Article by James Morgan-Payler and Elizabeth Bateman
While the Charter of Human Rights and Responsibilities Act
2006 (Vic) (Charter) commenced in full on 1
January 2008, its impact has, to date, been limited within the
private commercial sector. A number of commentators are of the view
that the Charter is a sleeping giant for private industries,
including the construction industry, and that companies need to
ensure that they understand its operation and how it may impact on
their business dealings in the future. As yet, only Victoria and
the ACT have gone down the path of a human rights charter, although
various bodies are pushing such legislation in other States and
The Charter establishes a framework for the protection and
promotion of certain civil and political human rights, such as the
right to liberty and property rights. Two examples of apparent
instances where the impact of the Charter could be extended to
those in the construction industry are as follows:
The Charter applies to "public authorities". The term
"public authorities" is very widely defined to include
entities whose functions include functions of a public nature, when
exercising those functions on behalf of the State or a public
authority (Public Authorities). These Public
Authorities are now expressly prevented from acting in a manner
that is incompatible with the human rights protected by the
Charter. Accordingly, entities which contract directly with a
Public Authority, and in so doing are required to exercise
functions that are of a 'public nature', will need to
ensure that they comply with the Charter. For example, a private
prisons operator, an electricity distribution company or a
construction company building publicly funded infrastructure, could
each be required to comply with the Charter. Companies should be
particularly conscious of these obligations in government
The Charter requires that, with certain exceptions, all
statutory provisions must be interpreted in a way that is
compatible with human rights. Accordingly, legislation impacting
the construction industry such as the Domestic Building
Contracts Act 1995 (Vic) (DBCA) or the
Building Act 1993 (Vic), must also be interpreted so as to
give effect to human rights and to take into account international
authorities. These rules of statutory interpretation are likely to
have particular relevance where the legislation relates directly to
domestic consumers, such as the warranties contained in the DBCA.
For example, a person's human right to security, the right not
to be treated in a degrading way and the right not to have
one's home arbitrarily interfered with, could arguably be used
to significantly widen the current interpretation of the DBCA
Obviously, construction projects can also be directly impacted
on by the Charter. The industry is starting to see some Public
Authorities requiring that contractors accept and comply with their
obligations under the Charter (and indemnify the public authority
in respect of the same). This sort of drafting is recent and not
yet common, but may become more prevalent as more major social
infrastructure projects start to come on line in Victoria.
Given the fairly recent operation of the Charter, it is
difficult to predict the effect the obligations under the Charter
may have in the construction industry. However, it takes only a
little imagination to envisage that rights such as those noted
above could operate to, at best, change the way D&C and O&M
Contractors carry out public projects and, at worst, change the
scope of the works they are required to carry out. As contractors
will often be required to accept the obligation to comply with all
laws, this issue may well be at the contractors time and cost risk.
Obviously one simple solution for the contractor is to include a
carve-out for responsibilities under the Charter (although this may
not be commercially acceptable).
It is still not clear whether the above impacts will materialise
for the construction industry, so the question of whether the
Charter is a sleeping giant or a toothless tiger still remains.
However, as with all such potential risks, companies need to be
mindful of the Charter's obligations particularly if the
company is involved in major public projects which are likely to
have a significant impact on private individuals. Finally, it is
worth noting that legal risk aside, there may be benefits in
companies being generally aligned with a rights framework and
otherwise avoiding reputational risk that may be associated with
allegations of breaching human rights.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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