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6.1. Introduction: ‘Charter rights’

  1. The Charter defines ‘human rights’ as those civil and political rights which are set out in Part 2 of the Charter (s 3). These are the rights which the Victorian Parliament specifically seeks to promote and protect (s 7(1)).
  2. Section 5 of the Charter states that ‘[a] right or freedom not included in this Charter that arises or is recognised under any other law … must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.’ This section was included to ensure that the Charter could not be used to limit any right which a person holds under any law other than the Charter such as international law, common law, or the Constitution, simply because it is missing from the Charter (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 6).
  3. Section 5 recognises that the Charter is not the only source of human rights. A number of human rights are expressed within international law, Australian common law, the Constitution, and other sources, and not all of the human rights expressed elsewhere are included in the Charter. For example, the Charter does not include any of the economic, social or cultural rights set out in the ICESCR, and also omits some of the rights included in the ICCPR.
  4. Under the Charter, while human rights are universal, they are not absolute. One person’s enjoyment of a human right may require that another of their rights be limited, or that another person’s rights be limited, in order to protect the operation of a free and democratic society. Section 7(2) of the Charter deals with this by specifying when limits may lawfully be placed on Charter rights.
  5. The Charter lists the rights which Parliament seeks to protect and promote, and explains when those rights might be limited. It is left to those applying the Charter, including public authorities, Parliament and the courts, to consider the nature or meaning of each Charter right, and whether a proposed limitation is justified.
  6. When enacting the Charter, Parliament intended that s 32(2) would operate as a guide to the nature and meaning of Charter rights. Section 32(2) provides that ‘[i]nternational law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision’ (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 8).
  7. For more detail on the use of s 32(2) in interpreting the scope of Charter rights, see2.2. Statutory interpretation).
  8. Human rights, including Charter rights, are to be construed in the broadest possible way. They should be interpreted purposively, in a non-technical way, and not subjected to a proportionality analysis at the outset (see, eg, Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [75]-[91]; Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 [80] (Warren CJ); Director of Public Transport v XFJ [2010] VSC 319 [70]; Director of Housing v Sudi [2010] VCAT 328 [90]; PJB v Melbourne Health & Anor (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327 [36]; Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 [143]).
  9. Thus, when considering whether a particular statutory provision, act or decision affects a person’s human rights, public authorities, Parliament and the courts should first determine which rights are engaged and the full scope of those rights. Then, depending on the context, they should consider whether the statutory provision, act, or decision under consideration imposes a reasonable limitation on the rights engaged which is demonstrably justified in a free and democratic society.
  10. For further information, see 5. Limitations on Charter Rights.

Last updated: 1 September 2017

 

See Also

6. Charter Rights

6.2. Recognition and equality before the law (s 8)

6.3. Right to life (s 9)

6.4. Protection from torture and cruel, inhuman or degrading treatment (s 10)

6.5. Freedom from forced work (s 11)

6.6. Freedom of movement (s 12)

6.7. Privacy and reputation (s 13)

6.8. Freedom of thought, conscience, religion and belief (s 14)

6.9. Freedom of expression (s 15)

6.10. Peaceful assembly and freedom of association (s 16)

6.11. Protection of families and children (s 17)

6.12. Taking part in public life (s 18)

6.13. Cultural rights (s 19)

6.14. Property (s 20)

6.15. Right to liberty and security of the person (s 21)

6.16. Humane treatment when deprived of liberty (s 22)

6.17. Children in the criminal process (s 23)

6.18. Fair hearing (s 24)

6.19. Rights in criminal proceedings (s 25)

6.20. Right not to be tried or punished more than once (s 26)

6.21. Retrospective criminal laws (s 27)