The ‘public authority’ – an unexpectedly broad concept

Paul Lamb, Lawyer, DLA Phillips Fox

While part of the Charter's aim is to reshape and influence the way that all Victorians recognise and respond to the notion of human rights, it is only 'public authorities' that are strictly bound by the legislative framework of the Charter. The Charter provides a list of indicators that will be influential when determining whether an entity is a public authority and there is useful international jurisprudence on the matter, however the definition of a public authority for the purposes of the Victorian Charter will be one that evolves with developing jurisprudence.

Particularly relevant for many of PILCH's clients is whether a not-for-profit or non-government organisations by reason of their funding arrangements and the public nature of their function will fall within the ambit of section 38 and be considered a public authority for the purposes of the Charter. The following article provides a useful explanation of the meaning of a public authority.

The definition of 'public authority' in the Charter of Human Rights and Responsibilities Act 2006 (Vic) may encompass many entities not traditionally thought of as part of government, thus giving them obligations and litigation risks under the Charter.

Key obligations on public authorities

The question of whether an entity is a 'public authority' determines whether that entity is subject to section 38 of the Charter, which provides that it is 'unlawful' for a 'public authority' to:

·                             Act (or fail to act or propose to act) in a way which is incompatible with a human right; or

·                             Fail, when making a decision, to give proper consideration to a human right.

Under section 39, a person may seek relief or remedy in respect of an act or decision on the grounds that it was 'unlawful' under section 38, provided that the person may seek relief or remedy on grounds beyond the Charter.

The definition of 'public authority'

The concept of the public authority ultimately comes from New Zealand's Bill of Rights Act 1994 (although the phrase itself is not used), via the Human Rights Act 1998 (UK). 

The legislative definition of 'public authority' in section 4 of the Charter is far more extensive and complex than those overseas, and will be quite differently interpreted. Some entities are specifically noted to be public authorities (Victoria Police, local Councils, Ministers and so on), and others may be declared by regulations. More broadly, 'public authority' includes:

·                             An entity established by a statutory provision that has functions of a public nature (section 4(1)(b))

·                             An entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or public authority (whether under contract or otherwise) (section 4(1)(c)).

These two broad definitions both use the phrase 'functions of a public nature', and include a number of other terms whose meanings require further consideration. The first definition centres on whether an entity is 'established by a statutory provision', and the second on whether the functions of a public nature are exercised 'on behalf of the State or a public authority'. 

'Functions of a public nature'

In determining whether a function is of a public nature, courts are permitted to take into account a list of factors at section 4(2). 

Under section 32(2) of the Charter, courts can also draw on international jurisprudence in interpreting statutory provisions (including those of the Charter). The term 'functions of a public nature' has been the subject of extensive jurisprudence in the UK. Indeed, in the brief UK definition of 'public authority', the only real question for a court is the meaning of 'functions of a public nature'.  New Zealand's jurisprudence on the phrase 'public function, power or duty' (as in Electoral Commission v Cameron & Ors [1997] 2 NZLR 421 (CA)) is also useful, if to a lesser extent. 

The UK case law has been complex and often contradictory, yet we can see that courts have generally been reluctant to consider a particular entity to be a public authority.  For example, the key recent decision of YL v Birmingham City Council [2007] UKHL 27 concerned care given to a resident by a private aged care home which received significant funding under a fee-for-service contract with a local council. The House of Lords found that the home was not performing 'functions of a public nature'. 

'Established by a statutory provision'

On its face, this definition seems to be fairly restrictive, but 'statutory provision' is a defined term in the Charter and includes acts, subordinate instruments and provisions of acts and subordinate instruments. 'Subordinate instrument' has a very broad meaning in Victorian law.  Therefore, a large array of entities are established by a statutory provision, including many not-for-profit entities.

Exercising functions 'on behalf of the State or a public authority'

The phrase 'on behalf of' has been extensively considered in Australian case law, and this case law is likely to be relevant here. The inclusion of the phrase 'whether under a contract or otherwise' most likely broadens this provision's effect. The outstanding question for the courts is whether private entities, most of whose functions are clearly private, are bound by the Charter in respect of certain functions performed under contract for the State. 

Conclusion

The possible breadth of the concept of the 'public authority' may greatly extend the Charter's obligations on many entities. We await the case law on this topic with interest.