Home › Principles of Public Law › Part 5 · Protecting rights in Australia

Part 5 · Protecting rights in Australia

Australia has no national bill of rights. What it has is a patchwork, and inside the patchwork one working machine: s 38(1) of the Victorian Charter. The exam tests the machine, and this module teaches the sequence for running it.

Provisions and cases at a glance

Authority	In a line
Charter s 4	Public authority: core (public officials, Victoria Police, councils, Ministers) or functional (functions of a public nature exercised on behalf of the State), but not Parliament
Charter s 6	Only human beings hold Charter rights, and all persons in Victoria hold them, visitors included; corporations hold none
Charter s 38(1)	Two independent limbs: acting incompatibly with a human right, and failing to give proper consideration to a relevant right when making a decision
HJ v IBAC (2021) [155]	The four-step proper consideration test the course calls the HJ test
Thompson v Minogue (2021)	The vehicle case: random breath testing justified, the urinalysis and strip-search direction not; the authority bears the onus under s 7(2)
Charter s 7(2)	Limits must be lawful, reasonable and demonstrably justified, weighing five factors ending in any less restrictive means reasonably available
Charter s 39	A Charter claim piggybacks on another cause of action, and damages are excluded (s 39(3))
Charter ss 32, 36	Interpret compatibly so far as possible consistently with purpose (Momcilovic), then declare inconsistency, without touching validity
Coco v The Queen (1994)	The principle of legality: only unmistakable and unambiguous language abrogates fundamental rights

The federal patchwork, briefly

Start with the framing question the course itself asks: in the absence of a bill of rights, how do Australia's domestic institutions give effect to our international human rights obligations? At the federal level the answer is a patchwork. The Constitution offers a few express protections (freedom of religion, trial by jury, a partial right to vote) and a few implied ones, listed in this subject rather than analysed. Statutes protect specific interests, anti-discrimination legislation chief among them, but there is no federal statutory bill of rights. The common law contributes native title (Mabo) and the principle of legality (Coco; Evans), though Parliament has found effective ways to rebut the principle. And the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) adds scrutiny without rights: Bills carry statements of compatibility and a Joint Parliamentary Committee reports on them, but a statement binds no court or tribunal (s 8(4)) and its absence invalidates nothing (s 8(5)).

RULE. arrowFederal rights protection is interpretive and political, not entrenched. Legality yields to clear words, and a statement of compatibility neither binds a court nor conditions validity. For legality in depth, see The rule of law.

The ACT and Queensland have statutory human rights Acts, and Victoria has the Charter of Human Rights and Responsibilities Act 2006. The Charter is where this module lives, and within the Charter the course is explicit: s 38 is the focus.

The one skeleton to memorise

The course gives exactly one hypothetical structure for this half of the subject: thresholds, procedural limb, substantive limb. The same "Applying s 38(1)" checklist appears twice in the materials, which is the clearest signal of what the exam will ask. The vehicle for the whole analysis is Thompson v Minogue: a prisoner at Barwon Prison challenged random breath testing and a direction requiring urinalysis preceded by a strip search. The case is taught for its method, not for the rights, so learn the sequence rather than the privacy and dignity doctrine.

RULE. staircaseEvery Charter problem climbs the same stairs: thresholds (ss 4 and 39), then the procedural limb, then the substantive limb, then a conclusion that answers the question. The order is part of the method.

Threshold issues

Is there a public authority? (s 4)

The Charter's conduct obligation binds public authorities only, so identification comes first. Core public authorities include public officials (essentially public service employees), Victoria Police, local government councillors and Ministers. Functional public authorities are entities established by statute with functions of a public nature (public schools, public hospitals, VicRoads) and entities whose functions include functions of a public nature when exercising them on behalf of the State or another public authority: s 4(1)(c), with s 4(2) helping to identify what counts as public. That functional limb is the one the exam bends: a private contractor delivering a government program is caught while it does so. Parliament, by contrast, is not a public authority, and s 6(2)(a) does not touch its law-making power.

RULE. keyringAn entity is a public authority if any key turns: core status (official, police, council, Minister), statutory establishment with public functions, or public functions exercised on behalf of the State (s 4). But not Parliament.

Who holds the rights? (s 6)

Only persons have Charter rights, and persons are human beings (s 3). All persons in Victoria qualify, citizens or not, residents or visitors. Corporations hold no Charter rights at all. The examiner's favourite inversion is a company invoking the Charter while a visitor's claim is doubted: the visitor wins, the company loses, every time.

Is the claim piggybacking? (s 39)

A breach of the Charter does not, on its own, provide a right to a remedy. The applicant needs a cause of action that exists otherwise than because of the Charter, and the Charter argument rides on it. This is why the course calls s 39 the piggyback provision. Minogue satisfied it by piggybacking on judicial review proceedings under the Corrections Act 1986. Establishing a breach never yields damages (s 39(3)): the practical remedy is declaratory.

RULE. arrowNo independent cause of action, no Charter claim (s 39). And no damages for the breach even when the claim succeeds (s 39(3)).

Trap. The freestanding Charter claim. Answers that let an applicant sue on the Charter alone, or recover damages for the breach, have failed the second threshold before the interesting law begins. State the piggyback, name the host claim, then move on.

The procedural limb: proper consideration

Section 38(1) makes it unlawful for a public authority to act incompatibly with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. The procedural limb applies to decision-making. Its content is the four-step test from Thompson v Minogue [83], citing HJ v IBAC [155], which the course calls the HJ test. The decision-maker must: 1. understand in general terms which rights of the affected person may be relevant, and whether and how they will be interfered with; 2. seriously turn their mind to the possible impact of the decision on the person's human rights and the implications for them; 3. identify the countervailing interests or obligations; and 4. balance the competing private and public interests as part of the exercise of justification.

RULE. checklistProper consideration has four numbered steps (the HJ test), and every step must be met. Name the test, number the steps, run each on the facts.

The glosses from Castles, applied in Thompson, cut in both directions and the worked exam answers argue both. Against over-reading: human rights consideration is part of decision-making at all levels of the public sector, it is not a sophisticated legal exercise or over-zealous scrutiny, and the decision-maker need not recite the s 7(2) factors. Against under-reading: the consideration must be substantive and not simply tokenistic. The court does not defer to the authority's view of the matter, though it may take that view into account [92]. So a quick oral decision made with legal advice can pass, and a box-ticking rights memo attached to a predetermined decision can fail.

Trap. Two opposite failure modes. Demanding a written recitation of s 7(2) from a busy decision-maker misreads the standard one way; accepting a template memo as proper consideration misreads it the other. Present the glosses as a tension and argue the side the facts support.

The substantive limb: compatibility and s 7(2)

The substantive limb applies to acts. Thompson [96] gives it three steps: is the relevant human right engaged; if so, has the authority placed a limitation on it; if so, is the limitation lawful, reasonable and demonstrably justified under s 7(2). The court undertakes an objective assessment of the act, its factual and evidentiary basis and the competing considerations. If the limitation is not justified, the conduct breaches s 38(1) because it is incompatible with the right.

Mention the onus, because the course repeats it in three separate decks. The person alleging the limitation must establish that their rights have been engaged and limited. Once a limitation is established, the onus shifts to the public authority to justify it [48], [74]. The standard is stringent [72], indeed a heightened standard of justification [97].

RULE. arrowThe applicant proves engagement and limitation; the authority then bears the onus of demonstrable justification under s 7(2). An answer that makes the applicant justify the limit has the structure backwards.

Section 7(2) supplies the factors: (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose. Factor (e) is where cases are decided. If the authority claims there is no less restrictive means, that claim must be tested, and the court may reject the authority's evidence [77]. Thompson shows the whole machine at work: random breath testing was justified by the drug-free prison purpose, but the urinalysis direction with its strip-search add-on was not, because a strong purpose cannot carry a poorly tailored measure and gentler means were available.

RULE. compassSection 7(2) is one standard read through five factors, none decisive alone, but the needle usually settles on (e): a blanket coercive measure fails where less restrictive means were reasonably available (Thompson v Minogue).

The s 38(2) exception

Section 38(1) does not apply if the authority could not reasonably have acted differently or made a different decision because of a statutory provision. This is a narrow statutory-compulsion exception, not a general reasonableness defence, and discretionary powers are not saved by it. The worked exam answers dispose of it in a single line, usually because the power was discretionary, so the authority could have acted differently.

RULE. twistSection 38(1) applies unless statute left the authority no reasonable alternative (s 38(2)). The authority relying on the exception must show the compulsion; a choice it merely preferred does not untwist the rule.

Interpretation and declaration: ss 32 and 36, briefly

Two further provisions complete the machinery and need only a paragraph each in an answer. Section 32(1) requires that, so far as it is possible to do so consistently with their purpose, all statutory provisions be interpreted compatibly with human rights. Its effect is to extend the principle of legality to the Charter's catalogue of rights (Momcilovic [51], French CJ): an ordinary interpretive principle, not a UK-style power to rewrite, and the detail is deferred to Administrative Law. Where no compatible interpretation is possible, the Supreme Court may make a declaration of inconsistent interpretation under s 36. The declaration does not affect the validity of the provision or the parties' rights; the Minister must respond. Behind both sit s 28, requiring statements of compatibility for Bills (non-compliance does not affect validity), and s 31, letting Parliament override the Charter expressly, intended only for exceptional circumstances (s 31(4)).

Applying s 38(1)

Attack plan. The course's own checklist, taught twice, verbatim in structure. 1. Thresholds: is there a public authority (s 4)? Is the Charter claim piggybacking off another cause of action (s 39)? Dispose of s 38(2) if the facts raise it. 2. Procedural limb: state and apply the four steps of the HJ test [83]. 3. Substantive limb: mention the onus [96], identify the Part 2 rights engaged on the facts, and determine whether the limitations are demonstrably justified under s 7(2), the authority bearing the onus, factor (e) doing the deciding. 4. Conclude: ANSWER THE QUESTION, and remember that either limb alone breaches s 38(1), and that the authority can win.

Trap. Collapsing the limbs. A decision can be substantively compatible yet unlawful for want of proper consideration, and an act can be incompatible even after a careful decision process. A script that merges the two into one compatibility question loses the Thompson point, and the marks that go with it.

Worked example

Under the Regulation of Political Protests Act 2022 (Vic), the Chief Commissioner of Police may disperse an assembly that "obstructs public amenity". After a five-minute phone call with police counsel, the Commissioner orders the immediate dispersal of a peaceful overnight protest in the Botanic Gardens. New South Wales manages identical protests through a permit-and-conditions system. Has the Commissioner breached s 38(1)?

A Pass answer says. The protesters have rights to expression and assembly, and dispersing them limits those rights. The limit is not justified because the protest was peaceful, so s 38 is breached. This spots the rights, but it never establishes the thresholds, never separates the limbs, never mentions the onus, and treats justification as an impression rather than a s 7(2) analysis, so nothing in it can earn the method marks.

An H1 answer says. Victoria Police is a core public authority (s 4), and the claim proceeds on the footing that dispersal can be challenged by judicial review, satisfying the s 39 piggyback; s 38(2) does not apply because the power is discretionary. On the procedural limb, the four HJ steps are run against the phone call: a five-minute oral decision taken with legal advice can be proper consideration, since the exercise is not a sophisticated legal one and no s 7(2) recitation is required, provided the Commissioner seriously turned his mind to the protesters' rights and balanced the countervailing interests; the brevity invites, but does not prove, tokenism. On the substantive limb the protesters establish that expression (s 15) and peaceful assembly (s 16) are engaged and limited; the onus then shifts to the authority, and justification under s 7(2) founders on factor (e), because the NSW permit system shows a less restrictive means reasonably available, and the authority's bare assertion that dispersal was the only option must be tested and may be rejected [77]. Conclusion: the procedural limb is arguable either way, but the substantive limb is likely breached, and relief is declaratory only, there being no damages (s 39(3)).

Critical pitfalls and counter-arguments

Skipping the thresholds. The taught sequence starts at s 4 and s 39. An answer that opens with the rights has skipped the two issues the checklist puts first.
Reversing the onus. The applicant establishes engagement and limitation; the authority justifies. Getting this backwards forfeits the point the course flags with "mention the onus".
Reading s 38(2) as a reasonableness defence. It is a compulsion exception. If the power was discretionary, dispose of it in one line.
Giving the Charter to corporations. Persons are human beings (ss 3, 6). The visitor has rights; the company does not.
Drilling the rights instead of the method. The course says expressly that the Court's privacy and dignity analysis in Thompson is not the point. The sequence is.
Always letting the rights-holder win. The 2025 worked answer found no breach on either limb. Argue the authority's best case at full strength and let the facts decide.

Take it to the practice bank

The Principles of Public Law practice bank carries fifteen Protecting Rights problems, each with a realistic Pass answer, an H1 model and examiner's comments, and they track this module's sequence exactly. Problems 1 to 4 drill the thresholds (the contracted-out operator, suing Parliament, the corporation and the visitor, the piggyback and damages). Problems 5 to 7 drill the procedural limb and the independence of the two limbs. Problems 8 to 10 drill the onus and s 7(2), including the interstate comparator and the poorly tailored measure. Problem 11 takes s 38(2), Problem 12 takes ss 32 and 36, and Problems 13 to 15 cover legality and the federal patchwork.

Practice prompts

Write the threshold paragraph for Problem 1's contracted-out operator: s 4(1)(c) stated in one sentence, the functions-of-a-public-nature point applied in two, and the s 39 host claim named before you touch a single right.
Take Problems 5 and 6 together and write the procedural limb both ways: first defending the quick oral decision with the anti-over-zealous glosses, then attacking the box-ticking memo as tokenistic, citing the HJ steps by number in each.
Using Problem 9's blanket measure, write the s 7(2)(e) paragraph only: the onus on the authority, the interstate comparator deployed as the less restrictive means, and the authority's contrary evidence tested rather than accepted.

Check your understanding

Auto-marked drills. Answer, then see the authority in the feedback.