Four years after the Charter of Human Rights and Responsibilities Act 2006 (the Charter) came into operation in the State of Victoria, Victorian Attorney-General Robert Clark has given the Parliamentary Committee for the Scrutiny of Acts and Regulations (the Committee) the task of reviewing it. While the Charter has occasionally been the subject of some controversy, it has delivered better results for vulnerable Victorians. The deadline for submissions to the Committee on the Charter closed last Friday, 1 July.
The Ethnic Communities Council of Victoria (ECCV) made a submission to the Committee with several recommendations. In its submission ECCV expressed the view that “overall, ongoing instances of discrimination, intimidation, and exploitation in the workplace and general society illustrate the need to strengthen existing protections and mechanisms for seeking redress, especially for vulnerable sections of the community.”
ECCV further stated that “the mere presence of the Charter has made more Victorians aware of the rights of others and more considerate of their dignity. More specifically, it has made vulnerable Victorians more aware of their rights and opportunities for redress, which ECCV believes to be a positive.” The ECCV noted that “the Charter has also helped to form the basis of organisational codes of practise and at local and community level to improve interpersonal and intercommunal engagement.”
Terms of Reference
Under the Terms of Reference the Committee was to inquire into, consider and report to the Parliament on the Charter by considering the following issues:
- The matters referred to in section 44(2) of the Charter:
- whether additional rights should be included in the Charter, including economic, social, cultural, children’s, women’s and self determination rights
- whether further provisions should be made regarding public authorities’ compliance with the Charter, including regular auditing and further provision for remedies
The Charter was legislated by the previous Labour Government and came into full effect on 1 January 2008. The Labour government had chosen to adopt a conservative approach with a lighter version of the human rights protections enjoyed in Canada, South Africa, Britain and New Zealand.
Under the charter, courts must interpret laws consistently with human rights, but if it unambiguously breaches human rights, a law is not de facto invalid. A court may only declare that the law breaches human rights and refer the matter back to Parliament to decide what action, if any, to take. Individuals have no right to directly sue if their human rights are breached.
The Charter is a Victorian law that sets out the basic rights, freedoms and responsibilities of all people in Victoria. It requires that governments, police, local councils and other public authorities (for example, government school councils, public hospitals and privatised prisons) consider human rights when they make laws, develop policies or provide services.
The Charter aims to build a fairer, more inclusive community by requiring that the Victorian Government, local councils and other public authorities consider human rights when they make laws, develop policies and provide services.
The Charter gives legal protection to twenty fundamental human rights, such as, the right to a fair trial, the right to free expression, the right to join groups and meet freely, and the right to enjoy their culture.
In certain circumstances, some rights may be limited. However, this must be necessary and reasonable and there must be clear reasons for the decision.
How does the Charter work?
The Charter requires the Victorian Government, public servants, local councils, Victoria Police and other public authorities to consider human rights when they make laws, develop policies and provide their day-to-day services.
Each new law must be validated against the Charter and requires a Statement of Compatibility to inform Parliament how it relates to human rights. If a law limits the rights set out in the Charter, the Statement of Compatibility must explain the extent that it does so and why. In exceptional circumstances, the Parliament is still empowered to pass a law that does not uphold human rights by issuing an override declaration.
This process aims to anticipate potential problems and prevent unfair treatment from occurring in the first place. In cases that come before it, the Supreme Court can issue a declaration of inconsistent interpretation, which requires the minister who proposed the law to revisit it. However, the Court does not have the power to strike down legislation. Parliament has the final say over the laws of Victoria.
The future of the Victorian Charter of Human Rights
In an article published in the The Age on 8 June 2011 under the heading of Vulnerable Victorians deserve a stronger charter of rights the Executive Officer of the Federation of Community Legal Centres (Victoria), Hugh de Kretser, calls for the strengthening of the Charter and for improving outcomes for citizens by requiring government to focus on the human impacts of its action.
De Kretser writes that “the charter focuses the attention of government agencies on delivering human rights compliant services. Of course, statements requiring consideration of human rights by government agencies are likely to be meaningless unless backed by remedies allowing individuals whose human rights are breached to take action. Human rights are not ‘rights’ at all if Victorians have no way of seeking compliance with them through the courts.”
De Kretser also refers to the lack of direct enforcement of human rights through the courts, as “the charter provides individuals with indirect means, through administrative law, of holding government agencies to account if they breach human rights. … a key weakness of the charter is that individuals cannot directly enforce human rights. In addition to allowing courts to invalidate legislation that breaches human rights, this is one of the main areas where the charter should be strengthened.”
In another article published in the Sydney Morning Herald on 17 June 2011 under the heading of Charter gives protection to the rights we all share, Professor Spencer Zifcak, President of Liberty Victoria, gave five reasons why the Charter should be retained and five reasons why the arguments of Charter opponents are misdirected.
The five compelling reasons why the Charter should be retained are listed as follows:
- The charter provides legal protection for the fundamental human rights shared in common by all Victorians, e.g. freedom of speech, association and assembly; freedom of conscience, religion and belief; freedom from cruel and degrading treatment; the right to be free from arbitrary detention; and the right to fair trial. In Australia, only in Victoria and the ACT are these rights supported by statute.
- Australia is a signatory to every major international human rights treaty. However, unlike the Commonwealth and every other Australian state, Victoria is the only state in which these treaty rights have been given effect through legislation.
- The Charter has led to better policy-making in government and its agencies. For example, the Department of Health reported recently that the incorporation of human rights considerations in policy development has had a bene
ficial effect in defining more precisely when interventions restrictive of people’s liberty should be undertaken.
- Parliamentary debate on legislation has also been improved. Ministers must now indicate to Parliament if they believe the laws they introduce are charter compliant. The Committee must also report to Parliament on the human rights impact of proposed laws. The effect of these requirements had been an increase in transparency, inviting public discussion and enhancing the quality of parliamentary deliberation.
- Since the charter’s commencement many people have benefitted from its protection. Local councils have become more sensitive to the needs of people with physical disabilities. In one example, a young man with Asperger’s syndrome was able to access disability assistance that had previously been denied. The rights of children in the criminal justice system have been improved. The charter has engendered a comprehensive review of mental health law and policy.
As for the misdirected arguments put forward by opponents of the Charter, Professor Zifcak highlights the following:
- The effect of the Charter will be to shift power from the elected legislature to an unelected judiciary. There is little, if any, evidence to support this assertion. In fact, just as there was no such shift in the UK ten years after the introduction of human rights law there (and similarly in New Zealand), there was no evidence whatever of such a constitutional transfer of power in Victoria.
- The charter has the effect only of advancing the rights of criminals. It is true that in the early days of the charter a significant number of cases dealt with criminal procedure. Few were successful. Many more cases dealt with issues that concern people in genuine need.
- It would result in a lawyers’ picnic. The statistics have proved otherwise. In fact, many fewer cases have come to court than expected. Lawyers have been slow to get up to speed with the Charter legislation and, moreover, the Charter encourages better policy and legislation reducing the need for legal challenges on human rights grounds.
- The charter may usher in new laws with respect to abortion, gay marriage and euthanasia. This simply has not happened.
- Parliaments are much better at protecting rights than the courts. Since parliament enacts laws and the government implements them, neither parliament nor the government can decide impartially and objectively whether or not a challenge to a law or to the action of an agency is justified. An independent umpire in the form of the judiciary is required to determine challenges to law or agency behaviour and consider the appropriate remedies.
There is no doubt that, in light of the Coalition’s historic opposition to the Charter when in opposition, the Victorian Government’s review of the Charter, now enshrined in law, could significantly alter its future operation and its ability to protect vulnerable Victorians. Given the structure of the committee conducting the review, some suspect that the government intends to water down the Charter, or even go so far as to repeal it.
I agree with Professor Zifcak in concluding that it would be unfortunate if the Baillieu government were to follow the examples set by only two countries and repeal a human rights law after it had been in operation. For the record, the two countries are Belarus and Zimbabwe. Let’s hope that such a retrograde step will not be taken following the review.