What is the Charter of Human Rights and Responsibilities?
The Charter of Human Rights and Responsibilities Act 2006 (the Charter) is a Victorian law that sets out the protected rights of all people in Victoria as well as the corresponding obligations on the Victorian Government.
Does the Charter apply to Information Sharing Entities (ISEs) when sharing information under the Schemes?
The Charter requires all public authorities, such as Victorian state and local government departments and agencies, and people or organisations delivering services on behalf of the Victorian Government to:
- give proper consideration to human rights before making a decision
- act compatibly with human rights.
Most ISEs are ‘public authorities’ because most ISEs are either Government agencies or are providing services on behalf of the Victorian Government. ISEs should therefore consider whether the Charter applies to each particular set of circumstances before requesting, sharing and/or using information under the Family Violence Information Sharing Scheme and the Child Information Sharing Scheme (the Schemes).
Organisations and services that are uncertain about whether the Charter applies to them should consult with their contracting agency.
When does the Charter apply to information sharing under the Schemes?
Generally, all ISEs who are public authorities must comply with their obligations under the Charter.
When the Charter does not apply
The Charter does not apply to the decisions and actions of ISEs who are required to share information under the Schemes, for example where an ISE is required under a Scheme to share information in response to a request that meets the threshold requirements of the relevant information sharing Scheme. In these circumstances, an exception under the Charter applies because there is no discretion under the Schemes to act differently or make a different decision.
If an ISE is required to share information under one of the Schemes and is concerned about the possible impact on a person’s Charter rights, the ISE should raise these concerns with the requesting ISE so that this can inform any decisions about the request and how the requesting entity uses the information.
When the Charter does apply
The Charter applies to all discretionary decisions and actions under the Schemes. ISEs must give proper consideration to relevant human rights and act compatibly with those rights whenever making decisions and exercising professional judgment when requesting information, voluntarily sharing and using information under the Schemes. This includes when deciding whether to request information, what information to request, who to request it from, and who to share with and the way in which the information is shared.
ISEs may be required to consider Charter rights in the following circumstances:
- deciding whether to request information, who to request the information from and the nature and scope of the request (both Schemes)
- sharing information voluntarily that would promote the wellbeing or safety of a child but could impact upon the wellbeing and safety of another child (CIS Scheme)
- sharing information voluntarily for a family violence assessment or protection purpose (FVIS Scheme)
- voluntarily sharing information about perpetrators with victim survivors to assist them to manage their safety (FVIS Scheme) or with a child or their parent to manage a risk to that child’s safety (CIS Scheme)
- seeking the views and wishes of a person regarding sharing their information (both Schemes)
- when making a decision that requires applying and interpreting a decision-making threshold in practice, such as considering whether it is ‘safe, appropriate and reasonable’ to seek a person’s views (both Schemes)
- engaging with clients or responding to complaints (both Schemes)
How do ISEs apply the Charter?
If you are an ISE who is also a public authority, you must consider the Charter when voluntarily disclosing information and using the information. ISEs must consider whether any human rights are affected by such decisions. If a decision is likely to limit a human right, the ISE must assess whether the limitation is reasonable and justified taking into account all relevant factors.
If an ISE is concerned that a decision or action might interfere with a person’s Charter rights they should conduct an assessment to determine, on a case-by-case basis, whether it is nevertheless reasonable and justified applying the Charter factors.
How does an ISE public authority properly consider Charter rights?
Step 1: Identify which Charter rights are relevant to the ISE decision or action
Step 2: Consider whether and how the ISE decision or action will interfere with the Charter rights
Step 3: Balance any other considerations that are relevant to the ISE decision or action.
How does an ISE public authority act compatibly with Charter rights?
Decisions and actions will be compatible with the Charter if they can be justified under the Charter. This is because Charter rights may only be limited where it is reasonable and justified taking into account all relevant factors. These factors can be found in section 7(2) of the Charter, and include:
- Nature of the right – what does the human right protect?
- Purpose of the limitation – what are you trying to achieve? Is it for a legitimate purpose?
- Extent of the limitation – how will your action impact on the person’s human rights?
- Relationship between limitation and purpose – will your actions achieve your objective (evidence base)?
- Less restrictive options – can you do anything that will achieve your objective which has a lesser impact on the person’s human rights?
Reviewed 12 December 2019