With considerable fanfare the Victorian Attorney-General, Rob Hulls, has introduced the Government's long anticipated Charter of Human Rights and Responsibilities into the Victorian Parliament. With a government majority in both Houses of Parliament, the Charter Bill is likely soon to become law.
The Charter is a considerable credit to the Attorney. He foreshadowed the legislation in a wide-ranging and thoughtful Justice Statement which set out a ten year plan for the reform of the law and the courts. He established a Human Rights Consultative Committee, chaired by Professor George Williams, which conducted an extensive and effective community consultation to gather the views of Victorians about the desirability or otherwise of a Charter. And, having received a detailed report recommending the Charter's introduction, he steered the proposal through Cabinet and the public service despite concerted opposition in both quarters.
Given that opposition, it was perhaps inevitable that the final Bill would represent a political compromise. And so it does. The Charter legislation is strong on the human rights that it will protect and extend. At the same time, its enforcement provisions are quite weak. The price paid for the adoption of the Charter is that individuals will find it difficult to vindicate their rights in court or anywhere else.
Professor Williams' committee recommended that the Victorian Charter should codify the civil and political rights contained in the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a party. So, Victoria will recognize expressly in statute classic rights and freedoms such as the right to life; protection from torture and other forms of cruel, inhuman and degrading punishment; freedom of expression; freedom of thought, conscience, religion and belief; the right to privacy; the right to property; the right to liberty and security of the person; and the right to fair trial. The Charter also contains a wide-ranging anti-discrimination provision.
While it may be thought that Victorians possessed these rights anyway, the fact is that there was little if anything in statute law protecting human rights and any common law rights that had been established could be straightforwardly overridden by the parliament in legislation at any time. The Charter changes this position by enacting these human rights in statute, thus recognizing and, at least to some extent, securing them.
So, for example, a law made by Parliament which transgresses one of these fundamental human rights may now be challenged in the courts. Similarly, any action taken by a government department which infringes a person's fundamental rights is now to be unlawful. I return to some of the limitations on these enforcement mechanisms presently.
The Charter's founding principles are declared in its Preamble. This states, among other things, that:
- human rights are essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom;
- human rights belong to all people without discrimination ; and
- human rights come with responsibilities and must be exercised in a way that respects the human rights of others.
The Victorian Charter follows a similar instrument in the ACT in providing a modest guarantee, in these increasingly troubled times, that the Government will continue to recognize and respect rights properly assumed by Victorians to be their entitlement in a free and democratic society.
Victoria becomes the first State in the nation to adopt such a charter, and the legislation will serve as a benchmark in relation to which other States and Territories may fashion their own legislative protections for the human rights of their citizens. Tasmania, Western Australia and New South Wales are each considering similar legislation. In this respect and again in adverse circumstances, the Victorian initiative is very significant.
The Charter legislation is far from perfect, however. The draft law went through the political wringer before being put on display. Consequently, many wrinkles and rents are apparent.
The first and most important problem relates to the legislation's embrace of what is known as an override declaration. This means that the government of the day may declare, when introducing a new law, that it will operate despite any incompatibility or inconsistency with the Charter of Rights. An anti-terror law, for example, may breach fundamental human rights. But, upon the issue of an override declaration, it will have full force and effect anyway.
The override provision has its precedent in the Canadian Charter of Rights and Freedoms. Its inclusion there is perhaps more understandable because the Canadian Charter is constitutionally entrenched and is interpreted finally, therefore, by the judiciary.
In Victoria, however, that charter is a simple statute and can be amended by the Government at will. And it is not the judiciary but the parliament that has the final say about what action should be taken where legislation is found to be inconsistent with human rights. Given this, the addition of the override represents an unnecessary and wholly undesirable concession to those in the Victorian Government who demanded some safety valve that would ensure that in certain special circumstances, which they would define, the Charter's terms would not operate to defeat their political will.
A second problem relates to declarations made by the courts. In every other piece of legislation nationally and internationally in which courts can make a declaration concluding that an act of parliament trenches upon a human right (i.e. in the ACT, Britain and Ireland) the declaration is named as a declaration of incompatibility. In the Victorian legislation, the name of the declaration is changed to a declaration of inconsistent interpretation.
The implication is clear. Normally a court's decision as to the incompatibility of legislation is seen as conclusive. However, the unprecedented alteration in terminology in Victoria leaves it open for a government to suggest that the court's interpretation of a law as inconsistent with a human rights is simply one of a number of possible interpretations of which the government's is another. That in turn may relieve a government, at least in its own mind, of any responsibility to act to rectify the harm caused by the operation of the incompatible law.
The third major problem concerns an individual's capacity to take action against a government agency when that agency's acts infringe upon human rights. Normally, one might expect that a person could seek relief in the courts. Alternatively, or in addition, a person might approach some sort of Ombudsman to intervene in the matter. In the Victorian legislation, the first avenue is constrained and the second is almost non-existent.
The Victorian Government made it plain from the outset that it did not wish any new cause of action against government to be created. The only way, therefore, that a person might utilize the law to their advantage is by taking a human rights point in the context of other legal proceedings. A human rights action in and of itself is not created.
Further, the Williams Committee recommended that a new position of Human Rights Commissioner be established. A Human Rights Commissioner, like that in the ACT, would have had the power to review Victorian legislation and regulations for compatibility with human rights, to conduct inquiries on his or her own initiative in relation to any matter concerning the observance of human rights and to intervene in court cases concerning human rights. In Victoria, a much watered down and possibly ineffectual version of such powers has been conferred instead upon the existing Equal Opportunity Commission, thus depriving the legislation of symbolic leadership and, perhaps, significant practical effect.
To be fair, the Victorian Government has recognized that its human rights project is only partially complete. For that reason it has embedded in the Charter legislation a requirement that it be comprehensively reviewed in four years time with a view to considering whether further amendment to make the legislation more effective is required. Some of the issues raised here are on the agenda for such a review.
Further, the Government has recently announced a new budgetary allocation of some six million dollars to assist with the Charter's implementation. This money will provide training for government departments and agencies to ensure that their legislation and action is human rights compliant; establish a human rights advisory unit in the Department of Justice, and resource the Equal Opportunity Commission in undertaking its new functions. These measures are necessary and welcome.
In summary, all this represents a very positive beginning. But the end will not have been achieved, in my view, until the new Charter is shaped in a way that will make a tangible difference to the lives of those whose human rights are said to be protected by it – not least by affording them meaningful remedies when their rights are abused.
NewMatilda.com launched a campaign for a federal Human Rights Act in October 2005, with a draft Human Rights Bill as its centrepiece. The draft Human Rights Bill is available from: www.humanrightsact.com.au.