The Law Handbook 2024

Chapter 11.1: Discrimination and human rights 999 The Human Rights Charter provides a framework for the protection and promotion of human rights in Victoria. It places legal obligations on parliament, courts and tribunals, and public authorities including government departments, local councils and certain bodies that execute a public function (s 4). The Charter creates a ‘dialogue model’ of rights (i.e. a constructive and continuous conversation about human rights) for public authorities, parliament, courts and the Victorian community. The dialogue model is designed to ensure that human rights are considered in the development of laws and policies, in the delivery of public services, and in the government’s decision-making. The model encourages each part of our democratic system to play a role in protecting and promoting human rights. Charter rights Most of the human rights protected by the Human Rights Charter are drawn from the International Covenant on Civil and Political Rights . The 20 Charter rights include: • ‘freedoms’ that reflect traditional civil liberties; • ‘substantive rights’ that reflect human autonomy and dignity; and • ‘procedural rights’ that apply to judicial and legal processes. Freedoms: • freedom from forced work (s 11); • freedom of movement (s 12); • freedom of thought, conscience, religion and belief (s 14); • freedom of expression (s 15); • freedom of association and peaceful assembly (s 16). Substantive rights : • right to recognition and equality before the law (s 8); • right to life (s 9); • right to protection from torture and cruel, inhuman or degrading treatment (s 10); • right to privacy and reputation (s 13); • right to protection of families and children (s 17); • right to take part in public life, to vote and to access public office (s 18); • cultural rights (s 19); • property rights (s 20); • right to liberty and security of person (s 21); • right to humane treatment when deprived of liberty (s 22). Procedural rights : • rights of children in the criminal process (s 23); • right to a fair hearing (s 24); • rights in criminal proceedings (s 25); • right not to be tried or punished more than once (s 26); • rights relating to retrospective criminal laws (s 27). Limitations on rights Under the Charter (s 7), a human right may be subject under law only to such reasonable limits as can be dem­ onstrably justified in a free and democratic society. A decision about whether a human right may be limited needs to take into account all relevant factors, including: • the nature of the right; • the importance of the purpose of the limitation; • the nature and extent of the limitation; • the relationship between the limitation and its purpose; • any less restrictive means reasonably available to achieve the purpose sought by the limitation. Therefore, the human rights set out in the Charter are not absolute; they can be limited or balanced with competing rights and public interests. However, any limit on rights must have a clear legal basis and must be reasonable and proportionate in the circumstances. Obligations of public authorities: A duty of compliance The Charter imposes an obligation on ‘public authorities’ (defined in s 4) to act in a way that is compatible with human rights and to give proper consideration to relevant human rights in their decision-making (s 38). This means that public authorities (including private bodies performing public functions on behalf of government) must consider human rights when developing policies and executing their functions. It is unlawful for a public authority to act in a way that is incompatible with a human right, or in making a decision, to fail to give proper consideration to a relevant human right. The obligation does not apply to acts or decisions of a private nature. Nor does it require a public authority to act in a way, or make a decision, that would impede or prevent a religious body from acting in conformity with its religious doctrines, beliefs or principles. The obligation also does not apply if, as