SCWK90055 Chap.6 International Law and the Victorian Charter
International Law and the Victorian Charter
This chapter follows human rights from international instruments into Victorian practice. It explains why a declaration such as the Universal Declaration is not binding while a treaty, convention or covenant is, and how derogation clauses let states suspend some obligations in an emergency.
It covers Australia's position as a party to the two 1966 covenants and other conventions, and the four places human rights live in Australian law: the Constitution, federal discrimination Acts, state and territory human rights Acts, and laws such as Victoria's equal opportunity legislation.
The centre of the chapter is Victoria’s human rights Charter: its 20 mostly civil and political rights, the obligations it places on Parliament, courts and public authorities, and how rights may be limited for clearly justified reasons. It closes with the two ways social workers use the Charter.
Because many students undertake placements in Victoria, the chapter treats the Charter as a practical standard that applies to everyday decisions in child protection, housing and disability services.
What this chapter covers
- 01
Declarations versus treaties
- 02
Derogation and non-derogable rights
- 03
The ICCPR and ICESCR
- 04
Four places rights live in Australian law
- 05
The Victorian Charter and public authorities
- 06
Advocacy and compliance with the Charter
Worked example · free
Is this organisation bound by the Charter?
- 1The organisation is funded to deliver a service for government, so it is likely a public authority.
- 1A public authority must act compatibly with Charter rights and consider them when making decisions.
- 1Rights engaged could include equality before the law and protection from arbitrary treatment of her privacy.
- 1The next step is to ask for reasons and, if needed, raise the Charter with the organisation or a human rights body.
Key terms
- Treaty
- A treaty is an international agreement, also called a convention, covenant or protocol, that binds the states that are parties to it.
- Derogation
- Derogation is a state's suspension of certain treaty obligations during a declared emergency.
- Victorian Charter
- The Victorian Charter is Victoria's 2006 human rights Act, which protects twenty mostly civil and political rights.
- Equal Opportunity Act
- The Equal Opportunity Act 2010 is the Victorian law that makes discrimination on protected attributes unlawful.
- Justified limitation
- A justified limitation is a restriction on a Charter right that a public authority can support with clear reasons.
International Law and the Victorian Charter FAQ
Is the Universal Declaration legally binding on Australia?
No. It is a declaration, a statement of principles states agree to work towards. Australia is bound by treaties it has joined, including the ICCPR and the ICESCR, its covenants on civil and political rights and on economic, social and cultural rights.
Does Australia have a bill of rights?
There is no national bill of rights. The Constitution protects a small number of rights, such as voting and freedom of religion, and human rights also appear in federal discrimination Acts and in the human rights Acts of Victoria, the ACT and Queensland.
Who counts as a public authority under the Victorian Charter?
State and local government, government agencies, and organisations that deliver services for government, including funded non-government services. They must act compatibly with Charter rights and consider them in decisions.
Does the Charter include a right to housing?
No. Its rights are mainly civil and political, consistent with the ICCPR. Housing is an economic and social right, although the Charter's protection of families and children can still support advocacy when a family faces eviction from funded housing.
Can a public authority ever limit a Charter right?
Yes, when it has clearly justified reasons. A police officer making an arrest limits liberty, for example, but must still treat the person humanely. The authority has to consider the right and be able to explain why the limit is necessary.
Assessment move
Start with the distinction between a declaration and a treaty, because it is the most common test item in this area. Learn the two covenants with their focus and the dates they were adopted and came into force. Draw the four places human rights appear in Australian law and add one example of each. For the Charter, learn a handful of its rights well, especially those met in practice, and the three bodies it binds.
Then practise deciding whether an organisation is a public authority and which rights a scenario engages. Remember that the Charter is used both to advocate and to check your own decisions.
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