Obligations of funded organisations under The Victorian
Charter Human Rights and Responsibilities Act 2006
General information sheet 3
This information sheet has been written to assist with understanding of when the Victorian
Charter of Human Rights and Responsibilities applies to funded organisations.
It covers:

Are organisations funded by DHS required to comply with the Victorian Charter of
Human Rights and Responsibilities (Charter)?

What organisations are public authorities for the purposes of the Charter?

Flowchart for determining whether an organisation is a public authority

Who decides whether an organisation if a public authority?

What if it is unclear if an organisation is/is not a public authority?

What are the Charter obligations of an organisation that is a ‘public authority’ for the
purposes of the Charter?

Are there any circumstances where an organisation that comes within the definition
of ‘public authority’ does not have to comply with the Charter?

Where to go for further help?
Are organisations funded by DHS required to comply with the
Victorian Charter of Human Rights and Responsibilities (Charter)?
The Charter imposes certain obligations on ‘public authorities’. The Charter defines which
people and organisations are public authorities. An organisation funded by DHS must
comply with the Charter if it comes with the definition. Some, but not all, organisations
funded by DHS are public authorities.
What organisations are public authorities for the purposes of the
Charter?
Section 4 of the Charter defines ‘public authority’. There are three kinds of organisations
that the Charter says are public authorities:
1.
2.
3.
Bodies listed in the Charter itself. These include:

public servants

local councils;

Victoria Police; and

organisations listed in regulations made under the Charter.
Organisations established under legislation that perform public functions. Examples
of these are:

public hospitals;

cemetery trusts;

Child Safety Commissioner; and

Infertility Treatment Authority.
Organisations that exercise public functions on behalf of the state or on behalf of
another public authority.
June 2009
Many organisations funded by DHS come within this third category. Organisations in this
category are only public authorities depending on their functions. An organisation will be a
‘public authority’ if it meets two criteria:
1. It is performing functions of a public nature; and
2. It is performing those functions on behalf of the State or another public authority.
Section 4 of the Charter provides guidance to assist you to decide whether an organisation
meets this test, as follows:
1. Is the organisation performing functions of a public nature?
Some factors that can be considered include:

Does legislation give the organisation that function? (For example, regulations
impose certain obligations on Breast Screen Victoria Inc in relation to keeping a
register.)

Is the function one that is usually identified with functions of government? (For
example, the provision of public hospital services.)

Is the organisation funded by DHS to perform that function? (Examples include
out of home care services for children, community-based child and family
services and disability services.)

Is the function one of a regulatory nature, such as regulating a profession?
These factors are not exhaustive or conclusive. Some of the factors may be present when
an organisation is performing a function that is not of a public nature.
2. Is the organisation performing the functions on behalf of the State, in this case DHS, or
another public authority?
In many cases it is clear when a function is being performed for the State or another
public authority. Examples include provision of public hospital services and out of home
care services for children. Often it will depend on the circumstances of each case.
However, the Charter specifies that:

the fact that an organisation is publicly funded to perform a function does not
necessarily mean that the organisation is performing the function on behalf
of the State

an organisation does not have to be an agent of the State to be acting on
behalf of the State.
When an organisation is performing functions that meet this test, it must comply with the
Charter in carrying out those functions. Organisations that perform a number of functions
may satisfy this test only when performing some of its functions. However, as a matter of
best practice, the organisation may choose to comply with the Charter in all activities that
affect human rights.
The following flow chart summarises the process of determining whether an organisation is
a public authority.
June 2009
Flowchart for determining whether an organisation is a public
authority
Is the organisation listed in
section 4 of the Charter or
the regulations? (This
currently includes local
councils and Victoria Police
YES
NO
Organisation is a ‘public authority’
Does the organisation
perform functions of a public
nature?
YES
NO
Is the organisation
established by
legislation?
YES
Organisation is NOT
a public authority
NO
Organisation is a ‘public authority’
Does the organisation
perform public functions
on behalf of DHS or
another public authority?
YES
Organisation is a public
authority when performing
these functions
NO
Organisation is NOT
a public authority
Who decides whether an organisation if a public authority?
Some organisations are clearly public authorities. These include public hospitals and
agencies providing out of home care to children. However, it is currently unclear whether
other organisations will fall within the definition of ‘public authority’. This may change
when there are some court decisions that give some guidance about the meaning of ‘public
authority’.
Until the courts consider the definition of ‘public authority’, each organisation must
determine whether that organisation is a public authority and therefore bound by the
Charter. Some organisations may choose to seek legal advice concerning this question.
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What if it is unclear whether an organisation is/is not a public
authority?
If organisations are unclear about their status as a public authority they may seek guidance
from DHS. The following general advice may be given:

For organisations providing services to vulnerable people (particularly services such
as residential services or respite), acting in accordance with the Charter is consistent
with best practice in the provision of services.

Where organisations undertake functions that potentially limit rights (for example,
restraint or seclusion in disability services), the organisation should act consistently
with the Charter to ensure that it is acting lawfully. There is always a possibility that
a court will later find that the organisation is a public authority. It is better for the
organisation to pro-actively comply than to find out later that it has acted unlawfully
by not acting compatibly with the Charter. Complying with the Charter from the
outset is good business practice.

The Victorian Equal Opportunity and Human Rights Commission has suggested
taking a broad approach to this issue rather than a narrow legalistic approach.
What are the Charter obligations of an organisation that is a ‘public
authority’ for the purposes of the Charter?
If an organisation is a public authority, then when the organisation acts or make any
decision that affects an individual, the organisation must consider the rights set out in the
Charter and act compatibly with those rights.
Are there any circumstances where an organisation that comes
within the definition of ‘public authority’ does not have to comply
with the Charter?
A public authority does not have to comply with the Charter if one of the following
circumstances applies:

A Victorian or Commonwealth law means that the organisation cannot comply;

The act or decision made by the organisation is one of a private nature; or

The public authority is also a religious body and compliance with the Charter would
prevent it from conforming with its religious doctrines, beliefs or principles.
Where do I go for further help?
More information on the Victorian Charter is available on the websites such as
http://www.legislation.vic.gov.au/.
http://www.humanrightscommission.vic.gov.au
June 2009