The Victorian Charter’s relevance to Aboriginal Community Controlled Organisations Emily Howie Lawyer Human Rights Law Resource Centre Ltd

Outline 1. Relevant rights 2. Are Aboriginal community controlled organisations also duty bearers? 3. Moot points – incorporate the Charter into your organisation’s processes

The Victorian Charter Legislation since 1 January 2008 All human beings have rights Civil and political rights Obligations on 3 arms of government

The Charter Preamble This Charter is founded on the following principles – … human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia's first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters. Legal effect - mainly symbolic

Cultural rights – 19(2) Aboriginal persons have distinct cultural rights which include:  the enjoyment of identity and culture,  to maintain and use language;  to maintain kinship ties; and  to maintain “distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs’.

Cultural rights - ICCPR Understanding cultural rights in the Charter  Minority rights are separate from and in addition to general rights  States obligation to take ‘positive measures …’  Art 27 ‘directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole’ (HRC, General Comment No 23: The Rights of Minorities (1994) discussing article 27 of the ICCPR)

Equality and non-discrimination (s 8) EO Act definition and grounds (ie race) But broader? Protected areas ‘enjoyment of human rights’ ‘Every person is equal before the law’ substantive equality Lifestyle Communities

Public authorities (s 38) Public authorities must: (a) act compatibly; and (b) give proper consideration to a relevant human right. Unless required to do otherwise by another law

Who is a public authority? Core and functional distinction includes: an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise)

Public authority? What does it mean? No easy answer Must be given a wide and generous interpretation which is consistent with the central purpose of the Charter to protect and promote human rights.

Is it a public authority? Q1: Are the functions ‘of a public nature’?  Function conferred under statute  Function ‘generally identified with government’  Publicly funded  The nature of the functions (not the entity exercising those functions)  Functions exercised ‘in the public interest’?  Functions to care and protect vulnerable and disadvantaged people Do Aboriginal community controlled organisations exercise ‘functions of a public nature’?

Is it a public authority? Q2: Are the functions being exercised on behalf of the State or a public authority?  State = Victoria  ‘On behalf of’ - Relationships between entities and the government do not need to be formal  Of particular relevance is whether there is some arrangement under which the entity, in exercising the functions, is acting as their representative or for their purposes in the practical sense Do you act ‘on behalf of’ the State?

Case study Would this body be a public authority?  provides of transitional housing to those at risk of homelessness  private company  primary function is the allocation and management of housing stocks  service agreement with the Victorian Government  receive government funding  exercise delegated statutory powers under s 35 of the Housing Act 1983

Metro West v Sudi Answer: Yes government responsibility for the care and protection of vulnerable and disadvantaged people, especially those who are at risk of homelessness a service agreement between MW and the government where the government contracted out the performance of its obligations that service agreement included performance standards and obligations upon Metro West to comply with the government’s standards and policies in providing the services Metro West received ‘block’ funding from the government to perform these servicesMetro West exercised delegated statutory functions

Apply the Charter Anyway Your organisation may or may not have obligations in some of its activities Apply a human rights-based approach anyway  Participation in decision-making by people affected  Consider the needs of individuals – beware of blanket policies  Create processes to consider Charter rights