Activist Rights

The Charter

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In the Victorian Charter of Human Rights and Responsibilities Act (2006) (‘the Charter’) our rights to protest are protected under two main sections. The rights to:

  1. Freedom of expression, and
  2. Peaceful assembly and freedom of association.

But there are other sections that may be relevant to activism:

  • Right to life
  • Protection from torture and cruel, inhuman or degrading treatment
  • Freedom of movement
  • Privacy and reputation
  • Freedom of thought, conscience, religion and belief
  • Taking part in public life
  • Property rights
  • Right to liberty and security of person
  • Humane treatment when deprived of liberty

Charter rights come into play in three situations.

Firstly, if the party you believe is infringing your rights is a public authority (e.g.: the police or a government department or agency). Under the Charter, it is unlawful for a public authority to:

  • act in a way that is incompatible (against) with these rights, OR
  • in making a decision it failed to give proper consideration to these rights.

Secondly, when legislation is being interpreted it should (as much as is possible) be interpreted consistently with these rights.

Lastly, because the Charter is a piece of legislation it will override inconsistent common law. Some police powers come from the common law – if they are inconsistent with the Charter, what is stated in the Charter will succeed.

Visit the Victoria Law Foundation of Victoria Legal Aid for more information about the hierarchy of laws.

Our charter rights can be lawfully broken 

The Charter recognises and anticipates the limitation of these rights under s 7(2) – that is, when it’s okay for these rights to be broken (breached/infringed). Such limitations are only allowed when it is demonstrably justifiable in a free and democratic society and must be strictly proportionate to the end sought to be achieved by the limitation.

In other words, these rights can only be broken when it can be proven that doing so is reasonable and necessary to why they are being broken.

Can we actually use the Charter in court and win?

Because our charter rights can be broken, some people say that it is not an important piece of legislation. While our charter rights could be stronger and better protected, it is nonetheless extremely important for safeguarding our rights – and in some cases, has been a critical factor in their success.

For examples of how the Charter has been used in court see:

Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur[2016] VSCA 343 (where children were being held in an adult prison)

Mark Rowson v Department of Justice, Corrections Victoria and the State of Victoria [2020] VSC 236 (people in prison might have a case for an injunction to restrain a prison from acting unlawfully in their duty of care – in the context of preventing the spread of COVID19 in prisons)

Cemino v Cannan and Ors [2018] VSC 535 (courts must consider the distinct cultural rights of Aboriginal persons in deciding whether they can access the Koori Court) 

PBU & NJE v Mental Health Tribunal [2018] VSC 564 (people with mental illness cannot be deprived of their right to exercise legal capacity)

Kerrison v Melbourne City Council[2014] FCAFC 130 (occupy Melbourne protest and the removal of a tent worn as clothing and as part of a political message)

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