Obligation of public authorities under the Victorian Charter
📘 The Victorian Charter: Overview
The Charter of Human Rights and Responsibilities Act 2006 (Vic) is a statutory bill of rights that outlines the civil and political rights of individuals in Victoria and imposes legal obligations on public authorities to respect, protect, and promote these rights.
🔹 Key Obligations of Public Authorities Under the Charter
Under Section 38(1) of the Charter:
“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.”
✅ Obligations Include:
Substantive Obligation:
Public authorities must not act incompatibly with protected human rights unless a reasonable and demonstrably justified limit applies (under s 7(2)).
Procedural Obligation:
Public authorities must give proper consideration to human rights when making decisions.
Interpretation Obligation (s 32):
All statutory provisions must be interpreted, so far as is possible consistently with their purpose, in a way that is compatible with human rights.
Limitation Clause (s 7(2)):
Rights can be limited, but only in proportionate and justified circumstances, considering the nature of the right, the purpose of limitation, and less restrictive means.
🏛️ Who Is a “Public Authority”?
Under Section 4 of the Charter, this includes:
Government departments and agencies
Local councils
Victoria Police
Public schools and hospitals
Private entities carrying out public functions (e.g., contracted services)
⚖️ Key Case Law Examples (Explained in Detail)
1. Momcilovic v The Queen (2011) 245 CLR 1
Facts:
Momcilovic was convicted of drug trafficking. She challenged the reverse onus provision in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) as incompatible with the presumption of innocence (s 25(1) of the Charter).
Issue:
How does the Charter affect statutory interpretation and compatibility of laws?
Held:
The High Court held that s 32(1) of the Charter requires courts to interpret laws compatibly with rights, but not rewrite them.
The drug law was inconsistent with the Charter, but still valid because s 36 declaration of incompatibility does not invalidate a law.
Principle:
The Charter requires courts and public authorities to interpret laws compatibly with rights where possible, but courts cannot strike down laws under the Charter.
2. Castles v Secretary, Department of Justice (2010) VSC 310
Facts:
A woman in prison (Castles) was denied access to IVF treatment. She argued this violated her right to privacy and family life under s 13 and s 17(1) of the Charter.
Held:
The Department of Justice was a public authority and failed to properly consider her rights in making the decision.
Principle:
A failure to consider relevant rights in decision-making can render a public authority’s action unlawful under s 38 of the Charter.
3. Kracke v Mental Health Review Board (2009) VCAT 646
Facts:
Mr. Kracke was subject to an involuntary treatment order. The review was delayed beyond the statutory time limit. He claimed this violated his right to a fair hearing and liberty.
Held:
VCAT held that human rights must be considered when exercising functions under relevant statutes.
Failure to act within a reasonable time can breach Charter rights.
Principle:
The Charter imposes a procedural obligation to actively consider human rights when exercising statutory powers.
4. Lifestyle Communities Ltd v Permanent Secretary (Human Services) (2009) VCAT 1869
Facts:
Planning dispute where the tribunal had to consider the impact of development on the rights of persons with disabilities and the elderly.
Held:
VCAT held that public authorities must balance competing rights under the Charter and justify any limitation.
Principle:
Public authorities must weigh competing rights and justify any limitation under the Charter’s proportionality test (s 7(2)).
5. Burgess v Director of Housing (2005) VSC 280
Facts:
Mr. Burgess challenged a decision by the Director of Housing not to renew his tenancy, arguing this decision breached his right to privacy and home life.
Held:
The decision-maker failed to consider relevant rights under the Charter.
The court found the failure to give proper consideration breached s 38(1).
Principle:
Public housing authorities, as public authorities, must consider human rights in eviction and housing decisions.
📝 Summary Table of Cases and Principles
| Case | Right Involved | Key Legal Principle |
|---|---|---|
| Momcilovic v The Queen | Presumption of innocence (s 25) | Charter can't strike down laws, but courts must interpret them compatibly where possible |
| Castles v Secretary DOJ | Privacy and family life (s 13, s 17) | Failure to consider rights makes a decision unlawful under s 38 |
| Kracke v Mental Health Review Board | Fair hearing, liberty (s 21, s 24) | Delays can breach human rights; proper consideration of rights is essential |
| Lifestyle Communities v Secretary | Equality, dignity, housing | Must balance and justify limitations under s 7(2) |
| Burgess v Director of Housing | Privacy, home life (s 13) | Evictions must be compatible with Charter rights and properly considered |
✅ Conclusion
Under the Victorian Charter, public authorities are under strict legal obligations to:
Act compatibly with protected human rights, and
Consider those rights properly when making decisions.
These obligations are enforceable under Section 38(1) of the Charter, and failure to comply can invalidate decisions or expose public authorities to legal challenge.
Courts and tribunals, especially VCAT and the Supreme Court of Victoria, play a key role in interpreting and enforcing these obligations through administrative and judicial review processes.
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