The Essay On Charter Of Human Rights And Responsibilities Act 2006 (Vic) And Its Impact On Public Authorities Is Significant.

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Disucss about the Charter Of Human Rights And Responsibilities Act.

Date: 12.05.2018

To: Elizabeth Rossi

From: Name of Student

Advice based on the prescriptions of Charter of Human Rights and Responsibilities Act 2006 (Vic)

The Youth Parole Board was not in breach of its obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic) in cancelling Jamie’s period of parole in lieu of Section 4 (1) (k) of the Charter of Human Rights and Responsibilities Act 2006 (Vic)[1].

The obligations that the Member for Northcote has under the Charter of Human Rights and Responsibilities Act 2006 (Vic) when amending the Summary Offences Act 1966 (Vic) are the obligations defined under Section 28 of the Act[2]. If these obligations are not adhered to the act would not have any effect within the jurisdiction of Victoria as per Section 29 of the act.

Section 4 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) defines public authorities and under the provisions of subsection (c) Prison Services Pty Ltd would be considered a public authority[3].

Joe Smith is in breach of the provisions of Charter of Human Rights and Responsibilities Act 2006 (Vic) as provided for in Section 38 and Section 7 (2).

In case the breaches against Jamie and Alisha under the Charter of Human Rights and Responsibilities Act 2006 (Vic) is established they would have the right to pursue legal remedies for the same as prescribed in Section 39 of the act[4].

Jamie was released on parole during the time of the occurrence of the incident. Jamie was granted parole by virtue of Section 458 of the Children, Youth and Families Act 2005 (Vic) by the Youth Parole Board[5]. It has been clarified in Section 5 (c) of the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013 that the Youth Parole Board defined in Section 442 of the Children, Youth and Families Act 2005 (Vic) would not be considered a public authority for the purposes of this the Charter of Human Rights and Responsibilities Act 2006 (Vic)[6]. Section 4 (1) (k) of the of Human Rights and Responsibilities Act 2006 (Vic) further consolidates this provision by stating that bodies defined in the abovementioned regulations would not be considered public authorities for the purposes of this act. As the Youth Parole Board is not a public authority it is not subject to the obligations defined in Section 38 of the Act. Thus the Youth Parole Board is not in breach of any obligation under the Charter of Human Rights and Responsibilities Act 2006 (Vic) as it does not fall within the ambit of the operation of the act[7].

Joe Smith and his Breach of the Provisions of the Act

A member of the legislative assembly who enacts laws within the jurisdiction of Victoria must adhere to the provisions and prescriptions of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This act protects the fundamental human rights of all persons within the jurisdiction of Victoria and describes circumstances where these guaranteed rights maybe restricted by public authorities. As provided for in Section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) a statement of compatibility must be issued to ensure that the implications of the act are compatible with the provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This means that the fundamental human rights of all individuals subject to the act is safeguarded[8]. If the enactment of the act would bring inconsistent provisions into force the statement of compatibility would state the same and explain the extent to which the provisions are in contravention of the Charter of Human Rights and Responsibilities Act 2006 (Vic)[9]. Thus, if the Member for Northcote wants to amend the Summary Offences Act 1966 (Vic) these prescriptions of Section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) would have to be considered when formulating the provisions of the amendment. The provisions which are inconsistent with the prescriptions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) would have no effect in Victoria and would thus not have the force of law even if enacted. This position has been clarified in Section 29 of the Charter of Human Rights and Responsibilities Act 2006 (Vic)[10].

The Charter of Human Rights and Responsibilities Act 2006 (Vic) defines the authorities that fall under its ambit and these are provided for in Section 4 of the act. It has been stated in Section 4 (1) (c) of the act that an entity that is acting as a public authority on behalf of the State or a public authority it would fall under the ambit of the act and would thus be bound by its provisions[11]. It has been stated in the facts of the case that Prison Services Pty Ltd is contractually employed by the Department of Justice to manage and regulate Woodend Correctional Centre. Thus it is an entity that is carrying out prison management on behalf of the Department of Justice under a valid contract and thus would be covered by the act by virtue of the provisions of Section 4 (1) (c) of the Act[12].

Legal Remedies Available for Breach of Human Rights by a Public Authority

Joe Smith is the General Manager of Woodend Correctional Centre. It has been established the company that own Woodend Correctional Centre is acting as a public authority and is thus covered by the Charter of Human Rights and Responsibilities Act 2006 (Vic). Joe Smith would not give inmates in Woodend Correctional Centre an opportunity to choose their healthcare professionals and would not allow written correspondence for inmates unless with recognized persons. The reason for both these breaches was that these would allow room for security breaches which would be detrimental for the institution.  However as defined in Section 7 (2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) any restriction on a human rights must be demonstrably justifiable and must adhere to human dignity, equality and freedom and other factors prescribed in this provision[13]. The restrictions placed by Joe Smith are largely based on probabilities and assumptions and cannot be demonstrated in practicality. Furthermore as defined by the provisions of Section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) public authorities must consider all human rights prescribed under the act when determining a decision or enacting a new legislation. Thus Joe Smith in his decision to restrict these human rights would have to consider if he is infringing any provision of the act. Since he is in breach of Section 7 (2) of the act he is resultantly in breach of his obligations under Section 38 of the act[14]. Thus Joe Smith is in breach of Section 7 (2) and Section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

As defined above Alisha’s human rights as prescribed by the Charter of Human Rights and Responsibilities Act 2006 (Vic) have been breached by the acts of Joe Smith. Jamie’s right could also be breached in a similar manner. In case of such a breach of the provisions of Charter of Human Rights and Responsibilities Act 2006 (Vic) the persons subject to such a breach can legally pursue the public authority committing the breach as prescribed by Section 39 of the act[15]. This is thus the available remedy for a breach of human rights by a public authority within the jurisdiction of Victoria[16].

Clapham, Andrew. Human rights: a very short introduction. OUP Oxford, 2015.

Donnelly, Jack, and Daniel Whelan. International human rights. Routledge, 2018.

Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013.

Conclusion

Freeman, Michael. Human rights. John Wiley & Sons, 2017.

Samek, Toni. Librarianship and human rights: A twenty-first century guide. Elsevier, 2014.

Shelton, Dinah. Remedies in international human rights law. Oxford University Press, USA, 2015.

Smith, Rhona. International Human Rights Law. Oxford University Press, 2018.

Smith, Rhona. Texts and materials on international human rights. Routledge-Cavendish, 2013.

Tomuschat, Christian. Human rights: between idealism and realism. OUP Oxford, 2014.

This is a secondary source of law as it is not a piece of legislation or any other similar form of primary source of law. Thus this is a derivative source of law as it documents case laws and legal principles as they are stated in legislations or precedents.

The book documents Human rights from a historical perspective and the evolution of principles of international human rights as developed through conventions and subsequent legislations. It further delves into the universality of human rights and defines their recognition as it is made in various jurisdictions. It thus provides a global perspective on the operation of human rights and thus provides an overview of the determination of infringement of such rights from a global perspective.

This is a secondary source of law as it contains case laws and legislations but expands on them explanatorily. This book focuses on the evolution of human rights in theory and covers the application of human rights conventions in Australia. The source further elaborates on breaches and remedies in the context of international human right and explains the legal stand of the same from an Australian perspective. The source also deals with norms and customs that have been involved in the development of human rights in the past and additionally defines practical remedies which may be incorporated into legislations to adequately compensate a person for a breach of human rights. The source also elaborates on examples of such breaches and how they may have been avoided.

This is a secondary source of law as only legislations, precedents and customs maybe considered primary sources of law. This source embodies a research into the framework of human rights legislations in the UK and Australia. The source also considers the universality of human rights and the application of such rights in places where they are not made specifically available. Human rights law also has an aspect of reasonableness which is applicable when restricting such right though a legal process such as imprisonment. This defined degree of reasonableness must be adhered to any form of restriction of human rights and it must also be ensured that such a right is not destroyed or eliminated in the process. This source elaborates on this degree of reasonableness to be observed and the rationale behind the same.

Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013.

Charter of Human Rights and Responsibilities Act 2006 (Vic).

Children, Youth and Families Act 2005 (Vic).

Summary Offences Act 1966 (Vic).

Tomuschat, Christian. Human rights: between idealism and realism. OUP Oxford, 2014.

Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013.

Smith, Rhona. International Human Rights Law. Oxford University Press, 2018.

[1] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[2] Summary Offences Act 1966 (Vic).

[3] Tomuschat, Christian. Human rights: between idealism and realism. OUP Oxford, 2014.

[4] Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013.

[5] Children, Youth and Families Act 2005 (Vic).

[6] Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013.

[7] Freeman, Michael. Human rights. John Wiley & Sons, 2017.

[8] Donnelly, Jack, and Daniel Whelan. International human rights. Routledge, 2018.

[9] Smith, Rhona. International Human Rights Law. Oxford University Press, 2018.

[10] Smith, Rhona. Texts and materials on international human rights. Routledge-Cavendish, 2013.

[11] Samek, Toni. Librarianship and human rights: A twenty-first century guide. Elsevier, 2014.

[12] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[13] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[14] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[15] Shelton, Dinah. Remedies in international human rights law. Oxford University Press, USA, 2015.

[16] Clapham, Andrew. Human rights: a very short introduction. OUP Oxford, 2015.