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3.1. Public authorities

The meaning of ‘public authority’ (s 4)

Overview

  1. Section 4(1) defines the term public authority for the purposes of the Charter. The full definition can be found below.
  2. The emphasis of the definition of public authorities:

    is on matters of substance, not form or technicalities. This accords with the statement in the second reading speech that the ’intent is that the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature’ (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [111]).

  3. The definition in s 4(1) recognises that certain entities will always be public authorities (‘core’ public authorities) whereas other entities will be public authorities only when performing functions on behalf of the State or another public authority (‘functional’ public authorities) (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 3–4).
  4. Subsections 4(1)(a)-(b) and (d)–(g) specify core public authorities. Some of these subsections are specific; they refer to particular entities, such as Victoria Police or Ministers, or to entities defined in other legislation, such as public officials or Councils. Subsection (b), however, is more general; it sets out criteria for determining whether any given entity is a core public authority.
  5. Subsection 4(1)(c) provides for functional public authorities and, like s 4(1)(b), it sets out criteria for determining whether and when a particular entity will be a public authority rather than naming any specific entity.
  6. A key criterion for determining whether a certain entity is a public authority under either ss 4(1)(b) or 4(1)(c) is whether it has functions ‘of a public nature’. Section 4(2) sets out a list of factors that may be taken into account in deciding whether a particular function is of a public nature. The factors are not exhaustive and the existence of one or more of the listed factors, in respect of a particular entity, is not determinative (s 4(3)).
  7. Regulations made pursuant to the Charter can declare any entity to be a public authority (s 4(1)(h)) or not to be a public authority (s 4(1)(k)). The regulations currently do not declare any entities as public authorities, but they declare that the Adult Parole Board, Youth Residential Board and Youth Parole Board are not public authorities. The regulations will be remain in force until 22 October 2023 unless amended or repealed (Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013, regulation 5, endnotes).
  8. Finally, subsections 4(1)(i)–(k) specify entities that are not public authorities.

    Core and functional public authorities

    Core public authorities – named institutional entities

  9. Public officials (s 4(1)(a)), Victoria Police (s 4(1)(d)), Councils (s 4(1)(e)), and Ministers (s 4(1)(f)) are all specifically named as ‘core’ public authorities. Members of Parliamentary Committees, when they are acting in an administrative capacity (s 4(1)(g)), are also core public authorities (Metro West v Sudi [2009] VCAT 2025 [88]).
  10. Public officials are defined with reference to the meaning of that term in the Public Administration Act 2004, and include:

    employees of the public service, including the Head of a government department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Victorian Public Sector Commissioner. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices (Note to Charter s 4(1)(a)).

  11. The definition of ‘public official’ in the Public Administration Act 2004 specifies that certain people are not public officials, and those people are therefore also not public authorities under s 4(1)(a) of the Charter. They may, however, fall within one of the other subsections of the public authority definition. The list of people specified as not being public officials includes:
  12. Councils are defined with reference to the Local Government Act 1989. Councillors and Council staff within the meaning of that Act are also included in the definition of public authorities (s 4(1)(e)).

    Core public authorities – s 4(1)(b) entities

  13. More generally, any entity will be a core public authority, under s 4(1)(b), if it is established by a statutory provision and has functions of a public nature. For example, the Office of the Ombudsman is a core public authority under s 4(1)(b) (Metro West v Sudi [2009] VCAT 2025[106], citing Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1293 (Rob Hulls, Attorney-General)).
  14. Entities can be legal persons, human beings or unincorporated bodies (Note to s 4(1)(b)).
  15. Courts and tribunals are generally considered to fall into this s 4(1)(b) category of core public authorities, but their status as such is limited by s 4(1)(j). Section 4(1)(j) states that courts and tribunals are public authorities only when acting in an administrative capacity. For more information see 2.4. Courts and tribunals as public authorities.
  16. The meaning of ‘functions of a public nature’ is discussed below.

    Entities declared public authorities under regulation

  17. Entities declared to be public authorities under Charter regulations pursuant to s 4(1)(h) may presumably be either core or functional public authorities, depending on the nature of the entity and the wording of the regulation. Currently, the regulations do not declare any entities as public authorities under s 4(1)(h).

    Functional public authorities – s 4(1)(c) entities

  18. A functional public authority is an entity ‘whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority’ (s 4(1)(c)). This is a reflection of the modern tendency to outsource functions of a typically governmental nature to private entities to manage and deliver services (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 4; Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1294 (Rob Hulls, Attorney-General)).
  19. Two criteria are used to determine whether an entity is a functional public authority under s 4(1)(c). Firstly, the entity must be exercising functions on behalf of the State or a public authority, whether under contract or otherwise. Second, those functions must be or must include functions of a public nature.
  20. Subsections 4(4)–(5) assist with deciding whether an entity is acting ‘on behalf of the State or a public authority’ for the purposes of s 4(1)(c). Section 4(4) states that an agency relationship is not required. A more informal or ‘loosely connected arrangement’ between the entity in question and the State or public authority may suffice, such as the entity acting as a representative of the State or public authority or for its purposes (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 6).
  21. The Explanatory Memorandum suggests that the degree of government regulation and control of the functions being performed by the entity should be considered when looking at this question (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 6).
  22. Section 4(5) notes that public funding of an entity to perform a function does not necessarily mean that the function is being exercised on behalf of the State or a public authority. However, this factor may be relevant in determining the nature of the function itself, that is, whether it is of a public nature.
  23. In Metro West v Sudi, VCAT found that Metro West Housing Services Limited was acting on behalf of the State or a public authority under s 4(1)(c). Metro West was a private company incorporated by a number of community-based organisations. It was an independent contractor to the Victorian government, providing transitional housing to those at risk of homelessness. It was not established, owned or controlled by the government. Relevant factors included:
  24. Section 4(1)(c) has been applied in relation to a corporation which managed one of five sport and recreation centres in the Hobsons Bay municipality on behalf of the Council, and to private welfare agencies under contract with the Department of Housing (Hobsons Bay City Council (Anti-Discrimination Exemption) [2009] VCAT 1198 [35]; Homeground Services v Mohamed [2009] VCAT 1131 [1]–[2]; AVW v Nadrasca Ltd (Residential Tenancies) [2017] VCAT 1462 [78]).
  25. The second criterion for determining whether an entity is a functional public authority under s 4(1)(c) is whether all or some of its functions are public in nature. This factor is relevant not only to functional public authorities under s 4(1)(c), but also to the category of core public authorities under s 4(1)(b: entities established by a statutory provision that have functions of a public nature.

    Functions of a public nature

  26. Two categories of public authorities are defined by having ‘functions of a public nature’ (s 4(1)(b)–(c)).
  27. In the Charter, the term ‘function’ also refers to a power, authority and duty, and the ‘exercise of a function’ includes the performance of a duty, where the function is a duty (s 3(2)).
  28. Section 4(2)(a)–(e) sets out an open list of factors that may be taken into account in determining whether a particular entity has functions of a public nature:
  29. The list of factors is explicitly open (s 4(3)(a)). The presence of one or more of these factors may be relevant, but does not necessarily mean a function is ‘public’ (s 4(3)(b)).
  30. The Charter and the Explanatory Memorandum provide some examples of functions that may be of a public nature:
  31. Metro West Housing Services Limited was found to be an entity with functions ‘of a public nature’ and was therefore a functional public authority under s 4(1)(c) when exercising those public functions. Metro West was an independent contractor to the Victorian government, providing transitional housing to those at risk of homelessness. Relevant factors included:
  32. The following are examples of entities found to have functions ‘of a public nature’ under:
  33. The factors in s 4(2) were taken from United Kingdom decisions on the Human Rights Act 1998 (UK) and New Zealand decisions on the Bill of Rights Act 1990 (NZ) (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 4).

    Which entities are not public authorities?

  34. The definition of public authority explicitly excludes Parliament and those exercising functions in connection with Parliamentary proceedings (s 4(1)(i)). This is a complete carve out, so that Parliament and Members of Parliament, in their capacity as such, are never bound as public authorities under the Charter whether or not they are acting in an administrative capacity.
  35. Courts and tribunals are also excluded from the definition of public authorities, other than when they are acting in an administrative capacity (s 4(1)(j)). They are not public authorities under the Charter when they are acting in a judicial capacity. For more information see 2.4. Courts and tribunals as public authorities.
  36. Like courts and tribunals, members of Parliamentary Committees are public authorities only when they are acting in an administrative capacity (s 4(1)(g)). The Charter provides no examples, but the Explanatory Memorandum gives ‘hiring staff’ as an example of acting in an administrative capacity (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 4).
  37. Section 4(1)(k) excludes any entities that have been declared not to be a public authority under Charter regulations. The entities so excluded, under regulation 5 of the Charter of Human Rights And Responsibilities (Public Authorities) Regulations 2013, are:

    Charter extract - s 4: What is a public authority?

    4 What is a public authority?

    (1) For the purposes of this Charter a public authority is—

    (a) a public official within the meaning of the Public Administration Act 2004; or

    Note

    A public official under the Public Administration Act 2004 includes employees of the public service, including the Head of a government department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Victorian Public Sector Commissioner. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices.

    (b) an entity established by a statutory provision that has functions of a public nature; or

    Notes

    1 In section 38 of the Interpretation of Legislation Act 1984 entity is defined to include a person (both a human being and a legal person) and an unincorporated body.

    2 See subsection (2) in relation to "functions of a public nature".

    (c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise); or

    Example

    A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the State it is not a public authority for the purposes of this Charter.

    Note

    See subsections (4) and (5) in relation to "on behalf of the State or a public authority".

    (d) Victoria Police; or

    (e) a Council within the meaning of the Local Government Act 1989 and Councillors and members of Council staff within the meaning of that Act; or

    (f) a Minister; or

    (g) members of a Parliamentary Committee when the Committee is acting in an administrative capacity; or

    (h) an entity declared by the regulations to be a public authority for the purposes of this Charter—

    but does not include—

    (i) Parliament or a person exercising functions in connection with proceedings in Parliament; or

    (j) a court or tribunal except when it is acting in an administrative capacity; or

    Note

    Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

    (k) an entity declared by the regulations not to be a public authority for the purposes of this Charter.

    (2) In determining if a function is of a public nature the factors that may be taken into account include—

    (a) that the function is conferred on the entity by or under a statutory provision;

    Example

    The Transport (Compliance and Miscellaneous) Act 1983 confers powers of arrest on an authorised officer under that Act.

    (b) that the function is connected to or generally identified with functions of government;

    Example

    Under the Corrections Act 1986 a private company may have the function of providing correctional services (such as managing a prison), which is a function generally identified as being a function of government.

    (c) that the function is of a regulatory nature;

    (d) that the entity is publicly funded to perform the function;

    (e) that the entity that performs the function is a company (within the meaning of the Corporations Act) all of the shares in which are held by or on behalf of the State.

    Example

    All the shares in the companies responsible for the retail supply of water within Melbourne are held by or on behalf of the State.

    (3) To avoid doubt—

    (a) the factors listed in subsection (2) are not exhaustive of the factors that may be taken into account in determining if a function is of a public nature; and

    (b) the fact that one or more of the factors set out in subsection (2) are present in relation to a function does not necessarily result in the function being of a public nature.

    (4) For the purposes of subsection (1)(c), an entity may be acting on behalf of the State or a public authority even if there is no agency relationship between the entity and the State or public authority.

    (5) For the purposes of subsection (1)(c), the fact that an entity is publicly funded to perform a function does not necessarily mean that it is exercising that function on behalf of the State or a public authority.

Last updated: 10 October 2018

See Also

3. The Charter’s Effect on Public Authorities

3.2. Obligations on public authorities (s 38)

3.3. Proceedings for breach of the Charter (s 39)