The Law Handbook 2024

1000 Section 11: Rights, activism and fair treatment at work a result of a statutory provision or otherwise under law, the public authority could not reasonably have acted any differently or made a different decision. If a public authority acts incompatibly with human rights, or does not consider human rights when making a decision, people can: • complain to the Victorian Ombudsman, who can investigate certain public authorities (see ‘Complaints about non-compliance’, below); • subject to the pre-condition in s 39(1), bring legal proceedings against the public authority (see ‘Courts, tribunals and the Charter’, below). Complaints about non-compliance Under the Ombudsman Act 1973 (Vic) (s 13), the Victorian Ombudsman has the power to make enquiries and conduct investigations of complaints against public authorities that relate to administrative actions by government agencies that have affected a person’s human rights. The Victorian Ombudsman does not generally handle complaints about police conduct in relation to human rights. Complaints about possible police misconduct can be made to the Independent Broad- based Anti-corruption Commission on 1300 735 135 or go to www.ibac.vic.gov.au. Statements of compatibility Amember of parliament seeking to introduce aBill into parliament must provide an accompanying statement of compatibility. This statement must outline whether, in the member’s opinion, the Bill is compatible with human rights and how it is compatible, and if any part of the Bill is not compatible with human rights, the nature and extent of the incompatibility (s 28). Statements of compatibility are not binding on any court or tribunal. A parliamentary committee, the Scrutiny of Acts and Regulations Committee ( SARC ), considers any Bill introduced into parliament and reports to parliament about whether the Bill is incompatible with human rights (s 30). Organisations and members of the public can make submissions about a particular Bill to SARC. SARC publishes its comments in an Alert Digest tabled in parliament each sitting week. Failure to comply with the requirements in section 28 of the Charter does not affect the validity, operation or enforcement of an Act (s 29). Therefore, the Charter preserves parliamentary sovereignty. Although statements of compatibility must accompany all Bills, the Victorian Parliament retains the discretion to pass laws that are not compatible with the Charter and parliament cannot be forced to adopt a particular position on a human rights issue. Rights-compatible interpretation of laws Courts and tribunals are required to interpret all statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistently with their purpose (s 32). International law and relevant judgments of domestic, foreign and international courts and tribunals may be considered in interpreting a statutory provision. Declarations of inconsistent interpretation The Supreme Court may make a declaration of inconsistent interpretation when the court considers that it is not possible to interpret a legislative provision consistently with a human right (s 36). The Supreme Court must provide a copy of a declaration of inconsistent interpretation to the Attorney-General. The VEOHRC and the Attorney-General must be notified when the Supreme Court is considering making a declaration and may make submissions in respect of the proposed declaration. The Attorney-General is required to give a copy of a declaration to the minister responsible for administering the statutory provision in respect of which the declaration was made. The minister must prepare a written response, to be laid before each House of Parliament and published in the Government Gazette (s 37). A declaration of inconsistent interpretation does not affect the validity, operation or enforcement of statutory provisions in respect of which declarations are made or give rise to any legal right or civil cause of action (s 36). As the time of writing, there has only been one declaration of inconsistent interpretation, in R v Momcilovic (2010) 25 VR 436 made by the Victorian Court of Appeal. However, on appeal, the High Court in Momcilovic v The Queen (2011) 245 CLR 1 held that either the declaration was invalid or was valid but should not have been made, and the majority (5:2) set aside the declaration. It is unclear how the Supreme Court will now approach section 36 following this decision.