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National Human Rights Consultation - Appendix 4

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Friday 14 December, 2012

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Appendix
4 – What legal mechanisms protecting human rights exist in other
jurisdictions?

word icon Appendix 4: What legal mechanisms protecting human rights exist in other jurisdictions?

Contents


  1. In many other countries, human rights are protected through uniform human
    rights legislation, such as a Human Rights Act, or are entrenched in the
    country’s constitution.
  2. Statutory human rights protection has also been introduced in the Australian
    Capital Territory (ACT) and Victoria.
  3. This Appendix outlines how human rights are protected in Canada, New
    Zealand, South Africa, the United Kingdom (UK), the ACT and
    Victoria.[1]
  4. Civil and political rights contained in the International Covenant on
    Civil and Political Rights
    (ICCPR) form the base minimum of human rights
    protections in these
    jurisdictions.[2] In South Africa, some economic, social, and cultural rights are protected. The
    UK recognises the right to education in addition to civil and political
    rights.
  5. While the United States also has a Bill of Rights as part of its
    Constitution, it has not been included in this overview as it is not modelled on
    international human rights law.

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1 Canada

  1. Human rights are protected under the Canadian Charter of Rights
    and Freedoms
    (Canadian Charter), which forms part of the Constitution of
    Canada.[3]
  2. The Canadian Charter came into effect in 1982, with the exception of the
    provisions governing equality rights, which came into effect in
    1985.[4]
  3. The Canadian Charter was preceded by the Canadian Bill of Rights 1960 (Can) (Canadian Bill of Rights). This is a federal statute that applies only to
    the Parliament and government of Canada (and not to the governments or
    legislatures of Canada’s provinces). The Canadian Charter did not repeal
    the Canadian Bill of Rights. It has however, in practice, replaced the Canadian
    Bill of Rights, as it provides more comprehensive human rights protection, with
    a greater role for the courts.

1.1 Which
rights are protected under the Canadian Charter?

  1. The Canadian Charter mainly protects civil and political rights, as well as
    guaranteeing the language rights of Canadian citizens. Rights are organised in
    the following groups:

    • fundamental freedoms (for example, freedom of conscience and
      religion)[5]
    • democratic rights (for example, the right to
      vote)[6]
    • mobility rights (for example, the right to enter, remain in and leave
      Canada)[7]
    • legal rights (for example, the rights of an accused
      person)[8]
    • equality rights (the right to equality before and under law, and equal
      protection and benefit of law; and affirmative action
      programs)[9]
    • official languages of Canada (the official languages are English and
      French)[10]
    • minority language education rights (rights to obtain education in English
      and French throughout
      Canada).[11]
  2. Economic, social and cultural rights are not expressly recognised in the
    Canadian Charter. The guarantee of equality contained in the Charter has been
    interpreted, however, to guarantee the delivery of some government services on a
    non-discriminatory basis.[12]

1.2 How
are rights limited under the Canadian Charter?

  1. The rights protected in the Canadian Charter are subject to a general
    limitations clause:

    The Canadian Charter of Rights and
    Freedoms
    guarantees the rights and freedoms set out in it subject only to
    such reasonable limits prescribed by law as can be demonstrably justified in a
    free and democratic society.[13]

  2. The Canadian Charter also enables the federal Parliament or the legislature
    of a province to override some of the protected human
    rights:

    Parliament or the legislature of a province may expressly
    declare in an Act of Parliament or of the legislature, as the case may be, that
    the Act or a provision thereof shall operate notwithstanding a provision
    included in section 2 or sections 7 to 15 of this
    Charter.[14]

  3. If the Parliament or a legislature of a province exercises the override
    power, the limitation is valid for up to five
    years,[15] and the limitation may be
    renewed.[16]

1.3 Does
the Canadian Charter impact on law-making?

  1. As noted above, the Parliament or the legislature of a province can restrict
    a right protected in the Canadian Charter by exercising the
    ‘notwithstanding’ clause in section 33(1).
  2. The Canadian Charter does not impose any requirements on the law-making
    process. The fact that rights are constitutionally entrenched is likely to
    ensure that they are taken into account when legislation is drafted. Where the
    Parliament or legislature of a province has not exercised the override power, a
    court can invalidate a legislative provision which infringes a constitutionally
    protected right.

1.4 Does
the Canadian Charter require the government to act consistently with the
protected rights?

  1. Yes. The Charter applies to:

    • the Parliament and
      government of Canada in respect of all matters within the authority of
      Parliament[17]
    • the legislature and
      government of each province in respect of all matters within the authority of
      the legislature of each
      province.[18]

1.5 What
is the role of the courts under the Canadian Charter?

  1. Courts have the power to invalidate any legislative provision which
    impermissibly breaches a protected right. As set out in section 1 of the
    Canadian Charter, protected rights are subject only to reasonable limits, which
    are prescribed by law and can be demonstrably justified in a free and democratic
    society. If a restriction on a protected right does not meet these requirements,
    it can be invalidated.[19]
  2. Where a person’s human rights have been infringed or denied, the
    Canadian Charter provides that an individual can apply to a court for a remedy,
    and the court may provide a remedy which it considers ‘appropriate and
    just in the
    circumstances’.[20]

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2 New
Zealand

  1. Human rights are protected under the New Zealand Bill of Rights Act
    1990
    (NZ) (NZ Bill of Rights). The NZ Bill of Rights is an ordinary Act,
    which came info effect on 25 September
    1990.[21]

2.1 Which
rights are protected under the New Zealand Bill of Rights?

  1. The NZ Bill of Rights protects civil and political rights. Most of the
    rights contained in the ICCPR are included in the NZ Bill of Rights, with some
    notable exceptions such as the right to privacy. Protected rights in the NZ Bill
    of Rights are grouped under the following headings:

    • life and security of the
      person[22]
    • democratic and civil
      rights[23]
    • non-discrimination and minority
      rights[24]
    • search, arrest and
      detention.[25]
  2. The NZ Bill of Rights does not expressly protect economic, social and
    cultural rights.

2.2 How
are rights limited under the New Zeealand Bill of Rights?

  1. Human rights contained in the NZ Bill of Rights are subject to a general
    limitations clause, which states that rights:

    may be subject only
    to such reasonable limits prescribed by law as can be demonstrably justified in
    a free and democratic
    society.[26]

2.3 Does
the New Zealand Bill of Rights impact on law-making?

  1. Yes. When a bill is introduced into the House of Representatives, the
    Attorney-General must bring to the attention of the House any provision of the
    bill which appears to be inconsistent with the rights protected in the NZ Bill
    of Rights.[27]

2.4 Does
the New Zealand Bill of Rights require the government to act consistently with
the protected rights?

  1. Yes. Section 3 states that the NZ Bill of Rights applies to acts done:

    • (a) By the legislative, executive, or judicial branches of the government of
      New Zealand; or
    • (b) By any person or body in the performance of any public function, power,
      or duty conferred or imposed on that person or body by or pursuant to law.
  2. The New Zealand Ministry of Justice has published guidelines to assist
    government and public authorities to ensure that their legislation, policies and
    practices are consistent with the NZ Bill of
    Rights.[28]
  3. The guidelines also recognise that the scope of section 3(b) of the NZ Bill
    of Rights is not completely certain. The guidelines provide a list of relevant
    factors for determining whether an organisation is covered by section 3(b),
    including whether the organisation is:

    • acting in the public interest
    • conferring a public benefit
    • acting to implement or in furtherance of government policy or strategy
    • under special obligations or responsibilities that other (private) bodies do
      not have
    • receiving or involved with public funding (although this is not
      determinative on its own)
    • exercising powers under statute or
      regulation.[29]

2.5 What
is the role of the courts under the New Zealand Bill of Rights?

  1. Courts do not have the power to invalidate legislative provisions if they
    are inconsistent with the NZ Bill of Rights.
  2. The courts have the power to find that a body included in section 3 of the
    NZ Bill of Rights has infringed an individual’s human rights. Although the
    NZ Bill of Rights does not expressly provide for remedies in the event of an
    infringement, in 1994 the New Zealand Court of Appeal held that effective and
    appropriate remedies must be available for a breach of one of the rights
    contained in the NZ Bill of
    Rights.[30] President Cooke stated
    that ‘we would fail in our duty if we did not give an effective remedy to
    a person whose legislatively affirmed rights have been
    infringed’.[31]
  3. Since 1994, courts have applied a range of remedies in respect of a breach
    of an individual’s human rights, including issuing a stay of proceedings,
    excluding ‘tainted’ evidence, reducing an offender’s sentence,
    and awarding monetary
    compensation.[32]

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3 South
Africa

  1. The South African Bill of Rights forms part of the Constitution of the
    Republic of South Africa. The Constitution, including the Bill of Rights, was
    approved by the South African Constitutional Court on 4 December 1996 and took
    effect on 4 February 1997.

3.1 Which
rights are protected under the Bill of Rights?

  1. The South African Bill of Rights protects the majority of the civil and
    political rights contained in the ICCPR.
  2. The South African Bill of Rights is particularly notable for
    constitutionally entrenching a range of human rights in addition to the rights
    contained in the ICCPR, including:

    • enhanced protection of equality
      rights[33]
    • some economic, social and cultural
      rights[34]
    • rights specific to
      children[35]
    • rights directed at ensuring procedural fairness in dealing with government,
      public authorities and the
      courts[36]
    • a right to a clean environment and environmental
      conservation.[37]

(a) Protection
of equality

  1. The South African Bill of Rights contains detailed equality provisions.
    Section 9(1) states that:

    Everyone is equal before the law and has
    the right to equal protection and benefit of the law.

  2. Section 9(2) provides further detail, clarifying that:

    Equality
    includes the full and equal enjoyment of all rights and freedoms. To promote the
    achievement of equality, legislative and other measures designed to protect or
    advance persons, or categories of persons disadvantaged by unfair discrimination
    may be taken.

  3. In other words, the objective of the South African Bill of Rights is the
    achievement of substantive equality. It is not sufficient that individuals have
    formal recognition of equality before the law – individuals are also
    entitled to ‘full and equal enjoyment’ of all rights and freedoms.
    This places upon the state a significantly greater obligation of ensuring
    equality.
  4. Section 9(3) provides broad grounds of non-discrimination, including
    ‘race, gender, sex, pregnancy, marital status, ethnic or social origin,
    colour, sexual orientation, age, disability, religion, conscience, belief,
    culture, language and birth’.

(b) Economic,
social and cultural rights

  1. Some of the economic, social and cultural rights included in the South
    African Bill of Rights are:

    • labour relations, such as the right to fair labour practices and the
      right(s) to join and participate in a trade
      union[38]
    • the right to access adequate
      housing[39]
    • the right to access healthcare services, sufficient food and water and
      social security[40]
    • the right to basic education for
      all.[41]

(c) Rights
of the child

  1. The South African Bill of Rights constitutionally entrenches a number of the
    human rights contained in the Convention on the Rights of the Child (CRC).[42] These are directed at
    ensuring that children are protected from ill-treatment or exploitation, and
    that the best interests of the child are a primary consideration in all
    decisions affecting the
    child.[43]

(d) Procedural
fairness rights

  1. The South African Bill of Rights contains some rights which are not
    specifically stated in international human rights instruments, but which promote
    the fair and effective functioning of a democratic state.
  2. The first of these is the right of access to information held by the state,
    or held by another person and which is required for the exercise or protection
    of any rights.[44] The South African
    Bill of Rights requires national legislation to be enacted to give effect to
    this right.[45] The right of access
    to information is derived from the right to freedom of expression, which is
    outlined in article 19 of the ICCPR. International courts and tribunals have
    held that the right to freedom of expression includes the right of access to
    information.[46] The South African
    Bill of Rights is one of the first national constitutions to expressly recognise
    the right of access to information.
  3. The second of these rights is the right to just administrative
    action.[47] This right brings
    together some of the key principles of administrative law, including that:

    • administrative action should be lawful, reasonable and procedurally
      fair
    • where a person is adversely affected by administrative action, that person
      has the right to be given written reasons
    • judicial review shall be available in respect of administrative
      action.
  4. The third of these rights is the right to have legal disputes decided in a
    fair public hearing before a court or, where appropriate, by another independent
    and impartial tribunal.[48] This
    right of access to the courts seeks to ensure that all persons have the benefit
    of the protection and enforcement of legal rights, not just in respect of
    criminal proceedings.

(e) Environmental
rights

  1. The South African Bill of Rights also includes the right to a clean
    environment, both in respect of an individual’s immediate environment and
    in respect of the environment of future generations, including the right:

    • to an environment that is not harmful to one’s health or
      well-being[49]
    • to have the environment protected from degradation, for the benefit of
      future
      generations.[50]

3.2 How
are rights limited under the South African Bill of Rights?

  1. The South African Bill of Rights provides the following criteria for the
    limitation of protected rights:

    The rights in the Bill of Rights may
    be limited only in terms of law of general application to the extent that the
    limitation is reasonable and justification in an open and democratic society
    based on human dignity, equality and freedom, taking into account all relevant
    factors, including:

    • (a) the nature of the right;
    • (b) the importance of the purpose of the limitation;
    • (c) the nature and extent of the limitation;
    • (d) the relation between the limitation and its purpose; and
    • (e) less restrictive means to achieve the
      purpose.[51]
  2. Certain rights may be limited or suspended in the event that ‘a state
    of emergency’ is declared.[52] Section 37(2) provides general guidelines on the extent to which rights may be
    limited or suspended. Section 37(5) outlines a list of
    ‘non-derogable’ rights which cannot be limited or suspended, even in
    a state of emergency, including:

    • the right to equality
    • the right to human dignity
    • the right to life
    • the right to freedom and security of the person
    • the prohibition on slavery and servitude
    • the rights of the child outlined in section 28
    • the rights of arrested, detained and accused persons outlined in section
      35.[53]

3.3 Does
the South African Bill of Rights impact on law-making?

  1. The South African Bill of Rights does not impose specific requirements on
    the law-making process. However, the fact that rights are constitutionally
    entrenched helps to ensure that rights are taken into account when legislation
    is drafted, as legislative provisions which infringe a constitutionally
    protected right can be invalidated by the courts.

3.4 Does
the South African Bill of Rights require the government to act consistently with
the protected rights?

  1. Yes. The South African Bill of Rights imposes a positive duty on the state
    to ‘respect, protect, promote and fulfil the rights in the Bill of
    Rights’.[54] The South African
    Bill of Rights ‘applies to all law, and binds the legislature, the
    executive, the judiciary, and all organs of
    state’.[55]

3.5 What
is the role of the courts under the South African Bill of Rights?

  1. When interpreting the South African Bill of Rights, courts ‘must
    promote the values that underlie an open and democratic society based on human
    dignity, equality and
    freedom’.[56] When
    interpreting the Bill of Rights, courts must take international law into
    account,[57] and may take foreign
    law into account.[58]
  2. The Bill of Rights further provides that when interpreting legislation, or
    developing the common law or customary law, courts must promote ‘the
    spirit, purport and objects of the South African Bill of
    Rights’.[59]
  3. As rights are constitutionally enshrined, courts have the power to
    invalidate any legislative provision which breaches a protected right.
  4. However, the role of the courts is framed differently in respect of
    different rights. Specifically, in respect of the right of access to adequate
    housing, healthcare, sufficient food and water, and social security, the
    court’s role is to assess whether the state has taken ‘reasonable
    legislative and other measures, within its available resources to achieve the
    progressive realisation of ... these
    rights’.[60] In other words,
    the state has a duty of progressive realisation in relation to economic, social
    and cultural rights, rather than a duty to ensure that those rights are
    immediately guaranteed to all persons within the jurisdiction.
  5. The South African Bill of Rights also specifically provides that a broad
    range of people may seek the enforcement of any of the protected rights,
    including:

    • anyone acting in their own interest
    • anyone acting on behalf of another person who cannot act in their own
      name
    • anyone acting as a member of, or in the interest of, a group or class of
      persons
    • anyone acting in the public interest
    • an association acting in the interest of its
      members.[61]
  6. A court may grant ‘appropriate relief’ in respect of an
    infringement of a protected right, including a declaration of
    rights.[62]

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4 United
Kingdom

  1. In the UK, human rights are protected under the Human Rights Act 1998 (UK) (UK Human Rights Act). The UK Human Rights Act came into full force on 2
    October 2000. It is an ordinary piece of legislation.
  2. The UK Human Rights Act makes the rights contained in the European Convention for the Protection of Human Rights and Fundamental
    Freedoms
    [63] (European Convention on Human Rights) part of domestic UK law.
  3. Previously, to enforce rights under the European Convention on Human Rights
    it was necessary for an individual to first exhaust all remedies in the domestic
    courts, and then apply to the European Court of Human Rights. The UK Government
    estimated this process took an average of five years and cost on average
    £30,000.[64] Under the UK Human
    Rights Act, victims of violations of rights contained in the European Convention
    on Human Rights are able to have their cases examined in domestic courts and
    seek remedies which would afford them ‘just satisfaction’ for the
    wrong suffered.[65]

4.1 Which
rights are protected under the UK Human Rights Act?

  1. The UK Human Rights Act protects the rights contained in:

    • articles 2 to 12 and 14 of the European Convention on Human Rights (these
      restate, in very similar terms, many of the civil and political rights contained
      in the ICCPR)
    • articles 1 (protection of property), 2 (right to education) and 3 (right to
      free elections) of the First Protocol to the European Convention on Human
      Rights[66]
    • articles 1 and 2 of the Sixth Protocol to the European Convention on Human
      Rights,[67] which restrict the
      application of the death penalty to times of war or ‘imminent threat of
      war’.[68]
  2. Accordingly, the UK Human Rights Act protects predominantly civil and
    political rights. However, it also recognises the right to
    education.

4.2 How
are rights limited under the UK Human Rights Act?

  1. The UK Human Rights Act adopts the mechanism contained in the European
    Convention on Human Rights for the limitation of rights.
  2. The rights protected in the European Convention on Human Rights fall into
    three categories: absolute, limited and
    qualified.[69]
  3. An absolute right cannot be limited in any circumstances. Examples of
    absolute rights are the prohibition on torture and the prohibition on slavery
    and servitude.[70]
  4. Limited rights can be limited in specific circumstances, set out in the
    limitations clause which forms part of that right. It has been suggested that
    the limitations on these rights are those which may be necessary so as to strike
    a fair balance between the protection of individuals and the demands of the
    general interests of the whole
    community.[71] Limited rights
    include:

    • the right to liberty and security of the
      person[72]
    • the prohibition on forced
      labour[73]
    • the requirement that there is no punishment without
      law[74]
    • the right to marry[75]
    • the right to an education.[76]
  5. Qualified rights tend to be those which most obviously raise conflicts with
    the overall interests of society or the rights of
    others.[77] The scope of these
    rights is necessarily qualified by the effect that their protection has on the
    rights of others.[78] Qualified
    rights include:

    • the right to respect for private and family
      life[79]
    • the right to freedom of thought, conscience and religion – to the
      extent it relates to manifestation of religious
      beliefs[80]
    • the right to freedom of
      expression[81]
    • the right to freedom of assembly and
      association[82]
    • the right to peaceful enjoyment of
      possessions.[83]

4.3 Does
the UK Human Rights Act impact on law-making?

  1. Yes. The UK Human Rights Act requires the minister with conduct of any bill,
    before its second reading, to either make a ‘statement of
    compatibility’ or make a statement that he or she is unable to state that
    the bill is compatible with the rights contained in the European Convention on
    Human Rights.[84] Either statement
    must be in writing and
    published.[85] Where the minister
    has stated that the bill is compatible with the European Convention on Human
    Rights, this may assist the courts in finding a compatible meaning.
  2. The rationale behind this provision is that the government will not often
    wish to state publicly that it is acting incompatibly with an internationally
    binding human rights instrument.[86]
  3. The ‘statement of compatibility’ mechanism is complemented by
    the work of the UK Joint Committee on Human Rights. This is a parliamentary
    committee of twelve members, drawn from both houses of Parliament. One of the
    functions of the Joint Committee is to scrutinise all government bills and
    identify those with significant human rights implications for further
    examination.

4.4 Does
the UK Human Rights Act require the government to act consistently with the
protected rights?

  1. Yes. The UK Human Rights Act requires public authorities (defined to include
    the government) to act consistently with human rights. It is unlawful for a
    public authority to act in a way which is incompatible with a right protected in
    the European Convention on Human
    Rights.[87] This prohibition does
    not apply where, as a result of one or more provisions of primary legislation,
    the public authority could not have acted
    differently.[88]
  2. The UK Human Rights Act defines a ‘public authority’ to
    include:

    • a court or tribunal
    • any person certain of whose functions are functions of a public
      nature.[89]
  1. In order to preserve the sovereignty of the legislature, both houses of
    Parliament are excluded from the definition of ‘public authority’.
  2. Where a body has some functions of a public nature and some private
    functions, it is a ‘public authority’ to the extent of its public
    functions.[90]

4.5 What
is the role of the courts under the UK Human Rights Act?

  1. So far as is possible, courts must read and give effect to primary and
    subordinate legislation in a way that is compatible with the rights protected by
    the UK Human Rights Act.[91] When
    determining an issue which has arisen in connection with rights contained in the
    European Convention on Human Rights, the courts are required to take into
    account decisions by the European Court of Human Rights, amongst other sources,
    where the court considers the material to be relevant to the
    proceedings.[92]
  2. The UK Human Rights Act creates a cause of action for a person who has had
    his or her human rights breached by a public
    authority.[93] Where a court finds
    that a public authority has acted (or proposes to act) in a way that is
    inconsistent with a right protected by the European Convention on Human Rights,
    the court or tribunal has the power to ‘grant such relief or remedy, or
    make such order, within its powers as it considers just and
    appropriate’.[94] Damages may
    be awarded in civil cases, where damages are necessary to afford ‘just
    satisfaction’.[95]
  3. Courts also have the power to issue a ‘declaration of
    incompatibility’ if it is impossible for them to interpret primary
    legislation in a way that is compatible with the European Convention on Human
    Rights. This is a discretionary power.
  4. The courts have commented that a declaration of incompatibility is intended
    to be ‘a matter of last resort ... [which] ... must be avoided unless it
    is plainly impossible to do
    so’.[96]
  5. A declaration of incompatibility does not invalidate the legislation. The
    purpose of a declaration of incompatibility is to bring the tension between a
    law and human rights to the attention of Parliament. It also triggers the power
    for a minister to take remedial action to amend legislation in response to a
    declaration of incompatibility.[97]

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5 Australian
Capital Territory

  1. In the ACT, human rights are protected by the Human Rights Act 2004 (ACT) (ACT Human Rights Act). This is an ordinary statute. It was enacted
    following a consultation process conducted by an independent Consultative
    Committee. The ACT Human Rights Act came into full force on 1 July 2004.

5.1 Which rights are
protected under the ACT Human Rights Act?

  1. The rights protected in the ACT Human Rights Act are sourced from the ICCPR.
    However, the right to self-determination is amongst those not included.
  2. The ACT Human Rights Act does not protect economic, social or cultural
    rights. The inclusion of these rights was originally recommended by the
    Consultative Committee.[98] The
    first review of the ACT Human Rights Act proposed that the ACT Government should
    explore support for including certain economic, social and cultural rights (such
    as the rights to health, education and housing), and should revisit the issue as
    part of the five year review of the
    Act.[99]
  3. The ACT Human Rights Act is not exhaustive of the rights an individual may
    have under domestic or international
    law.[100]

5.2 How are rights
limited under the ACT Human Rights Act?

  1. The ACT Human Rights Act states that human rights ‘may be subject only
    to reasonable limits set by Territory laws that can be demonstrably justified in
    a free and democratic
    society’.[101]
  2. All relevant factors must be considered in deciding whether a limit is
    reasonable. This includes:

    • the nature of the right affected
    • 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 the
      limitation seeks to
      achieve.[102]
  3. Certain rights in the ACT Human Rights Act have internal limitations. For
    example, the Act states that the right to life applies to a person from the time
    of birth,[103] and it requires
    that an accused person be segregated from convicted people ‘except in
    exceptional
    circumstances’.[104]

5.3 Does the ACT
Human Rights Act impact on law-making?

  1. Yes. Bills presented to the Legislative Assembly by a minister must be
    accompanied by a written statement which states whether the bill is consistent
    with the human rights set out in the ACT Human Rights Act. If the bill is not
    consistent with human rights, the statement must explain how it is not
    consistent. The statement is to be prepared by the
    Attorney-General.[105]
  2. A standing committee must report to the Legislative Assembly about human
    rights issues raised by bills presented to the
    Assembly.[106]
  3. A failure to comply with these requirements does not affect the validity,
    operation or enforcement of any ACT
    law.[107]

5.4 Does the ACT
Human Rights Act require the government to act consistently with the protected
rights?

  1. The ACT Human Rights Act applies to public authorities, which include
    administrative units, ACT authorities and instrumentalities, ministers, police
    officers exercising functions under ACT laws and public
    employees.[108]
  2. The definition of ‘public authority’ also includes an entity
    whose functions are or include functions of a public nature, when it is
    exercising those functions for the Territory or a public
    authority.[109]
  3. The ACT Human Rights Act outlines a list of factors that may be considered
    when determining whether a particular function is ‘of a public
    nature’. It also outlines functions which are taken to be of a public
    nature, including the operation of places of detention and correctional
    centres.[110]
  4. Courts and the ACT Legislative Assembly are excluded from the definition of
    ‘public authority’, except when they are acting in an administrative
    capacity.[111]
  5. Other entities may ‘opt-in’ and become subject to the
    obligations of a public authority under the ACT Human Rights
    Act.[112]
  6. It is unlawful for a public authority to act in a way that is incompatible
    with a human right set out in the ACT Human Rights Act, or to fail to give
    proper consideration to a relevant human right in making a
    decision.[113]
  7. This does not apply if the act is done, or the decision made, under a law in
    force in the ACT:

    • that expressly requires the act to be done or the decision made in a way
      that is inconsistent with a human right
    • that cannot be interpreted consistently with a human
      right.[114]

5.5 What is the role
of the courts under the ACT Human Rights Act?

  1. An ACT law must be interpreted in a way that is compatible with human
    rights, so far as it is possible to do so consistently with the purpose of the
    law.[115]
  2. International law and the judgments of foreign and international courts and
    tribunals may be considered in interpreting a human right. The ACT Human Rights
    Act sets out criteria that must be taken into account in deciding whether such
    material should be
    considered.[116]
  3. The ACT Supreme Court may issue a declaration of incompatibility if it is
    satisfied that a Territory law is not consistent with a human right set out in
    the ACT Human Rights Act. This does not affect the validity, operation or
    enforcement of the incompatible law, or the rights or obligations of
    anyone.[117]
  4. There is no freestanding right to apply for a declaration – there must
    be an ‘existing litigious
    dispute’.[118]
  5. If the Supreme Court issues a declaration of incompatibility, the registrar
    of the Supreme Court must promptly provide a copy to the
    Attorney-General.[119] The
    Attorney-General must present a copy of the declaration to the Legislative
    Assembly within six sitting days of receiving it, and present a written response
    to the Assembly within six months of presenting the
    declaration.[120]
  6. Since 1 January 2009, the ACT Human Rights Act has provided for a direct
    right of action against a public authority for breach of its obligations under
    the Act. In such an action, the ACT Supreme Court can grant the relief it
    considers appropriate, with the exception of damages. This does not affect a
    right a person has to seek relief in relation to an act or decision of a public
    authority, or a right to damages, that exists independently of the ACT Human
    Right Act.[121]

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6 Victoria

  1. In Victoria, human rights are protected by the Charter of Human Rights
    and Responsibilities Act 2006
    (Vic) (Victorian Charter).
  2. The Victorian Charter came into operation on 1 January 2007, with the
    exception of Divisions 3 and 4 of Part 3 (relating to the interpretation of laws
    and the obligations on public authorities). Divisions 3 and 4 of Part 3 came
    into operation on 1 January
    2008.[122]

6.1 Which rights are
protected under the Victorian Charter?

  1. The rights protected by the Victorian Charter are predominantly civil
    and political rights.
  2. The Victorian Charter does not protect the right to self-determination.
  3. In general, the Victorian Charter does not protect economic, social and
    cultural rights. However, it does protect the right of persons with a particular
    cultural, religious, racial or linguistic background to enjoy their culture,
    declare and practise their religion, and use their
    language.[123] It recognises that
    ‘Aboriginal persons hold distinct cultural
    rights’.[124] And it
    provides that a person must not be deprived of their property other than in
    accordance with law.[125]
  4. The four-year review of the Charter must consider whether additional rights
    should be included in the Charter, including the right to self-determination,
    and rights under the ICESCR, the CRC and
    CEDAW.[126]
  5. A right or freedom not included in the Victorian Charter must not be taken
    to be abrogated or limited only because it is not included, or is only partly
    included, in the Charter.[127]

6.2 How are rights
limited under the Victorian Charter?

  1. The rights included in the Victorian Charter ‘may be
    subject under law only to such reasonable limits as can be demonstrably
    justified in a free and democratic society based on human dignity, equality and
    freedom’, and taking into account all relevant factors including:

    • the nature of the right
    • the importance and 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 that
      the limitation seeks to
      achieve.[128]
  2. Certain rights in the Charter also contain internal limitations. For
    example, the right to vote is limited to ‘every eligible
    person’.[129]

6.3 Does the
Victorian Charter impact on law-making?

  1. Yes. Bills introduced into Parliament must be accompanied by a statement
    that assesses whether the bill is compatible with the human rights protected by
    the Victorian Charter. This ‘statement of compatibility’ must
    state:

    • whether the bill is compatible with human rights and, if so, how it is
      compatible
    • if any part of the bill is incompatible with human rights, the nature and
      extent of the
      incompatibility.[130]
  1. A failure to comply with the statement of compatibility requirements in
    relation to any bill that becomes a law does not affect the validity, operation
    or enforcement of that law, or of any other statutory
    provision.[131]
  2. The Scrutiny of Acts and Regulations Committee must consider any bill
    introduced into Parliament and report to Parliament as to whether the bill is
    incompatible with human
    rights.[132]
  3. Parliament may make an ‘override declaration’ that expressly
    declares that an Act or a provision of an Act has effect despite being
    incompatible with the Victorian
    Charter.[133] This means that the
    Victorian Charter has no application to that Act or provision, to the extent of
    the override declaration.[134]
  4. The Charter specifies that it is the ‘intention of Parliament that an
    override declaration will only be made in exceptional
    circumstances’.[135] The
    Member of Parliament introducing a bill containing an override declaration must
    explain to Parliament the exceptional circumstances that justify the inclusion
    of the override declaration.[136] A provision of an Act containing an override declaration expires after five
    years.[137] However, Parliament
    can re-enact an override declaration at any
    time.[138]
  5. The Victorian Charter has no operation in relation to laws applicable to
    abortion or ‘child
    destruction’.[139]

6.4 Does the
Victorian Charter require the government to act consistently with the protected
rights?

  1. Yes. The Victorian Charter applies to ‘public authorities’,
    including public officials, Victoria police, local councils, ministers and
    members of parliamentary committees (when the committee is acting in an
    administrative capacity). It also applies to statutory authorities that have
    functions of a public nature, and to other entities whose functions are or
    include functions of a public nature, when they exercise those functions on
    behalf of the state or a public
    authority.[140]
  2. The Victorian Charter sets out a list of factors that may be taken into
    account in determining whether a function is of a public
    nature.[141]
  3. The definition of ‘public authority’ excludes Parliament. It
    also excludes courts and tribunals (except when they are acting in an
    administrative
    capacity).[142]
  4. The Victorian Charter requires public authorities to act consistently with
    human rights. 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.[143] This requirement does
    not apply if, under law, the public authority could not reasonably have acted
    differently or made a different
    decision.[144]
  5. Further, the Victorian Charter does not require a public authority to act in
    a way, or make a decision, that has the effect of impeding or preventing a
    religious body from acting in conformity with its religious doctrines, beliefs
    or principles.[145]

6.5 What is the role
of the courts under the Victorian Charter?

  1. All statutory provisions must be interpreted in a way that is compatible
    with human rights, so far as it is possible to do so consistently with the
    purpose of the statutory
    provision.[146] In interpreting a
    statutory provision, international law and the judgments of domestic, foreign
    and international courts and tribunals may be
    considered.[147]
  2. The Victorian Supreme Court may make a ‘declaration of inconsistent
    interpretation’ if it is of the opinion that a statutory provision cannot
    be interpreted consistently with a human
    right.[148]
  3. There is no freestanding right to apply for a declaration of inconsistent
    interpretation – there must be an ‘existing litigious
    dispute’.[149]
  4. A declaration of inconsistent interpretation does not affect the validity,
    operation or enforcement of the statutory provision in respect of which the
    declaration was made. Nor does it create any legal right or give rise to any
    civil cause of action.[150]
  5. The Supreme Court must provide a copy of any declaration of inconsistent
    interpretation to the
    Attorney-General.[151] As soon as
    reasonably practicable, the Attorney-General must give a copy of the declaration
    to the minister administering the statutory provision in
    question.[152] Within six months
    of receiving the declaration, that minister must prepare a written response and
    table both the declaration and the response before each House of Parliament, as
    well as publish them in the Government
    Gazette.[153]
  6. There is no freestanding cause of action under the Victorian Charter.
    However, if a person is otherwise entitled to seek a remedy against a public
    authority for an unlawful act or decision, the person may seek that remedy on a
    ground of unlawfulness under the
    Charter.[154] People are not
    entitled to be awarded damages for breaches of the
    Charter.[155]

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[1] See also Human Rights Law
Resource Centre, The National Human Rights Consultation: Engaging in the
Debate
(2008), pp 88 – 101. At http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/engaging-in-the-debate/#hide (28 May 2009).
[2]International
Covenant on Civil and Political Rights
(ICCPR), 1966. At http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 May 2009).
[3]Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act 1982
, being Schedule B to the Canada Act 1982 (UK).
[4]Canadian Charter of Rights
and Freedoms
, s 32(2).
[5]Canadian Charter of Rights and Freedoms, s
2.
[6]Canadian Charter of
Rights and Freedoms
, ss 3 -
5.
[7]Canadian Charter of
Rights and Freedoms
, s 6.
[8]Canadian Charter of Rights and Freedoms, ss 7 -
14.
[9]Canadian Charter of
Rights and Freedoms
, s
15.
[10]Canadian Charter of
Rights and Freedoms
, ss 16 -
22.
[11]Canadian Charter of
Rights and Freedoms
, s
23.
[12]Canadian Charter of
Rights and Freedoms,
s 15; Eldridge v Attorney-General of British
Columbia
[1997] 3 SCR
624.
[13]Canadian Charter of
Rights and Freedoms
, s
1.
[14]Canadian Charter of
Rights and Freedoms,
s
33(1).
[15]Canadian Charter
of Rights and Freedoms
, s
33(3).
[16]Canadian Charter
of Rights and Freedoms
, s
33(4).
[17]Canadian Charter
of Rights and Freedoms
, s
32(1)(a).
[18]Canadian
Charter of Rights and Freedoms
, s
32(1)(b).
[19] See R v
Oakes
[1986] 1 SCR 103.
[20]Canadian Charter of Rights and Freedoms, s
24(1).
[21]New Zealand Bill
of Rights Act 1990
(NZ), s
1(2).
[22]New Zealand Bill of
Rights Act 1990
(NZ), ss 8 -
11.
[23]New Zealand Bill of
Rights Act 1990
(NZ), ss 12 -
18.
[24]New Zealand Bill of
Rights Act 1990
(NZ), ss 19 -
20.
[25]New Zealand Bill of
Rights Act 1990
(NZ), ss 21 -
27.
[26]New Zealand Bill of
Rights Act 1990
(NZ), s
5.
[27]New Zealand Bill of
Rights Act 1990
(NZ), s
7.
[28] New Zealand Ministry of
Justice, The Guidelines on the New Zealand Bill of Rights Act 1990: A Guide
to the Rights and Freedoms in the Bill of Rights Act for the Public Sector
(2004). At http://www.justice.govt.nz/pubs/reports/2004/bill-of-rights-guidelines/index.html (viewed 28 May 2009).
[29] New
Zealand Ministry of Justice, above, pt
I.
[30]Simpson v Attorney
General (Baigent’s Case)
[1994] 3 NZLR
667.
[31] Baigent’s Case,
above, p 676.
[32] New Zealand
Ministry of Justice, note 28, pt
IV.
[33]Constitution of the
Republic of South Africa, 1996
, s
9.
[34]Constitution of the
Republic of South Africa, 1996
, ss 26(1), 26(3), 27(1),
27(3).
[35]Constitution of
the Republic of South Africa, 1996
, s
28.
[36]Constitution of the
Republic of South Africa, 1996
, ss 32, 33,
34.
[37]Constitution of the
Republic of South Africa, 1996
, s
24.
[38]Constitution of the
Republic of South Africa, 1996
, s 23. The right to form and join a trade
union is also a civil and political right – see ICCPR, note 2, art 22.
[39]Constitution of the
Republic of South Africa, 1996,
s
26(1).
[40]Constitution of
the Republic of South Africa, 1996
, s
27(1).
[41]Constitution of
the Republic of South Africa, 1996
, s
29(1).
[42]Convention on the
Rights of the Child
(CRC), 1989. At http://www.unhchr.ch/html/menu3/b/k2crc.htm (viewed 29 May 2009).
[43]Constitution of the Republic of South Africa, 1996, s
28.
[44]Constitution of the
Republic of South Africa, 1996
, s
32(1).
[45]Constitution of
the Republic of South Africa, 1996
, s
32(2).
[46] UN Human Rights
Committee, Gauthier v Canada, Communication No. 633/1995, UN Doc
CCPR/C/65/D/633/1995 (1995), at http://www1.umn.edu/humanrts/undocs/session65/view633.htm (viewed 22 May 2009); Inter-American Commission on Human Rights, Reyes v
Chile
, Case 12.108, Report No. 60/03, at http://www1.umn.edu/humanrts/cases/60-03.html#1 (viewed 22 May 2009). See also G Malinverni, ‘Freedom of Information in
the European Convention on Human Rights and in the International Covenant on
Civil and Political Rights’ (1983) 4 Human Rights Law Journal 443.
[47]Constitution of the
Republic of South Africa, 1996
, s
33.
[48]Constitution of the
Republic of South Africa, 1996
, s
34.
[49]Constitution of the
Republic of South Africa, 1996
, s
24(a).
[50]Constitution of
the Republic of South Africa, 1996
, s
24(b).
[51]Constitution of
the Republic of South Africa, 1996
, ss 36(1)(a) -
36(1)(e).
[52]Constitution of
the Republic of South Africa, 1996
, ss 37(1),
37(4).
[53] Section 37(5)
contains a table of non-derogable rights which sets out in further detail the
extent to which each of those rights is protected from derogation. Sections
37(6) and 37(7) provide further procedural safeguards in respect of persons
detained without trial during a state of
emergency.
[54]Constitution
of the Republic of South Africa, 1996
, s
7(2).
[55]Constitution of the
Republic of South Africa, 1996
, s
8(1).
[56]Constitution of the
Republic of South Africa, 1996
, s
39(1)(a).
[57]Constitution of
the Republic of South Africa, 1996
, s
39(1)(b).
[58]Constitution of
the Republic of South Africa, 1996
, s
39(1)(c).
[59]Constitution of
the Republic of South Africa, 1996
, s
39(2).
[60]Constitution of
the Republic of South Africa, 1996
, ss 26(2),
27(2).
[61]Constitution of
the Republic of South Africa, 1996
, s
38.
[62]Constitution of the
Republic of South Africa, 1996
, s
38.
[63]Convention for the
Protection of Human Rights and Fundamental Freedoms
, 1950 (European
Convention on Human Rights). At http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf (viewed at 29 May 2009).
[64] United Kingdom Government White Paper, Rights Brought Home: The Human Rights
Bill
(1997), para 1.14.
[65] Article 41 of the European Convention on Human Rights states that: ‘If the
Court finds that there has been a violation of the Convention or the protocols
thereto, and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured
party.’
[66]Protocol to
the Convention for the Protection of Human Rights and Fundamental Freedoms
,
1952 (Protocol 1 to the European Convention on Human Rights). At http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf (viewed at 29 May 2009).
[67]Protocol No. 6 to the Convention for the Protection of Human Rights and
Fundamental Freedoms concerning the abolition of the death penalty
, 1983. At http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf (viewed at 29 May 2009).
[68] These rights are to be read with articles 16 - 18 of the European Convention on
Human Rights: Human Rights Act 1998 (UK), s 1.
[69] See further J Wadham et al, Blackstone’s Guide to the Human Rights Act 1998 (4th ed,
2007), paras 2.31 - 2.40.
[70] See European Convention on Human Rights, note 63, arts 3,
4(1).
[71] Wadham et al, note 69, para
2.34.
[72] European Convention on
Human Rights, note 63, art
5.
[73] European Convention on
Human Rights, note 63, arts 4(2),
4(3).
[74] European Convention on
Human Rights, note 63, art
7.
[75] European Convention on
Human Rights, note 63, art
12.
[76] Protocol 1 to the
European Convention on Human Rights, note 66, art
2.
[77] Wadham et al, note 69, para
2.37.
[78] See Kroon v
Netherlands
(1994) 19 EHRR 263; Soering v United Kingdom (1989) 11
EHRR 439.
[79] European
Convention on Human Rights, note 63,
art 8.
[80] European Convention
on Human Rights, note 63, art
9.
[81] European Convention on
Human Rights, note 63, art
10.
[82] European Convention on
Human Rights, note 63, art
11.
[83] Protocol 1 to the
European Convention on Human Rights, note 66, art
1.
[84]Human Rights Act
1998
(UK), s 19(1).
[85]Human Rights Act 1998 (UK), s
19(2).
[86] Wadham et al, note 69, para.
3.11.
[87]Human Rights Act
1998
(UK), s 6(1).
[88]Human Rights Act 1998 (UK), s
6(2)(a).
[89]Human Rights Act
1998
(UK), s 6(3).
[90]Human Rights Act 1998 (UK), ss 6(3)(b),
6(5).
[91]Human Rights Act
1998
(UK), s 3(1).
[92]Human Rights Act 1998 (UK), s
2(1).
[93]Human Rights Act
1998
(UK), s 7(1).
[94]Human Rights Act 1998 (UK), s
8(1).
[95]Human Rights Act
1998
(UK), ss 8(2),
8(3).
[96] See R v A (No.
2)
[2001] UKHL 25, (2002) 1 AC 45, para 44 (Lord
Steyn).
[97]Human Rights Act
1998
(UK), s 10.
[98] ACT
Bill of Rights Consultative Committee, Towards an ACT Human Rights Act:
Report of the ACT Bill of Rights Consultative Committee
(2003), pp 6, 109.
At http://www.jcs.act.gov.au/prd/rights/documents/report/BORreport.pdf (viewed 9 June 2009).
[99] ACT
Department of Justice and Community Safety, Human Rights Act 2004:
Twelve-Month Review – Report
(2006), p 49. At http://www.jcs.act.gov.au/HumanRightsAct/Publications/twelve_month_review.pdf (viewed 28 May 2009).
[100]Human Rights Act 2004 (ACT), s
7.
[101]Human Rights Act
2004
(ACT), s 28(1).
[102]Human Rights Act 2004 (ACT), s
28(2).
[103]Human Rights
Act 2004
(ACT), s
9(2).
[104]Human Rights Act
2004
(ACT), s 19(2).
[105]Human Rights Act 2004 (ACT), s
37.
[106]Human Rights Act
2004
(ACT), s 38.
[107]Human Rights Act 2004 (ACT), s
39.
[108]Human Rights Act
2004
(ACT), ss 40(1)(a) -
40(1)(f).
[109]Human Rights
Act 2004
(ACT), s
40(1)(g).
[110]Human Rights
Act 2004
(ACT), s
40A.
[111]Human Rights Act
2004
(ACT), s 40(2).
[112]Human Rights Act 2004 (ACT), s
40D.
[113]Human Rights Act
2004
(ACT), s 40B(1).
[114]Human Rights Act 2004 (ACT), s
40B(2).
[115]Human Rights
Act 2004
(ACT), s 30.
[116]Human Rights Act 2004 (ACT), s
31.
[117]Human Rights Act
2004
(ACT), s 32.
[118] Human Rights Law Resource Centre, note 1, p
115.
[119]Human Rights Act
2004
(ACT), s 32(4).
[120]Human Rights Act 2004 (ACT), s 33.
[121]Human Rights Act
2004
(ACT), s 40C.
[122]Charter of Human Rights and Responsibilities Act 2006 (Vic), s 2(2).
[123]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
19(1).
[124]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
19(2).
[125]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
20.
[126]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
44.
[127]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s 5.
[128]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
7(2).
[129]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
18(2).
[130]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
28.
[131]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
29.
[132]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
30.
[133]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
31(1).
[134]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
31(6).
[135]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
31(4).
[136]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
31(3).
[137]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
31(7).
[138]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
31(8).
[139]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
48.
[140]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
4(1).
[141]Charter of Human
Rights and Responsibilities Act 2006
(Vic), ss 4(2),
4(3).
[142]Charter of Human
Rights and Responsibilities Act 2006
(Vic), ss 4(1)(i),
4(1)(j).
[143]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
38(1).
[144]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
38(2).
[145]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s 38(4).
[146]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
32(1).
[147]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
32(2).
[148]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
36(2).
[149] Human Rights Law
Resource Centre, note 1, p
115.
[150]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s 36(5).
[151]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
36(6).
[152]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
36(7).
[153]Charter of
Human Rights and Responsibilities Act 2006
(Vic), s
37.
[154]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s 39(1).
[155]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s 39(3).