for the HRC jurisprudence available, see
http://www.bayefsky.com/bytheme.php/id/1065. See also Teofila Casafranca de Gomez v Peru, HRC,
Communication No 981/2001, UN Doc. CCPR/C/78/D/981/2001 (2003) at
http://www1.umn.edu/humanrts/undocs/981-2001.html.
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
the review of all Bills introduced into Parliament by the Scrutiny of Acts and Regulations
Committee.
4.2
Statements of Compatibility
The more expansive of the two mechanisms is the requirement for statements of compatibility.
A member introducing a new Bill into the House ‘must cause a statement of compatibility to be
prepared in respect of that Bill’.306 The statement must specify:

whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how
it is compatible;307 and

if, in the member’s opinion, any part of the Bill is incompatible with human rights, the
nature and extent of the incompatibility.308
Subsequently, the member introducing the Bill, or another member acting on his or her behalf,
must bring the statement of compatibility before the House before giving his or her second
reading speech on the Bill.309
A failure to comply with the statement of compatibility requirement will have no effect on the
validity, operation or enforcement of that Act, or of any other statutory provision.310 The
Explanatory Memorandum states that this ‘confirms Parliament’s intention that [s] 28 is not to
be regarded as a constitutional “manner and form” provision for the passing of legislation’.311
The Charter explicitly states that a statement of compatibility made under s 28 ‘is not binding
on any court or tribunal’.312 The Explanatory Memorandum notes that this provision
makes it clear that the Supreme Court has an independent role in determining
questions of law involving the application of the Charter and questions with respect to
the interpretation of statutory provisions, including provisions for which a statement of
compatibility has been made, in accordance with the Charter.313
The statement of compatibility has two main purposes:

to ensure that Ministers or other Parliamentarians introducing Bills ‘take responsibility for
the human rights impact of their legislation’;314 and

to provide information to the Parliament to help inform its deliberations on legislation. 315
306
Charter s 28(1).
307
Charter s 28(3)(a).
308
Charter s 28(3)(b).
309
Charter s 28(2).
310
Charter s 29.
311
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 21.
312
Charter s 28(4).
313
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 21.
314
Simon Evans, The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four Key
Differences and their Implications for Victoria (Paper presented at the Australian Bills of Rights: The ACT and
Beyond Conference, Australian National University, 21 June 2006) 4.
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In terms of content, the Human Rights Consultation Committee recommended that statements
of compatibility ‘should address the same matters as would be required in respect of a Human
Rights Impact Statement’.316 This includes:

a statement of the purpose of the Bill;

a statement of its effect upon any of the human rights in the Charter; and

a statement of any limitation placed upon any human right in the Charter by the Bill,
including:
o
the nature of the human right limited;
o
the importance of the purpose of the limitation;
o
the nature and extent of the limitation;
o
the relationship between the limitation and its purpose; and
o
any less restrictive means reasonably available to achieve the purpose that the
limitation seeks to achieve.
As Evans suggests, this format would ‘follow the analysis required by s 7 [of the Charter] in
determining whether a limit on a human right is reasonable and demonstrably justified in a
free and democratic society based on human dignity, equality and freedom.’317
There is no guarantee, however, that this level of detail and analysis will automatically
eventuate. The equivalent provision of the Human Rights Act 2004 (ACT) requires the
Attorney-General to prepare a written compatibility statement, again outlining whether or not
the Bill is consistent with human rights. However, in comparison with the Charter, which
requires an explanation of how proposed legislation is consistent or inconsistent with the
Charter, the ACT Act only requires an explanation if the Bill is inconsistent. This has resulted
in many brief and unreasoned statements that the proposed legislation is compatible, with no
accompanying analysis.318 The broader requirement in the Charter that statements of
compatibility explain ‘whether … the Bill is compatible … and if so, how’319 should overcome
this deficiency.
4.3
Scrutiny of Acts and Regulations Committee
The second scrutiny mechanism introduced by the Charter is the requirement that 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’.320
315
Ibid.
316
Human Rights Consultation Committee, above n 182, 73.
317
Evans, above n 314, 6.
318
Ibid 7.
319
Charter s 28(3)(a) (emphasis added).
320
Charter s 30.
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Depending on the approach taken and process adopted by the Committee, this may be a
useful forum within which civil society, particularly human rights organisations and
representatives of affected individuals and communities, may contribute to the scrutiny of bills
and regulations.
5.
Override Declarations
5.1
Power to Issue Override Declaration
The Charter sets out a regime by which Parliament can issue an ‘override declaration’, which
means that the Charter will not apply to the interpretation or application of that legislation.
However, it is intended that such a declaration will only be made in ‘exceptional
circumstances’.321
The Explanatory Memorandum to the Charter states that this section is intended to be invoked
only ‘when Parliament is introducing new legislation and exceptional circumstances exist
which require Parliament to depart from the Charter in a specific manner and for a fixed period
of time’.322 Threats to national security, or a state of emergency which threatens the safety,
security and welfare of the people of Victoria 323 are examples of the kind of exceptional
circumstances which may justify a s 31 override declaration.
5.2
Effect of Override Declaration
An override declaration is an express declaration by Parliament in an Act to the effect 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 [the] Charter’.324 Under s 31(2), such a declaration similarly ‘must be taken to extend to
any subordinate instrument made under or for the purpose of [the] Act or provision’.
The effect of an override declaration is that, ‘to the extent of the declaration [the] Charter has
no application to that provision’.325 The note that accompanies the section indicates that the
importance of this will be that:

the Supreme Court cannot make a declaration of inconsistent interpretation (discussed at
Part 6.4 below) in respect of that statutory provision; and

the s 32(1) requirement that the provision must be interpreted in a way that is compatible
with human rights (discussed at Part 6.1 below) does not apply.
321
Charter s 31(4).
322
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 21.
323
Ibid.
324
Charter s 31(1).
325
Charter s 31(6).
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It is regrettable that the Charter makes provision for the issuance of override declarations,
particularly given that, where exceptional circumstances exist justifying limitations on or
derogations from human rights, s 7 of the Charter already permits such action. One creative
and constructive way in which the provision could be used, however, is in the context of
statutory interpretation under s 32(1). It is at least arguable that, absent an override
declaration, there should be a strong presumption that the legislation in question be
interpreted consistently with human rights (as against being the subject of a declaration of
inconsistent interpretation) because if the parliament intended otherwise it would have issued
an override declaration. This argument (and the absence of an override declaration) may
support a more robust approach to promoting human rights compatible statutory interpretation
than would have otherwise been the case.
5.3
Procedural Elements
The process by which an override declaration is brought about is set out in s 31. The Member
of Parliament introducing a Bill containing an override declaration (or someone 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.326
Such statements must be made during the second reading speech of the Bill, 327 at a point
before the third reading but no less than 24 hours after notice that such a statement is to be
made,328 or, with leave of the Legislative Council or Assembly, at any time before the third
reading of the Bill.329 However, a failure to comply with either of ss 31(3) or (5) in relation to
any Bill that becomes an Act ‘does not affect the validity, operation or enforcement of that Act
of any other statutory provision’.330
Once enacted, a provision containing an override declaration expires on the fifth anniversary
of the day on which it came into operation, or on the (earlier) date specified in the Act.331
However, Parliament may at any time re-enact an override declaration.332
6.
Statutory Interpretation
6.1
Requirement that Legislation be Interpreted and Applied Compatibly with Human Rights
Section 32(1) Charter provides that:
326
Charter s 31(3).
327
Charter s 31(5)(a).
328
Charter s 31(5)(b).
329
Charter s 31(5)(c).
330
Charter s 31(9).
331
Charter s 31(7).
332
Charter s 31(8).
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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.
The purpose and effect of this provision is to require that any person or entity that interprets
and applies legislation, including particularly courts and tribunals, does so in a way that gives
effect to human rights.
Section 32(1) requires, as a matter of law, that a human rights consistent interpretation be
adopted whenever it is possible to do so, regardless of whether there is any ambiguity and
regardless of how the provision in question may have been previously interpreted and
applied.333
The provision therefore goes much further than the common law requirement (discussed at
Part 5 in Chapter 4) that, where a statute is ambiguous, the courts should favour a
construction which accords with Australia's human rights obligations.334
The Explanatory Memorandum indicates that the reference to statutory ‘purpose’ in s 32(1) is
to ensure that ‘courts do not strain the interpretation of legislation so as to displace
Parliament’s intended purpose or interpret legislation in a manner which avoids achieving the
object of the legislation’.335 This is consistent with jurisprudence from New Zealand and the
UK regarding similar interpretative provisions, with courts holding that the ‘amendment’ of
legislation is reserved to parliament and that any use of an interpretative provision to ‘produce
a result departing from the fundamental features of a statute is not acceptable.’336 However,
subject to not unduly ‘straining’ the meaning and purpose of legislation, s 32 may involve the
‘reading down’ of express provisions 337 and also the implication (or ‘reading in’) of
provisions338 to ensure human rights compatibility.
333
Charter s 49(1). See, eg, R v Offen [2001] 2 All ER 154 which held that, in light of the interpretative
requirement under the Human Rights Act 1998 (UK), a decision made a year earlier in relation to the
interpretation and application of a provision of the Criminal (Sentences) Act 1977 was no longer good law. See
also Re S (Care Order: Implementation of Care Plan) [2002] AC 291, 313.
334
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 287 (Mason CJ and Deane J). See
also Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1, 38.
335
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 22.
336
See, eg, Ghaidan v Godin-Mendoza [2004] AC 557, 572 and Re S (Minors) (Care Order: Implementation of
Case Plan) [2002] AC 291. See also R(Anderson) v Secretary of State for the Home Department [2003] 1 AC
837, in which the UK House of Lords refused to give a s 3 interpretation, which would override an express power
on the Home Secretary, to release a prisoner; Lord Bingham said that to do so would not be ‘judicial interpretation
but judicial vandalism’.
337
See, eg, Ghaidan v Godin-Mendoza [2004] AC 557, 585; R v A [2001] 3 All ER 1; R v A (No 2) [2002] 1 AC 45;
R v Lambert [2001] 3 WLR 206 and R v Carass [2002] 1 WLR 1714 in the UK context. See, eg, Flickinger v
Crown Colony of Hong Kong [1991] 1 NZLR 439, 440-1 (Cooke P) in the New Zealand context.
338
See, eg, Ghaidan v Godin-Mendoza [2004] AC 557, 585; R v A [2001] 3 All ER 1; R v A (No 2) [2002] 1 AC 45.
For example, in R v Offen [2001] 2 All ER 154, the UK Court of Appeal interpreted s 2 of the Criminal (Sentences)
Act 1977 to take a broad view of the meaning of ‘exceptional circumstances’ in making the power to impose a life
sentence following a conviction for a second serious offence compatible with the prohibition from inhuman and
degrading treatment.
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In the leading House of Lords case on the equivalent provision of the Human Rights Act 1998
(being s 3(1) which requires that, so far as it is possible to do so, legislation be interpreted and
applied compatibly with human rights), Lord Nicholls of Birkenhead stated that:
the interpretive obligation decreed by section 3 is of an unusual and far reaching
character. Section 3 may require a court to depart from the unambiguous meaning
the legislation would otherwise bear.339
Lord Nicholls further stated at paragraph 32 that:
Section 3 enables language to be interpreted restrictively or expansively. But section
3 goes further than this. It is also apt to require a court to read in words which
change the meaning of the enacted legislation, so as to make it Conventioncompliant. In other words, the intention of Parliament in enacting section 3 was that,
to an extent bounded only by what is 'possible', a court can modify the meaning, and
hence the effect, of primary and secondary legislation.
At paragraph 44, Lord Steyn similarly said:
It is necessary to state what section 3(1), and in particular the word 'possible', does
not mean. First, section 3(1) applies even if there is no ambiguity in the language in
the sense of it being capable of bearing two possible meanings. The word 'possible'
in section 3(1) is used in a different and much stronger sense. Secondly, section 3(1)
imposes a stronger and more radical obligation than to adopt a purposive
interpretation in the light of the European Convention on Human Rights ... Parliament
specifically rejected the legislative model of requiring a reasonable interpretation.
And at paragraphs 119 and 121, Lord Rodger of Earlsferry confirmed:
where the court finds it possible to read a provision in a way which is compatible with
Convention rights, such a reading may involve a considerable departure from the
actual words…it is possible for the courts to supply by implication words that are
appropriate to ensure that legislation is read in a way which is compatible with
Convention rights. When the court spells out the words that are to be implied, it may
look as if it is 'amending' the legislation, but that is not the case. If the court implies
words that are consistent with the scheme of the legislation but necessary to make it
compatible with Convention rights, it is simply performing the duty which Parliament
has imposed on it and others. It is reading the legislation in a way that draws out the
full implications of its terms and of the Convention rights. And, by its very nature, an
implication will go with the grain of the legislation.
This decision has been followed in the ACT in respect of the equivalent s 30(1) of the Human
Rights Act 2004 (ACT).340
339
Ghaidan v Godin-Mendoza [2004] AC 557, 571.
340
See, eg, Kingsleys Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre
Investments Pty Limited [2006] ACTCA 9 (2 June 2006); Capital Property Projects (ACT) Pty Ltd v Planning and
Land Authority [2006] ACTSC 122 (15 December 2006).
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If this approach is followed in Victoria, it is likely that s 32(1) of the Charter will be, in effect,
the primary ‘remedy’ under the Act, with a Declaration of Inconsistent Interpretation
(discussed at Part 6.4 below) being a ‘remedy’ of last resort.
The approaches of both the New Zealand and United Kingdom courts to the interpretative
provisions in the New Zealand Bill of Rights Act 1990 (NZ) and the Human Rights Act 1998
(UK), respectively, may be useful to Victorian courts.
The New Zealand approach to interpreting and applying legislation consistently with human
rights involves:
1. starting with a ‘human rights orientation’ (that is, considering at the outset the principles
and standards with which legislation must comply to be ‘human rights compatible’); and
2. then determining whether the legislation can be reasonably and properly interpreted to
conform with these principles and standards. 341
This approach enables the courts to approach the interpretative exercise without
preconceptions derived from the literal wording of the legislation and encourages a focus on
the goal of human rights consistent interpretation without unduly straining the legislation or ‘rewriting’ the law.342
The New Zealand approach can be slightly contrasted with the interpretative approach
adopted by UK courts under s 3(1) of the Human Rights Act 1998 (UK), where the process
involves:
1. ascertaining whether, on its face, the legislation in question is inconsistent with human
rights (thus giving rise to a ‘provisional incompatibility’);343 and
2. then, if an incompatibility arises, modifying the meaning of the legislation by reference to
s 3(1) only to the extent necessary to achieve compatibility. 344
Section 3(1) of the Human Rights Act 1998 (UK), has been deployed in a range of cases,
including:

expanding the range of circumstances considered to be ‘exceptional’ for sentencing
purposes;345

interpreting ‘husband and wife’ to include same-sex couples in the context of tenancy
legislation;346
Petra Butler, ‘Australian Bills of Rights: The ACT and Beyond — Lessons from New Zealand’ (Paper presented
at the Australian Bills of Rights: The ACT and Beyond Conference, Australian National University, 21 June 2006)
11–12.
341
342
For examples of this approach, see Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260, 272,
286; Quilter v Attorney General [1998] 1 NZLR 523, 524, 581; Moonen v Film and Literature Board of Review
[2000] 2 NZLR 9, [16]–[17]; Simpson v Attorney General [1994] 3 NZLR 667, 674.
343
See, eg, R v A (No 2) [2002] 1 AC 45 at 1582, 1583 para 110 (Lord Hope); R v Lambert [2002] AC 545 at 234
para 80.
344
Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48, [75].
345
R v Offen [2001] 1 WLR 253.
346
Ghaiden v Godin-Mendoza [2004] 2 AC 557, 585.
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
replacing a legal burden of proof with an evidential burden of proof;347

displacing the ‘natural meaning’ of provisions of the Official Secrets Act 1989 (UK) which
applied a reverse burden of proof which the court held to be disproportionate and
unjustifiable;348

reading down a presumption against bail in respect of certain offences such that the
burden remains on the prosecution to demonstrate that bail should not be granted; 349 and

interpreting a provision which stated that applications for reconsideration of minimum
terms of sentence were to be determined ‘without an oral hearing’ to be subject to an
implied provision that, where it was necessary to comply with the right to a fair hearing, an
oral hearing must be held.350
6.2
Use of International and Comparative Human Rights Law and Jurisprudence
Section 32(2) provides that ‘[i]nternational 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’.
The Explanatory Memorandum suggests that s 32(2) ‘will operate as a guide’, and goes on to
state that
a court or tribunal may examine international conventions, international customs as
evidence of a general practice accepted as law, the general principles of law
recognised by civilised nations, and (as subsidiary means) judicial decisions and
teachings of the most highly qualified publicists of various nations. 351
It also suggests that decisions of the International Court of Justice, the European Court of
Human Rights, the Inter-American Court of Human Rights and United Nations treaty
347
R v Lambert [2002] QB 1112; R v Carass [2002] 1 WLR 1714. In Lambert the House of Lords considered
whether it would be compatible with art 6(2) to interpret provisions of the Misuse of Drugs Act 1971 as imposing
on a defendant the burden of proving that he was unaware that the contents of a bag in his possession were
prohibited drugs. They decided that it would not.
348
Keogh v R [2007] EWCA Crim 528. In this case the Court held that the Act could operate effectively without
the reverse burdens that s 2(3) and s 3(4) imposed according to their natural meaning and that the provisions
should therefore be read down. The relevant sections provided that ‘It is a defence for a person charged with an
offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable
cause to believe, that the information, document or article in question related to defence or that its disclosure
would be damaging’. The Court of Appeal held that the provision should be interpreted and applied such that, ‘if
the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall
assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not’. See
also R v Director of Public Prosecutions (ex parte Kebiline) [2000] 2 AC 326.
349
R (O) v Harrow Crown Court [2006] 3 WLR 195 (House of Lords).
350
R (Hammond) v Secretary of State for the Home Department [2006] 1 AC 603 (House of Lords).
351
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 23. This approach is
modelled on art 38(1) of the Statute of the International Court of Justice, which sets out the sources of
international law that may be applied by the International Court of Justice.
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monitoring bodies will be particularly relevant.352 Judgments of domestic and foreign courts
with similar legislative human rights instruments, particularly the Australian Capital Territory,
Canada, New Zealand, South Africa and the United Kingdom, may also be relevant.353
The jurisprudence of the HRC is likely to be particularly persuasive. As discussed at Part 2.3
above, the HRC is responsible for monitoring and reporting on State party implementation of
the ICCPR and hearing and determining individual communications against States party to the
First Optional Protocol to the ICCPR. It has been recognised by domestic courts as a ‘‘judicial
body of high standing’.354 Given that the substantive rights contained in the Charter are
largely drawn from the ICCPR, the HRC’s jurisprudence should be considered especially
influential and authoritative.355
For specific information regarding research and analysis of jurisprudence from each of the
jurisdictions discussed above, see Part 2 of this Chapter.
For further information regarding online sources of international and comparative human
rights law and jurisprudence, see Part 7 of Chapter 2.
6.3
Effect of Incompatibility
Pursuant to s 32(3)(a), the validity of an Act or provision of an Act is not affected in
circumstances where it is not possible to interpret and apply that Act or provision compatibly
with human rights. In a UK context, it has been suggested that the analogous provision (s
3(2) of the Human Rights Act 1998 (UK)), in effect, delimits the extent to which courts may
‘modify’ or ‘reinterpret’ legislation to ensure human rights compatibility — if the interpretative
exercise so strains legislation as to affect its ‘validity’ or intended operation, then the courts
should deploy a statement of incompatibility (or, in the case of the Charter, a declaration of
inconsistent interpretation) rather than seek to interpret the legislation consistently with human
rights.356
The situation in relation to subordinate legislation is different. Section 32(3)(b) of the Charter
provides that the validity of a subordinate instrument or provision of a subordinate instrument
that is incompatible with a human right is not affected by such incompatibility, provided that
the incompatibility is ‘empowered’ (or authorised) by the Act under which the subordinate
352
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 23.
353
Ibid 23–4.
354
Tavita v Minister of Immigration [1994] 2 NZLR 257.
355
In a UK context, the House of Lords has analogously held that the jurisprudence of the European Court of
Human Rights should be particularly persuasive in the interpretation and application of the Human Rights Act
1998; the substantive rights therein being drawn from the European Convention on Human Rights:
It is the clear duty of our domestic courts, save where and so far as constrained by primary domestic
legislation, to give practical recognition to the principles laid down by the Strasbourg court as governing
the Convention rights specified in the 1988 Act. That court is the highest judicial authority on the
interpretation of those rights, and the effectiveness of the Convention as an international instrument
depends on the loyal acceptance by member states of the principles it lays down: Kay v Lambeth LBC
[2006] UKHL 10, [28] (per Lord Bingham).
356
See, eg, Re S (Minors); Re W (Minors) [2002] 2 AC 291. See also Conor Gearty, above n 4, 52–4.
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instrument is made. Thus, where subordinate legislation is not capable of being interpreted
and applied compatibly with human rights and that incompatibility is not authorised by the
primary legislation (which should itself be interpreted, so far as possible, to be consistent with
human rights), then the subordinate legislation may be arguably invalid.
6.4
Declarations of Inconsistent Interpretation
Where a court is unable, pursuant to s 32, to interpret and apply legislation consistently with
human rights, the Supreme Court is empowered, pursuant to s 36, to issue a Declaration of
Inconsistent Interpretation. This is a remedy of last resort to be deployed only in
circumstances where a human rights compatible interpretation of legislation is not possible.
Section 36 may apply in three instances:
1. Supreme Court proceedings in which a question of law arises about the application of the
Charter or a question arises about the interpretation of statutory provisions in accordance
with the Charter;357
2. Supreme Court proceedings after a referral is made under s 33; 358 and
3. an appeal before the Court of Appeal in which a question of law arises about the
application of the Charter or a question arises about the interpretation of statutory
provisions in accordance with the Charter.359
Where one of these categories applies, s 36 provides that, in the absence of an override
declaration (see the discussion of s 31, above), the Court can make a declaration that a
statutory provision cannot be interpreted consistently with a human right.360 As discussed
above, a Declaration of Inconsistent Interpretation will only be issued where it is not possible,
pursuant to s 32, to interpret legislation to be human rights compliant.
There are two further conditions on this power of declaration:
1. If the Court is considering making a declaration under s 36, it must first give notice to the
Attorney-General and the Victorian Equal Opportunity and Human Rights Commission. 361
2. The Court must not make a declaration of inconsistent interpretation unless it is satisfied
that notice has been given under s 36(3),362 and that a reasonable opportunity has been
given to the Attorney-General and the Commission to intervene or make submissions in
respect of the proposed declaration.363
357
Charter s 36(1)(a).
358
Charter s 36(1)(b).
359
Charter s 36(1)(c).
360
Charter s 36(2).
361
Charter s 36(3).
362
Charter s 36(4)(a).
363
Charter s 36(4)(b).
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A Declaration of Inconsistent interpretation does not, of itself, affect the validity, operation or
enforcement of the relevant statutory provision; 364 or create in any person any legal right or
give rise to any civil cause of action. 365 This, as the Explanatory Memorandum notes,366
‘confirms Parliament’s clear and unequivocal intention that the Charter is not intended to
create any independent cause of action or provide remedies for breach of the Charter’s
provisions’.
Where a Declaration of Inconsistent Interpretation is issued, the Supreme Court must provide
a copy of the declaration to the Attorney-General, either seven days after the expiry of the
appropriate appeal period (if an appeal against the declaration was not made), 367 or, if on
appeal the declaration is upheld, within seven days of the appeal being finalised. 368 The
Attorney-General is then obliged to give a copy of any such declaration received to the
Minister administering the relevant statutory provision. 369
The Minister has six months from receiving the declaration to:

prepare a written response to the declaration;370 and

bring a copy of the declaration and the response before each House of Parliament, and
publish both in the Government Gazette.371
These requirements are intended to ensure that appropriate action is taken in response to any
Declaration of Inconsistent Interpretation issued by the Supreme Court.372 It is notable that, in
the United Kingdom, as at July 2006, declarations of incompatibility had been made in 15
cases and that, on remit to parliament, all of the incompatibilities had been remedied or where
still under consideration with a view to remediation. 373
By implementing a model in which the courts are not empowered to strike down primary
legislation, the Charter follows the legislative approach adopted in the ACT, the UK and New
Zealand. This differs from the Canadian Charter model, where the Supreme Court is
permitted to invalidate legislation but Parliament may subsequently override the Court’s
finding and reinstate the law. As noted by the Human Rights Consultation Committee, these
differences are consistent with the legislative foundation of the former Acts, and the
constitutional foundation of the Canadian Charter.374
364
Charter s 36(5)(a).
365
Charter s 36(5)(b).
366
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 26.
367
Charter s 36(6)(a).
368
Charter s 36(6)(b).
369
Charter s 36(7).
370
Charter s 37(a).
371
Charter s 37(b).
372
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 27.
373
Department for Constitutional Affairs (UK), above n 227, 17.
374
Human Rights Consultation Committee, above n 182, 84.
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6.5
Referral Process
The Charter establishes a referral procedure which applies where a question of interpretation
under s 32(1) (or any other Charter section) arises in judicial proceedings.
Section 33(1) provides that ‘if … a question of law arises relating to the application of [the]
Charter or a question arises with respect to the interpretation of a statutory provision in
accordance with [the] Charter, that question may be referred to the Supreme Court’ for
consideration (where it is the Trial Division of the Supreme Court itself that makes a referral,
the referral is made to the Court of Appeal).375
Such a referral may occur only if a party has applied for a referral, and the question is
considered appropriate for the Supreme Court to determine.376 Where a question is referred
to the Supreme Court under s 33(1), the referring court or tribunal is not permitted to
determine an issue to which the referred question is relevant until the question is determined
or to act inconsistently with the Court’s determination once it is made.377 This referral power
is, despite the content of any other Act, the only section under which a question of this nature
may be referred to the Supreme Court.378
There is also a requirement under s 35(1)(b) that notice be given to the Attorney-General
(unless the state of Victoria is a party)379 and the Victorian Equal Opportunity and Human
Rights Commission (unless the Commission is a party)380 if any question is referred under
s 33.
6.6
Attorney-General’s Right of Intervention
The Charter also provides for a right on the part of the Attorney-General to intervene in
Charter-related proceedings.
Section 34(1) provides that 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 [the] Charter
or a question arises with respect to the interpretation of a statutory provision in
accordance with [the] Charter.
The decision to exercise this right to intervene is a matter for the Attorney-General’s
discretion.381
375
Charter s 33(3).
376
Charter s 33(1).
377
Charter s 32(2)(b).
378
Charter s 33(4).
379
Charter s 35(2)(a).
380
Charter s 35(2)(b).
381
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 25.
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After such an intervention, the Attorney-General is taken to be a party to the proceeding for
the purposes of the institution and prosecution of an appeal from an order made in that
proceeding.382
A party to any proceeding in the Supreme or County Courts must give notice to the AttorneyGeneral (unless the state is a party),383 as well as the Victorian Equal Opportunity and Human
Rights Commission (unless the Commission is a party),384 if a question of law arises in
respect of the application of the Charter, or a question arises regarding the interpretation of a
statutory provision in accordance with the Charter.385
7.
Public Authorities
7.1
Obligations of and on Public Authorities
Section 38(1) of the Charter outlines the obligations of a public authority, including that it is
unlawful for a public authority:
(a)
to act in a way that is incompatible with a human right; or
(b)
in making a decision, to fail to give proper consideration to a relevant human right.
It should be noted that s 3(1) of the Charter defines an ‘act’ to include not only a positive act,
but also a failure to act and a proposal to act.386
Section 38(1) is modelled on s 6 of the UK Human Rights Act 1998. It imposes a substantive
obligation on ‘public authorities’ to act compatibly with human rights and a procedural
obligation to properly consider relevant human rights in decision-making processes, with
failure to do so amounting to unlawfulness.
In relation to the substantive obligation, a failure to act compatibly with human rights is, prima
facie, unlawful and beyond power and may entitle an affected person to seek injunctive and
declaratory relief (discussed further below at Part 8.1). In the UK, this has also enabled the
courts to strike down as ultra vires any such acts.387
In relation to the procedural obligation, the term ‘proper consideration’ is likely to require that
public authorities give real and genuine consideration to human rights, where relevant, and is
also likely to import a notion of weight and proportionality, rather than merely requiring a ‘tick
382
Charter s 34(2).
383
Charter s 35(2)(a).
384
Charter s 35(2)(b).
385
Charter s 35(1)(a).
386
See also Vriend v Alberta [1998] 1 SCR at [54]-[64], in which the Supreme Court of Canada considered the
importance to human rights of not only reviewing government acts, but also reviewing governments’ failures to
act.
387
This is not a new remedy, as such, but a new set of circumstances in which existing judicial review remedies
can be used: Department for Constitutional Affairs (UK), above n 227, 18.
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the box’ exercise.388 In R (Daly) v Secretary of State for the Home Department, for example,
the House of Lords stated that:
the doctrine [of proper consideration] may require the reviewing court to assess the
balance which the decision maker has struck, not merely whether it is within the
range of rational or reasonable decisions…It may go further than the traditional
grounds of review inasmuch as it may require attention to be directed to the relative
weight accorded to interests and considerations. 389
The House of Lords further stated that where the decision made is, prima facie, incompatible
with human rights, questions relevant to whether proper consideration has been accorded
include:

is the objective sought by the decision maker sufficiently important to justify limiting a
fundamental human right?

are the measures resulting from the decision rationally connected with this objective?

is the limitation or the means used to impair the right or freedom no more that is
necessary to accomplish the objective?390
Thus, Lord Steyn stated:
The intensity of the review…is guaranteed by the twin requirements that the limitation
of the right was necessary in a democratic society, in the sense of meeting a pressing
social need, and the question whether the interference was really proportionate to the
legitimate aim being pursued.391
The intention is not to impose complex procedures on public authorities but to promote human
rights compliance. According to UK jurisprudence, ‘the question is not whether the decision
was the product of a defective decision-making process, but whether, in the specific case, the
applicant’s human rights have been violated’. 392
In relation to both the substantive and procedural obligations, it is likely that courts will give a
‘margin of appreciation’ or recognise a ‘discretionary area of judgment’ 393 within which the
judiciary will defer to the opinion of the legislature or executive in particular areas. Case law
from the UK suggests that courts may accord particular respect to policy decisions made by
388
See, eg, R (Daly) v Home Secretary [2001] 2 AC 532.
389
R (Daly) v Home Secretary [2001] 2 AC 532, [28] (Lord Steyn). See also R (Begum) v Denbeigh High School
[2006] 2 WLR 719, in which Lord Bingham stated, ‘there is no shift to a merits review, but the intensity of review is
greater than was previously appropriate, and greater even than the heightened scrutiny test’. See also Samaroo
v Secretary of State [2001] EWCA Civ 1139, [17].
390
R (Daly) v Home Secretary [2001] 2 AC 532, [27] (Lord Steyn). See also de Freitas v Permanent Secretary of
Minisrty of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69 (Lord Clyde); R (on the application of Clays
Lane Housing Co-operative) v Housing Corporation [2004] EWCA Civ 1658.
391
R (Daly) v Home Secretary [2001] 2 AC 532, [27] (Lord Steyn).
392
R (Begum) v Denbeigh High School [2006] 2 WLR 719.
393
See, eg, R v (Pro-Life Alliance) v British Broadcasting Authority [2004] 1 AC 185; R (Begum) v Denbeigh High
School [2006] 2 WLR 719.
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parliament or the executive in the areas of national security, 394 criminal justice395 and
economic policy.396
Section 38(2) places a limitation on the substantive and procedural obligations outlined above.
It states that the obligation does not apply if the public authority could not reasonably have
acted differently or made a different decision due to a statutory provision or otherwise under
law. It is important to note, however, that any such provisions would themselves be required
to be read in light of s 32(1).
Finally, s 38(3) reinforces the notion that the obligations on public authorities are limited to
their functions only insofar as they are ‘public’, stating that the section does not apply to acts
or decisions of a private nature.
7.2
Definition of a Public Authority
The Charter contains an extensive definition of ‘public authority’, which is broken into two
broad categories:

‘core’ public authorities, which are bound by the Charter generally; and

‘functional’ public authorities, which will only be bound by the Charter when they are
exercising functions of a public nature.
The second category is an important one in the context of modern government practice. Its
inclusion was recommended by the Human Rights Consultation Committee on the basis of
similar practice in New Zealand and the United Kingdom. It also reflects the reality that
modern governments use numerous organisational structures and arrangements to deliver
public services and ensures that the duty to respect the Charter is not avoided by the
‘outsourcing’ of government functions.
A requirement that private organisations act lawfully in respect of occupational health and
safety, equal opportunity and similar obligations has for some time been a feature of
government contracts and funding agreements.397 This provision is simply a natural
progression in this process.
(a)
Core Public Authorities
Entities which fall into the first category (core public authorities) include the following:

public officials within the meaning of the Public Administration Act 2004 (Vic);398
394
See, eg, Secretary of State for the Home Department v Rehman [2003] 1 AC 153; Al Rawi & Ors, R (on the
application of) v Secretary of State for Foreign & Commonwealth Affairs & Anor [2006] EWCA Civ 1279, [146][148].
395
See, eg, R (Marper) v Chief Constable of South Yorkshire [2004] 1 WLR 2196.
396
See, eg, R (Hooper) v Pensions Secretary [2005] 1 WLR 1681.
397
Human Rights Consultation Committee, above n 182, 56.
398
A public official under this Act includes public sector employees, certain judicial employees and parliamentary
officers, directors of public entities, and persons holding certain statutory or prerogative offices. It does not
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
an entity established by a statutory provision that has functions of a public nature (the
meaning of ‘functions of a public nature’ is discussed below);

the Victoria Police;399

the Office of Public Prosecutions;400

a Local Council within the meaning of the Local Government Act 1989 (Vic),401 together
with Councillors and members of Council staff under the meaning of that Act;

a Minister;

members of a Parliamentary Committee when the Committee is acting in an
administrative capacity; and

(b)
an entity declared under regulations to be a public authority for the purposes of the
Charter.
Functional Public Authorities
The second, broader category — that of ‘functional’ public authorities — is established by
s 4(1)(c), which provides that a public authority is:
any 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). [italics added]
Pursuant to s 4(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 (eg, the
Transport 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
(eg, 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 (eg, a professional association which has
statutory disciplinary, ethical or qualification powers is likely to be exercising public
functions);
(d)
that the entity is publicly funded to perform the function; and
include the Governor, judges, magistrates, coroners, members of the Victorian Civil and Administrative Tribunal
(‘VCAT’), Government Ministers, Parliamentary Secretaries, the President of the Legislative Council, the Speaker
of the Legislative Assembly and certain Ministerial officers.
399
See s 4(1)(d) and Guneser v Magistrates' Court of Victoria & Anor [2008] VSC 57 (5 March 2008), [61].
400
See ss 4(1)(a) and (b) and Guneser v Magistrates' Court of Victoria & Anor [2008] VSC 57 (5 March 2008),
[61].
401
Reference should be had to the Local Government Act 1989 (Vic) if further guidance is required in respect of
these terms.
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(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 (eg,
all the shares in the companies responsible for the retail supply of water within
Melbourne are held by or on behalf of the State).
Section 4(3) provides that, to avoid doubt, the factors listed in s 4(2) are not exhaustive of the
factors that may be taken into account in determining if a function is of a public nature.
According to the Explanatory Memorandum, ‘in a particular case, other factors may be
equally or more important in determining the nature of the function. Similarly, the fact that
one or more of the factors exist in relation to a function, does not necessarily mean that the
function is one of a public nature.’
Sections 4(4) and 4(5) further provide that:

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. According to the
Explanatory Memorandum, ‘a more loosely connected arrangement in which an entity is
acting as a representative of or for the purpose of the State or a public authority may be
covered’;402 and

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. According to
the Explanatory Memorandum, ‘while public funding may be relevant to deciding if the
entity is acting on behalf of the State, all of the circumstances, such as the degree of
government regulation and control and the nature of the functions being performed, are
relevant factors to consider’.403
The ‘functional’ approach is said to be similar to that adopted by the New Zealand and UK
legislatures, with the factors that may be taken into account in determining if a function is of a
public nature being ‘distilled from jurisprudence and commentary relating to like provisions in
the United Kingdom Human Rights Act 1998 and the New Zealand Bill of Rights Act 1990’.404
This approach is intended to avoid the hit-and-miss nature of a list of entities attached to the
Charter as a schedule,405 and to provide relative certainty as to who will be considered to be a
public authority, or in what circumstances (in the case of entities which combine public
functions with those of a private nature).406
The extent of private and community sector involvement in public services, together with the
diversity of organisational arrangements and structures to manage and deliver those services,
means that the determination of whether a body is a functional public authority will
significantly affect the impact and influence of the Charter. Recognising this, the UK House of
402
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 6.
403
Ibid.
404
Ibid 4.
405
This approach was considered by the Committee (see Human Rights Consultation Committee, above n 182,
55.
406
An example given by the Committee is that of a security firm which carries out security work for a Victorian
prison as well as for a supermarket. It would be a public authority for the purposes of the former function but not
the latter: Human Rights Consultation Committee, above n 182, 57.
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Lords has stated that there should be a ‘generously wide’ and flexible interpretation of ‘public
function’ so as to further the statutory object of promoting human rights.407 The House of
Lords has stressed that, in contrast to the category of core public authority, the category of
functional public authority ‘has a much wider reach and is sensitive to the facts of each
case’.408
(c)
Bodies that are not Public Authorities
The Charter specifically excludes several entities from the definition of ‘public authority’.
These are:

parliament or a person exercising functions in connection with proceedings in
Parliament;409

courts or tribunals except when acting in an administrative capacity; 410 and

an entity declared under regulations not to be a public authority for the purposes of the
Charter.411
Parliament is excluded in order to reflect its continuing sovereignty.
Courts and tribunals are excluded from the ambit of the Charter in recognition of the doctrine
that, in Australia, there is one unified common law throughout the nation, which should not be
subject to the influence of a particular state’s legislation.412 It is arguable that, if Victorian
courts were included as public authorities (and therefore had to expressly observe the
Charter’s provisions) the High Court may strike down the affected part of the Charter as being
unconstitutional. Nevertheless the Charter does bind courts and tribunals in carrying out their
administrative functions,413 and may be useful in informing the courts, along with other
influences, as they continue to develop the common law.
(d)
The Meaning of ‘Public Authority’ in the UK
In March 2007, the House of Lords and House of Commons Joint Committee on Human
Rights (‘Joint Committee’) published a report regarding the meaning of ‘public authority’ under
the Human Rights Act 1998 (UK).414 Pursuant to s 32(2) of the Charter, which provides that
407
Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [11].
408
Ibid [41].
409
Charter s 4(1)(i).
410
Charter s 4(1)(j). Examples of a court acting in an administrative capacity include committal hearings
(Guneser v Magistrates' Court of Victoria & Anor [2008] VSC 57 (5 March 2008), [61]) and listing proceedings (R v
Williams [2007] VSC 2 (15 January 2007) [50]).
411
Charter s 4(1)(k).
412
Esso Australia Resources Limited v The Commissioner of Taxation (1999) 183 CLR 10.
413
The Charter provides examples of these functions, which include: committal proceedings, issuing warrants,
listing cases and adopting practices and procedures. A more obvious example is the hiring of staff.
414
Joint Committee on Human Rights, Ninth Report: The Meaning of Public Authority under the Human Rights Act
(2007) available at http://www.publications.parliament.uk/pa/jt/jtrights.htm.
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international and comparative human rights jurisprudence may be relevant to the
interpretation and application of the Charter, this report may assist in the elucidation of the
meaning of ‘public authority’ under s 4 of the Charter.
Like s 38(1) of the Victorian Charter, s 6(1) of the UK Human Rights Act makes it unlawful for
a ‘public authority’ to act in a way which is incompatible with human rights. Section 6(3)(b) of
the Act defines a public authority to include ‘any person certain of whose functions are
functions of a public nature’. Unlike the Victorian Charter, however, which enumerates a
number of factors that may be taken into account to determine whether functions are of a
‘public nature’, the UK Act contains no further definition of ‘public authority’. The meaning of
‘public authority’ has therefore largely been developed through judicial interpretation.
Case law from the UK establishes that the following bodies may be functional public
authorities:

fully privatised public utilities, such as water companies; 415

a community housing association providing rental accommodation on behalf of a local
council;416

a provide provider of mental health care; 417 and

a private company running a farmers’ market that had initially established by a local
council.418
Ministerial statements by the Home Secretary and the Lord Chancellor have also suggested
that the following entities may be functional public authorities:

private operators of public transport (eg, Railtrack);

private operators of prisons (eg, Group 4);

doctors in the public health system; and

charities that operate in areas such as health care and homelessness.419
The UK courts have also held that where government or a public authority delegates its
functions to another entity, whether by contract or otherwise, the government or public
authority will retain its obligations as a public authority, regardless of whether the delegate is
also conferred with such obligations.420
415
Marcic v Thames Water [2002] EWCA Civ 65.
416
Poplar Housing and Regeneration Community Association v Donoghue [2001] EWCA Civ 595.
417
R (A) v Partnerships in Care Ltd [2002] WLR 2610.
418
R v Hampshire Farmers Market ex parte Beer [2003] EWCA Civ 1056.
419
Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act, 7th Report of
Session 2003-04 (2004) 9-10.
420
Callin, Heather and Ward v Leonard Cheshire Foundation [2002] EWCA Civ 366. See also cases such as X
and Y v Netherlands (1986) 8 EHRR 235, [23] which establish that a state cannot absolve itself of responsibility to
protect the rights of people within its jurisdiction simply because the breaches are carried out by a private body;
the state owes positive obligations to protect those rights.
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Notwithstanding this, the Joint Committee Report is highly critical of the restrictive approach
that the UK courts, particularly the Court of Appeal in Leonard Cheshire, have taken to the
meaning of ‘public authority’. This approach has prevailed notwithstanding, firstly, the House
of Lords view that there should be a ‘generously wide’ interpretation of ‘public authority’ and
‘functions of a ‘public nature’ so as to further the statutory aim of promoting human rights and
remedying human rights breaches 421 and, secondly, that in the course of parliamentary
debates on the Act, the Home Secretary and the Lord Chancellor, ‘made it clear that persons
or bodies delivering privatised or contracted-out public services were intended to be brought
within the scope of the Act by the “public function” provision’.
The Joint Committee states that:
In a series of cases our domestic courts have adopted a more restrictive
interpretation of the meaning of public authority, potentially depriving numerous, often
vulnerable people…from the human rights protection afforded by the Act. We
consider that this is a problem of great importance, which is seriously at odds with the
express intention that the Act would help to establish a widespread and deeply rooted
culture of human rights in the UK.
The Joint Committee continues, stating,
In an environment where many services previously delivered by public authorities are
being privatised or contracted out to private suppliers, the law is out of step with
reality. The implications of the narrow interpretation…are particularly acute for a
range of particularly vulnerable people in society, including elderly people in private
are homes, people in housing association accommodation, and children outside the
maintained education sector, or in receipt of children’s services provided by private or
voluntary sector bodies.
The Joint Committee considers that this problem has arisen largely due to a judicial approach
favouring an ‘institutional’ rather than ‘functional’ analysis of ‘functions of a public nature’,
stating,
Effectively, the protection of human rights is dependent not on the type of power
being exercised, nor on its capacity to interfere with human rights, but on the
relatively arbitrary criterion of the body’s administrative links with institutions of State.
This is contrasted by the Joint Committee with other human rights legislation, such as the
Equality Act (Sexual Orientation) Regulations 2006 which establishes that religious providers
of functions relating to ‘any form of social security, healthcare, any form of social protection or
any form of social advantage’ can not be exempted from the application of anti-discrimination
law on the ground of sexual orientation.
Calling for ‘urgent action’, the Joint Committee makes a range of recommendations to bring
about a solution, including that:

The Government enact an interpretative statute which provides that, for the purpose of s
6(3)(b) of the Act, a function of a public nature includes a function performed pursuant to a
421
Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37.
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contract or other arrangement with a public authority which is under a duty to perform the
function;

The Government and ‘pure’ public authorities include clear terms which incorporate
human rights obligations in contracts with private sector bodies to provide public services;

The Government continue to intervene in litigation to promote a wide and flexible
interpretation of ‘public authority’ and ‘public functions’ (with the Joint Committee noting
with approval that the Government is currently intervening in an appeal before the House
of Lords regarding the meaning of public authority); and

The Government promote the view, which is supported by strong evidence, that the
application of the Act to private sector bodies providing public services will not only benefit
service users but could also lead to positive benefits for service providers in relation to the
efficiency and effectiveness of their operating and decision making processes.
The Committee further concludes that, without such urgent action, many people, particularly
vulnerable people, are deprived of their right to an effective remedy for any violation of their
human rights and that the Act will continue to fall short of its aims of ‘bringing rights home’ to
the UK.
8.
Remedies
8.1
Legal Proceedings
Section 39 provides for the legal options that may be available with respect to a public
authority’s decisions or acts that are allegedly unlawful as a result of the Charter’s provisions.
In terms, it provides:
39
(1)
Legal proceedings
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)
(3)
to seek a declaration of unlawfulness and associated relief including an
injunction, a stay of proceedings or exclusion of evidence.
A person is not entitled to be awarded any damages because of a breach of this
Charter.
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(4)
Nothing in this section affects any right a person may have to damages apart
from the operation of this section.
While this is a complex provision, it seems that the following principles can be discerned.
(a)
Section 39(1) – Unlawful Acts of Public Authorities
Pursuant to s 39(1), the Charter does not create an independent cause of action. Thus, a
breach of a Charter right will not give rise to any cause of action in and of itself.
However, where a person has some other cause of action arising from an unlawful act or
decision of a public authority, then any unlawfulness arising from a breach of the Charter may
be a further ground in the cause of action. For example:

Under current law, evidence may be excluded if it was obtained unlawfully or as a result of
improper conduct, such as duress. Pursuant to s 39(1) of the Charter, the range of
circumstances in which evidence is considered to have been obtained unlawfully or
improperly may expand to include: where it is obtained by way of covert surveillance in
violation of the right to privacy; where it is obtained by way of an intrusive search in
violation of the right to home; and where it is obtained while a person is held in restrictive
or oppressive conditions in breach of the right to humane treatment in detention.
Further, an act that would not otherwise have been unlawful but for the Charter may become
unlawful in the context of the legislation authorising that act being required to be interpreted
and applied compatibly with human rights pursuant to s 32. For example:

Under current law, a person can seek to have an act or decision struck down if it is ultra
vires (that is, unlawful in that it is beyond the power of the public authority to undertake or
make). Section 39(1) of the Charter, read in conjunction with the obligation of public
authorities to act compatibly with human rights, is likely to enable the courts to strike down
as ultra vires any incompatible act. This is not a new remedy, as such, but a new set of
circumstances in which existing judicial review remedies can be used. 422
This is particularly the case in relation to action under delegated or subordinate legislation, the
validity of which may be impugned unless the incompatibility ‘is empowered’ by the Act under
which the subordinate instrument is made.
(b)
Section 39(2) – Judicial Review, Injunctive and Declaratory Relief
Pursuant to s 39(2), nothing in the Charter affects a person’s right, based on something other
than the Charter, to seek relief or remedy in respect of an act or decision of a public authority.
This explicitly includes a right to seek judicial review, a declaration of unlawfulness and other
relief such as an injunction, stay of proceedings or exclusion of evidence.
The effect of s 39(2) is that, while pursuant to s 39(1) a person cannot ‘sue’ for a breach of
human rights, a person can seek a declaration that a public authority has acted incompatibly
with human rights and an injunction to enjoin further contravening conduct.
422
Department for Constitutional Affairs (UK), above n 227, 18.
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Section 39(2) also appears to enable judicial review of a decision of a public authority on the
ground of failing to give proper consideration to relevant human rights. As discussed at Part
7.1 above, the term ‘proper consideration’ is likely to require that public authorities give real
and genuine consideration to human rights, where relevant, and is also likely to import a
notion of weight and proportionality. It is also arguable that, where a decision has been made
which is incompatible with human rights, judicial review could be sought on the grounds of
error of law or failing to take account of a relevant consideration.
In the senses referred to above, the Charter does confer a ‘free standing’ cause of action in
relation to human rights breaches and violations.
(c)
Sections 39(3) and (4) – Damages
Section 39(3) provides that a person does not have a right to be awarded damages for a
breach of the Charter.
However, under s 39(4), this does not affect any right a person may have to damages apart
from the operation of s 39.
It appears that the operation of these provisions precludes an award of damages for a breach
of the Charter in and of itself but may allow the award of damages for a breach of human
rights where the contravening conduct constitutes some other unlawful conduct (such as
tortious conduct or misfeasance in public office). For example:

A prisoner would not be able to sue a prison for breaching his or her right to humane
treatment in custody per se. However, if a prison breached a person’s human rights by,
for example, treating that person inhumanely in custody, it may be taken to have
committed a tort (such as assault) a breach of statutory duty (such as false imprisonment)
or misfeasance in public office. In such circumstances, it appears that the person would
be able, pursuant to s 39(4), to seek damages in respect of that tort or misfeasance.
Section 39(4) also appears to preserve the right to damages for breach of statutory duty. This
is important because the interpretative principle at s 32 of the Charter requires that statutory
duties be interpreted consistently with human rights. Thus exercise of a statutory power
incompatibly with human rights may give rise to a claim for breach of statutory duty sounding
in damages. For example:

In Baigent’s Case, the New Zealand Court of Appeal held that the overly intrusive
execution of a search warrant amounted to a breach of statutory duty. The Court held
that the statutory duty relating to execution of search warrants must be interpreted and
applied in the context of s 21 of the New Zealand Bill of Rights, which prohibits
unreasonable search and seizure.423
(d)
423
Other Matters
Simpson v Attorney General [1994] 3 NZLR 667, 674, 694, 714-16.
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The remedies provision is consistent with the recommendations made by the Committee. The
Committee noted that they received a substantial number of submissions advocating a right to
damages for breaches of the Charter. However, according to the Committee, experiences in
other jurisdictions (notably the UK, where people can seek ‘just and appropriate remedies’
which may include damages only if no other suitable remedy is available) demonstrated that
damages are rarely awarded, and are often of little concern to the victims of human rights
violations.
The Committee’s report also noted the support for the availability of a public apology and
other innovative responses as remedies. These suggestions were not incorporated in the
proposed Charter, however the appropriate causes of action and remedies for breaches of the
Charter are specified as issues which must be considered (and reported on) by the AttorneyGeneral upon review of the Charter after its first four years of operation.424
8.2
Ombudsman
In addition to the remedies outlined above, the Charter makes a consequential amendment to
the Ombudsman Act 1973 (Vic) to empower the Ombudsman to enquire into or investigate
whether any administrative action is incompatible with a human right set out in the Charter.
The Ombudsman does not have the power to change the authority’s decision, but may
recommend that the authority re-examine its decision. The Ombudsman can also recommend
that the authority take some other course of action, for example:
8.3

offer an apology;

change a policy or procedure;

compensate for financial loss; or

institute disciplinary or criminal proceedings.
Public Officials and Public Servants
The Charter also makes a number of consequential amendments to the Public Administration
Act 2004 (Vic) requiring, in effect, that public officials respect and promote human rights,
including by making decisions and providing advice consistent with human rights and actively
implementing, promoting and supporting human rights.
9.
Victorian Equal Opportunity and Human Rights Commission
9.1
Expansion of the Commission
Part 4 of the Charter provides for an expanded role and the renaming of the Equal
Opportunity Commission of Victoria. Along with the functions bestowed on it by (most
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notably) the Equal Opportunity Act 1995 (Vic) and the Racial Religious Tolerance Act 2001
(Vic) in its former guise, the Victorian Equal Opportunity and Human Rights Commission (‘the
Commission’) is also given a number of powers and functions specifically related to the
Charter. These functions are quite similar to those given to the ACT’s Human Rights
Commissioner.
9.2
The Commissions’ Functions
Section 41 of the Charter outlines the following functions of the Commission:
(a)
the presentation to the Attorney-General of an annual report that examines the
operation of the Charter (including the way it interacts with other laws), all
declarations of inconsistent interpretation and all override declarations made during
the year;
(b)
upon request of the Attorney-General, to review and report in writing to him or her on
the effect of statutory provisions and common law on human rights;
(c)
upon request by a public authority, to review that authority’s programs and practices
for compliance with their human rights obligations;
(d)
to provide community education about human rights and the Charter;
(e)
to assist the Attorney-General in conducting the four and eight year reviews of the
Charter;425
(f)
to advise the Attorney-General on any matters that are relevant to the operation of
the Charter; and
(g)
any other function conferred on the Commission under the Charter or any other Act.
Both the Committee’s report and the Explanatory Memorandum to the Charter note that the
intention is that audits of public authorities will be comprehensive but also, importantly,
undertaken in co-operation with the authority in question.
Section 40 of the Charter allows the Commission to intervene and be joined as a party to
proceedings before a court or tribunal if the proceedings involve a question of law relating to
the application of the Charter, or the interpretation of a statutory provision in accordance with
the Charter.
Section 42 grants the Commission the power to do all things necessary and convenient in
order to carry out the functions described above.
Section 43 provides that reports prepared for the Attorney-General by the Commission are to
be laid before both Houses of Parliament in a timely fashion. Section 43(2) allows the
Attorney-General to amend such a report in order to prevent disclosure of information which
discloses the identity of a person who contravened human rights of another or had their
424
Charter s 44(2)(d).
425
The four year review is referred to in the following section. Sections 44 and 45 of the Charter set out the
obligation to conduct these reviews and, in respect of the four year review, the issues which must be considered.
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Chapter 5 – The Victorian Charter of Human Rights and
Responsibilities
human rights contravened, or which would harm the public interest. Section 43(3) requires
the Attorney-General to present a statement to Parliament, disclosing the fact that an
amendment has been made, if a report is amended pursuant to s 43(2).
10.
Review of the Charter
Sections 44 and 45 require that the operation and content of the Charter be reviewed after
four years and then again after eight years of operation respectively.
Under s 44, the four year review is to be commissioned by the Attorney-General and tabled
before Parliament by 1 October 2011. The review is to consider, among other things, whether
the Charter should be amended to:
(a)
include additional human rights, including the right to self-determination and also
human rights contained in the International Covenant on Economic Social and
Cultural Rights,426 the Convention on the Rights of the Child,427 and the Convention
on the Elimination of all Forms of Discrimination against Women;428
(b)
require mandatory periodic auditing of public authorities to assess compliance with
human rights; and
(c)
include a provision to create an independent cause of action and entitlement to
remedies in relation to acts or decisions of public authorities that are incompatible
with human rights.
Under s 45, the Attorney General must commission and table a review of the Charter for the
period 2011 to 2015 by October 2015. The content of this review is not specified.
426
Opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976).
427
Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
428
Opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).
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