The Law Handbook 2024

Chapter 11.1: Discrimination and human rights 1001 Override declarations In exceptional circumstances, parliament may expressly declare that a law has effect despite being incompatible with a human right: this is called an ‘override declaration’ (s 31). Parliament must explain the exceptional circum­ stances justifying an override declaration. Examples of circumstances that could trigger override declarations include threats to national security, or a state of emergency threatening the safety and welfare of Victorians. Override declarations acknowledge that a Bill or Act contains provisions that limit human rights, but stipulate that it is the intention of parliament that this should be permitted. An override declaration signals to courts, public authorities and the community that a law does not have to be interpreted compatibly with the Charter and that public authorities do not need to act compatibly with human rights when implementing it. Override declarations may only operate for a maximum period of five years. This means that a decision to re-enact an override declaration is subject to review and to public scrutiny. There is, however, no limit on the number of times parliament can re-enact an override declaration. This default expiry may be removed by legislation. At the time of writing, there have been three override declarations. The first related to the Legal Profession Uniform Law Application Bill 2013, the second related to the Corrections Amendment (Parole) Bill 2014, and the third related to the Corrections Amendment (Parole) Bill 2018. Courts, tribunals and the Charter There is no ability to complain about an alleged breach of the Charter directly to the courts as an independent cause of action in its own right. However, if a person has a right to seek a relief or remedy on the basis that a public authority’s act or decision was unlawful (on some non-Charter ground), they may also seek that relief or remedy on a ground of unlawfulness arising because of the Charter (s 39). This means that courts and tribunals can consider human rights obligations where a person has existing legal proceedings against a public authority under a separate claim (e.g. judicial review of an administrative decision, or a claim of discrimination in VCAT ). The relief or remedy available for a breach of the Charter will depend on the relief or remedy available for the non-Charter ground. However, courts and tribunals cannot award compensation for a breach of the Charter. For example, if a person brings a discrimination claim against a public authority alleging a breach of the Equal Opportunity Act, they may also claim that the same conduct is an unreasonable limitation on their human rights under the Charter. If VCAT upheld these claims, it might award compensation for breach of the Equal Opportunity Act and/or make a declaration that there has been a breach of the Charter, because those are remedies available under section 125 of the Equal Opportunity Act and section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). See, for example, Slattery v Manningham City Council (Human Rights) [2014] VCAT 1442. Right to intervene: The VEOHRC and the Attorney-General The VEOHRC has a right to intervene in any proceeding before a court or tribunal in which a question arises in relation to the application of the Charter or its implications for the interpretation of another statutory provision (s 40). The Attorney- General has the same right of intervention (s 34). Any person raising a human rights issue under the Charter in a County Court or Supreme Court proceeding must notify the VEOHRC and the Attorney-General of the question of law being raised (s 35). The VEOHRC and the Attorney-General have each published intervention guidelines that provide guidance on how they consider and process Charter notifications (available on the VEOHRC’s website at www.humanrights.vic.gov.au) . The VEOHRC’s legal submissions under the Charter can be viewed on the VEOHRC’s website. The VEOHRC’s annual report on the Charter’s operation The VEOHRC has a function under section 41(a) of the Charter to present the Attorney-General with an annual report. This annual report examines: • the operation of the Charter including its interaction with other statutory provisions and the common law; • all declarations of inconsistent interpretation made during the relevant year; and