The Government position is being coordinated by the Office of the Premier and the Department of Premier and Cabinet. It is likely that a decision on the future of the Charter will be made within Government by December 2011, with a formal Government position announced in March 2012.

We strongly encourage individuals and organisations to write to the Premier calling for the Victorian Charter to be retained and strengthened.

This page contains the following information:

• SARC’s Report on the Charter’s operation…
• … and the Premier’s Response
• Why and how the Victorian Charter should be maintained and strengthened
• What Can You Do?

SARC’s Report on the Charter’s operation…

The Scrutiny of Acts and Regulations Committee was tasked by the Attorney-General to review and report on the Charter’s operation and impact.

The Final Report of the Review of the Victorian Charter of Human Rights and Responsibilities Act 2006 was tabled in the Victorian Parliament on Wednesday 14 September 2011.

While the Committee recommended against repeal of the Charter in its entirety, it did recommend that courts have no role or a substantially reduced role in enforcing human rights and providing remedies when they are breached. It also recommended that government departments and public services have no or reduced obligations to act compatibly with rights. These amendments are tantamount to repeal.

If the recommendations of SARC on the future of the Charter are accepted, Victoria will become the first state in the developed, democratic world to substantially weaken the legal protection of human rights.

The Victorian Government is required to table a response to the Committee’s recommendations within six months. The Government is not bound by SARC’s recommendations and their response could involve strengthening, weakening or even repealing the Charter.

… and the Premier’s Response

In response to SARC’s report, the Premier announced that the Government response will be prepared and co-ordinated by the Department of Premier and Cabinet.  The Premier also stated that:

• the SARC report, and many of the submissions made to SARC, indicate that the Charter of Human Rights has delivered benefits to Victoria, and should not be repealed; and
• the views expressed in the SARC report are those of the cross-party committee members and not necessarily those of the Coalition Government.

Click here for a copy of the Premier’s media release and click here for the HRLC’s media release.

The Victorian Charter should be retained and strengthened

Why the Victorian Charter should be retained

The HRLC considers that the Victorian Charter should be maintained and strengthened for six key reasons:

1. The evidence clearly demonstrates that Charter of Human Rights is delivering benefits for Victorians
2. Predicted adverse consequences of the Charter have been proven unfounded and incorrect
3. There is very strong community support for the Charter
4. Substantial amendment of the Charter would create unnecessary costs and uncertainty
5. Human rights promote transparency and accountability in government and are essential for a fair and just Victoria
6. Victoria should not go down in history as the first democratic state to wind back human rights laws

These reasons are explained in further detail in the HRLC’s Briefing Paper to the Office of the Premier.

How the Victorian Charter could be strengthened

While the evidence shows that, overall, the Charter is working effectively and efficiently, there are a few modest reforms that the HRLC considers could streamline and strengthen the operation of the Charter. These are options

1. Civil and political rights:  Part 2 of the Charter could be amended to include all of the human rights contained in the International Covenant on Civil and Political Rights that are not currently enshrined in the Charter.
2. Economic, social and cultural rights:  Consideration should be given to amending Part 2 of the Charter to include human rights enshrined in the International Covenant on Economic, Social and Cultural Rights, but perhaps limiting the application of those rights to the functions set out in Part 3, Div 1 (Scrutiny of new legislation).
3. Limitations on human rights:  Section 7 of the Charter could be amended to clarify that it does not apply to absolute human rights, such as the right to protection from torture and cruel, inhuman or degrading treatment. This would ensure that human rights are not subject to limitations in Victoria that are strictly prohibited under international law.
4. Override by parliament:  Section 31 of the Charter, which enables Parliament to make an override declaration, could be repealed as it is unnecessary in a statutory model of human rights protection.
5. Legal proceedings and access to remedies:  Section 39 of the Victorian Charter, which relates to legal proceedings, is unnecessarily complex and is inconsistent with the principle that victims of human rights breaches should have accessible and effective remedies. It could be replaced with a provision that: establishes a free-standing cause of action for breaches of protected human rights which is justiciable and enforceable in the appropriate court or tribunal (including the Victorian Civil and Administrative Tribunal); and empowers the court or tribunal to grant such relief or remedy, or make such order, within its powers, as is “just and appropriate”, including making an award of damages where appropriate.
6. Notice provisions:  Section 35, which requires that the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission be notified of proceedings brought under the Charter, can operate as a disincentive to meritorious submissions, delay proceedings and increase compliance costs. Section 35 could be repealed or, alternatively, amended to provide courts and tribunals with discretion to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason.
7. Auditing of public authorities:  Section 41 could be amended to vest the Victorian Equal Opportunity and Human Rights Commission with an own motion power to inquire into and audit the compliance of a public authority’s policies, programs and practices with human rights.
8. Savings provision:  Section 48 of the Charter could be repealed or, alternatively, amended to provide that it does not apply to Part 3, Div 1 of the Charter. This would ensure that laws relating to abortion are subject to pre-enactment human rights scrutiny.

What Can You Do?

We are encouraging interested organisations and individuals to support the Premier to do the right thing and retain and strengthen the Victorian Charter. Those wishing to do so should write to the Premier or their local MP to indicate that there is strong community support for the Victorian Charter. Contact details for Premier Baillieu are available here.

Further Information

Further information about the Victorian Charter and its impcat and operation is available at http://www.hrlc.org.au/content/review-of-the-victorian-charter-of-human-rights/.

The Scrutiny of Acts and Regulations Committee today tabled its review of the Victorian Charter of Human Rights and Responsibilities. While the Committee recommends against repeal of the Charter, it does recommend that courts have no role or a substantially reduced role in enforcing human rights and providing remedies when they are breached. It also recommends that government departments and public services have no or reduced obligations to act compatibly with rights

“Overall, the Committee’s report is profoundly disappointing,” said Phil Lynch, Executive Director of the Human Rights Law Centre. “The recommendations do not reflect the overwhelming evidence as to the value and benefits of Victoria’s Charter of Human Rights. These benefits include greater government accountability, more responsive public services, and a better deal for some of Victoria’s most vulnerable groups, such as people with disability, people with mental illness and the homeless.”

Mr Lynch said that while the report made some welcome recommendations that could streamline and strengthen parliamentary scrutiny of the human rights impacts of proposed laws, most of the proposed reforms were regrettable and regressive. “Parliament has an important role to play in promoting and protecting human rights, but it’s not the be all and end all. Government and public services also have a critical role to play in respecting human rights and courts in upholding them,” said Mr Lynch.

“This review should have been used as an opportunity to strengthen the human rights of all Victorians, such as by amending the Charter to enshrine the rights to adequate housing, education and health care,” he said. “Instead, if enacted, the recommendations will reduce government accountability and Victorians’ access to a fair deal if their rights are breached.”

The Victorian Government has six months to respond to the report. “If the Baillieu Government is serious about its commitment to a fair and just Victoria, it will reject most of the recommendations in this report,” said Mr Lynch. “Victorians deserve greater recognition and protection of values such as freedom, dignity, equality and respect, not less.”

The SARC report is available at http://www.parliament.vic.gov.au/sarc/article/1446.

The Human Rights Law Centre submission to the inquiry is at http://www.hrlc.org.au/content/review-of-the-victorian-charter-of-human-rights/.

Contact:

Phil Lynch (03) 8636 4450 or 0438 776 433

Ben Schokman (03) 8636 4451 or 0403 622 810

In the case of Momcilovic v The Queen & Ors [2011] HCA 34 (8 September 2011), the High Court held that the Charter protects fundamental human rights and maintains parliamentary sovereignty.

By a majority of 6-1, the Court held that s 32(1) of the Charter, which requires that Victorian legislation be interpreted consistently with human rights, is an ordinary principle of statutory interpretation that does not empower the courts to radically re-interpret legislation or subvert parliament’s intent. According to Phil Lynch of the Human Rights Law Centre, which made submissions to the High Court in the matter, “The Court has affirmed that, consistent with the rule of law, the judiciary has an important role to play in upholding human rights. Far from being undemocratic, an independent judiciary which is empowered to interpret laws to protect rights and freedoms is a fundamental feature of our liberal democracy.”

By a majority of 4-3, the High Court also held that the power conferred by parliament on the courts to make a declaration notifying parliament where legislation may be incompatible with human rights is valid. “Declarations of Inconsistent Interpretation under the Charter play an important role in calling the attention of parliament and the people to laws that may be inconsistent with human rights,” said Mr Lynch. Such declarations do not affect the validity of legislation, but instead act as a trigger for parliament to consider whether a particular law should be amended to better protect the human rights of all Victorians.

The High Court’s extensive consideration of the Charter arose in an appeal by Vera Momcilovic against her conviction for drug trafficking. The Court quashed her conviction and ordered a re-trial. It is important to note, however, that the conviction was not quashed because of the Charter. Instead, the High Court upheld the appeal on the basis that the Victorian courts in which she was convicted had misconstrued the operation of the Drugs Act.

According to Mr Lynch, the High Court’s decision is particularly important and timely in light of the Baillieu Government’s current review of the Charter. “Any suggestion that the Charter shifts power to judges and usurps parliamentary sovereignty can be laid to rest,” said Mr Lynch. “There is also no longer any doubt, if ever there was, that the Charter is valid and constitutional”.

Mr Lynch said that the High Court’s decision has helpfully identified the need to clarify the operation of s 7 of the Charter, which relates to permissible limitations on rights. Earlier in the week, on Tuesday, the Victorian Court of Appeal decision in Sudi also identified the need to clarify s 39, which relates to legal proceedings. “These landmark judgments are very timely,” said Mr Lynch. “Together, they affirm the validity and operation of the Charter but also helpfully chart the course for minor amendments to the Charter to increase certainty in the interpretation of laws and provide Victorians with better access to remedies for human rights breaches.”

The judgment is available at http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html.

ENDS

Victoria Police use force, on average, every 2.5 hours. Almost three quarters of these incidents involve the use of capsicum spray. There have been at least 12 people shot dead by Victoria Police in the last decade, while numerous others have died in police custody.

A new report by the Human Rights Law Centre has found that human rights-compliant regulation, training and monitoring of Victoria Police would reduce the incidence of use of force, provide better guidance and support to police in enforcing the law and protecting the community, and increase public confidence in policing.

The report, Upholding Our Rights, is based on an extensive survey of international best practice in human rights-compliant policing, together with consultations with people with mental illness, Indigenous peoples, and young people of African descent. Input was also obtained from Acting Chief Commissioner of Police, Ken Lay.

“Current systems for regulating, monitoring and investigating police use of force are inadequate,” said Anna Brown of the Human Rights Law Centre. “In recent years, Victoria Police has made welcome improvements to training, including by promoting the importance of human rights and increasing the emphasis on communication and conflict de-escalation. However, nearly three years on from the fatal shooting of 15 year old Tyler Cassidy, it is clear that more needs to be done to reduce the frequency of incidents involving the use of force by police in Victoria.”

According to Ms Brown, “The next step must be to reform the law and the Victoria Police Manual to make clear that force is only lawful as a last resort and when strictly necessary. It should be used with the utmost restraint and in a manner which minimises damage and injury.”

In addition to containing constructive and practical recommendations as to police training and law reform, the report also recommends better monitoring and investigation of police use of force.

“Our research and consultations indicate that excessive use of force is a significant issue for people with mental illness, homeless people, Aboriginal and Torres Strait Islander people and young people, particularly of African descent. It also identifies a real risk of ‘mission’ creep’. Force should only be used to safeguard life and property, not for behavioural or compliance purposes,” said Ms Brown. “An independent body, such as the Victorian Equal Opportunity and Human Rights Commission, should be mandated and resourced to monitor where and when police are using force, for what purpose, and against whom.”

The report also reveals that Victoria’s systems for investigating police-related deaths are incompatible with international standards and Victoria’s Charter of Human Rights. “Currently, if someone dies from a police shooting or in police custody, the investigation is conducted by Victoria Police, giving rise to a serious conflict of interest,” said Ms Brown. “Human rights law and international best practice require that such investigations be conducted by a body that is fully independent of police. An independent investigative body would not only reduce the risk of collusion or corruption, but increase public trust and confidence in police processes.”

Ms Brown said that “If the Victorian Government is serious about transparency and accountability, we need to ensure that these principles are upheld when Victorian citizens are injured or killed by Victoria Police.”

The Human Rights Law Centre hopes that the report will be a useful resource and guide to reform for Victoria Police, the government and civil society. “Human rights can provide a valuable framework for police regulation and action that emphasises human dignity while also enabling police to use force in a way that is lawful and enhances community safety. As Victoria Police has itself written, ‘human rights protection is synonymous with good policing in liberal democratic societies’.” In his input to the report, the Acting Police Commissioner wrote that Victoria Police is “committed to working closely with stakeholders to improve the processes and training relating to the effective use of tactical options as well as investigation processes.”

The report was supported through a grant from the Legal Services Board of Victoria Grants Program.

Contact:

Anna Brown, Human Rights Law Centre – (03) 8636 4432 or 0422 235 522 or anna.brown@hrlc.org.au

Documents:

Upholding Our Rights: Towards Best Practice in Police Use of Force – Final Report

Upholding Our Rights – Background Research Paper

• the common law and our political system of representative democracy already adequately protect human rights;
• the Victorian Charter undermines parliamentary sovereignty and transfers power from parliamentarians to unelected judges;
• the Victorian Charter is a lawyers’ picnic and leads to more litigation;
• the Victorian Charter protects the rights of minorities at the expense of the majority and is therefore undemocratic;
• the Victorian Charter is bureaucratic, costly and inefficient;
• the Victorian Charter undermines religious freedoms;
• human rights are vague and ill-defined; and
• the expression of the human rights contained in the Victorian Charter is inconsistent with the expression of those rights in international conventions, like the ICCPR.

The HRLC’s comprehensive submission to the Scrutiny of Acts and Regulations Committee is available here.

Summary

In this case, the Supreme Court of Victoria held that the Victorian Civil and Administrative Tribunal had both failed to interpret law consistently with human rights and had itself failed to act compatibly with human rights in appointing an administrator to sell the home of a man with disability against his wishes.

Facts

Patrick is a 58 year old man who has a mental illness and has been an involuntary patient in a hospital for over ten years. He owns a house and wants to live independently in the community. According to the Court, however, this is “quite unrealistic” and would likely lead to a “serious deterioration” in his physical and mental health.

The hospital “wants to move Patrick to supported accommodation in a hostel, which he opposes”. The hospital considers that “the move would be more likely to succeed if Patrick did not continue to own his home” and therefore applied to the Victorian Civil and Administrative Tribunal for an administrator to be appointed over his estate with a view to selling the house.

At first instance, VCAT decided that “Patrick was a person with a disability who was unable to make reasonable judgments about his estate and needed an administrator”. Although the Tribunal accepted that Patrick had a “very strong connection with his home”, it decided that “judgments about his estate could not be separated from where it was in his best interests to live”. Accordingly, it appointed State Trustees Ltd to be an unlimited administrator, knowing it would probably sell Patrick’s home.

Patrick appealed to the Supreme Court of Victoria to set aside the appointment of the administrator, contending that “he manages his finances and home reasonably well and the administration order unjustifiably interferes with his human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).”

Decision

Justice Bell allowed the application and set aside the order of the Tribunal to appoint an administrator on two grounds. First, His Honour held that VCAT made an error of law, stating that:

…appointing an administrator, particularly with unlimited powers, is a very serious step because it transfers complete and exclusive control of a person’s estate to the administrator. Such a step engages the human rights, and the fundamental common law rights and freedoms, of persons. In accordance with the applicable principles, I have interpreted the provisions of the Guardianship and Administration Act so as to preserve as much as possible a person’s human rights to choose where to live, including in a home which they own (s 12), to be free of arbitrary and unlawful interference with their home (s 13(a)) and to enjoy these rights equally with other people (s 8(3)), as specified in the Charter of Human Rights and Responsibilities Act…

Second, His Honour held that, as a public authority under s 4(1) of the Charter, the Tribunal was required by operation of s 38(1) to exercise the discretion to appoint an administrator compatibly with Patrick’s human rights. In the circumstances, Bell J “concluded the appointment of the administrator was not reasonable and demonstrably justified and was therefore incompatible with Patrick’s human rights and unlawful.” His Honour stated that:

The appointment infringes [Patrick’s] human rights very seriously, as the administrator will take complete management and control of his money and other property, and probably sell his home. No sufficient purpose has been shown to justify such a serious infringement of his human rights, as he is not in a crisis (or anything like it) in terms of his health, accommodation or otherwise. He has not been found to be mismanaging his money or his home. It is not known whether transferring him to a hostel would be successful, temporary or permanent. Lastly, appointing an unlimited administrator was virtually the most rather than the least restrictive option which was reasonably available.

Consideration of Charter Issues

In reaching the conclusions above, Bell J made a range of significant statements regarding the interpretation and application of the Charter, some of which are summarised below.

Scope and engagement of human rights (paras 36-40)

For the purpose of determining whether there has been a limitation, restriction or interference with human rights, rights should be interpreted broadly, purposively and in a “non-technical way”.

Equality (paras 41-44)

The right to equality under s 8 of the Charter is a “right of fundamental importance”. It includes the right to non-discrimination on the grounds of disability and is, by definition, engaged by the appointment of an administrator.

Freedom of movement (para 45-52)

The right to freedom of movement protected by s 12 of the Charter “protects a person’s liberty of movement in Victoria and their freedom to choose where to live” and to establish a residence. Legislation or legal steps to remove a person from their home or to prevent them from returning home engages the right to freedom of movement.

Right to privacy and home (paras 53-62 and 74-86)

The right of persons “not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with” is right of “considerable amplitude”, the purpose of which is “to protect and enhance the liberty of the person – the existence, autonomy, security and wellbeing of every individual in their own private sphere”.

Contrary to the view of Kaye J in WMB v Chief Commissioner of Police [2010] VSC 219, the right to freedom from “arbitrary” interference is not limited to interference “which stems from an act of caprice or whim”. Rather, consistent with international and comparative human rights law, including jurisprudence of the UN Human Rights Committee:

the human right in s 13(a) not to have your privacy, family, home or correspondence ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.”

Right to property (paras 87-95)

Section 20 of the Charter provides that “a person must not be deprived of his or her property other than in accordance with law.”

The terms “property” and “deprived” should be “interpreted liberally and beneficially to encompass economic interests and deprivation in a broad sense.”

The requirement that any deprivation of property be “in accordance with law” requires not only that the deprivation be legally authorised, but that “the law concerned must be publicly accessible, clear and certain and not operate arbitrarily.”

In the present case, the appointment of an administrator amounted to “a de facto deprivation of property which engaged the right in s 20”, however, “the provisions of the Guardianship and Administration Act plainly answer the description of a ‘law’ within that provision”.

Relevance and weight of jurisprudence of the UN Human Rights Committee (paras 63-73)

Contrary to WMB v Chief Commissioner of Police [2010] VSC 219, in which “Kaye J doubted the jurisprudential value of findings of the UN Human Rights Committee” in assisting in the interpretation of the Charter, Bell J stated that:

The Human Rights Committee is an independent body of human rights experts established under the International Covenant on Civil and Political Rights. Although it is not a court, it is quasi-judicial in character. Its decisions and general comments are not binding precedents and it our duty to form an independent view on the matters in issue. But the opinions of the committee represent an important body of jurisprudence on the interpretation and application of the covenant. Australian courts of high authority have referred to and relied on the opinions and general comments of the committee when interpreting the provisions of the covenant or domestic legislation to which it is relevant…That is especially so when identifying the scope of the human rights in the Charter, which reflect to a large extent those specified in the covenant.

Application of the Charter to the Tribunal (paras 97-129)

Pursuant to s 38(1) of the Charter, “public authorities” must act compatibly with human rights. “The concept of a public authority is thus critical to the achievement of the purposes of the Charter” and “should be given a beneficial interpretation which is consistent with that purpose.”

The focus of the definition of “public authority” is “on matters of substance, not form or technicalities”. This accords with the Second Reading Speech which states that the “intent is that the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature.”

When acting in an administrative capacity in its original and review jurisdiction, “the Tribunal is a public authority under s 4(1)(b) of the Charter and bound by s 38(1) to act compatibly with human rights”.

Section 32 Interpretative Obligation (paras 239-271)

Section 32(1) of the Charter requires that the relevant provisions of the Guardianship and Administration Act “be interpreted compatibly with human rights so far as that is possible consistently with the purpose of those provisions.” The “possible interpretations must be explored within the framework of the ordinary rules of interpretation, having regard to that purpose” and “the interpretation which least infringes human rights must be adopted”.

Section 39 – Legal Proceedings (paras 290-303)

Section 39(1) of the Charter “does not create a new cause of action or other proceeding”. Instead, “it attaches unlawfulness arising under the Charter as a ground to existing causes of action or proceedings by which relief or remedy may be obtained in respect of the act or decision on a ground of unlawfulness arising otherwise than because of the Charter. It then operates to make that relief or remedy available in that cause of action or proceeding on the ground of unlawfulness arising under the Charter, whether or not that relief or remedy is granted on a ground of unlawfulness not arising in that way.”

Accordingly, to apply s 39(1), “it is necessary to ask whether the [person] ‘may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful’. If the answer to that question is positive, then ‘that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter’.” By way of example, “in judicial review proceedings in which any relief or remedy may be sought on grounds of Wednesbury unreasonableness, s 39(1) permits the applicant to rely on a ground of unlawfulness arising under the Charter. Where Charter unlawfulness is established, the relief or remedy which could be sought on the ground of Wednesbury unreasonableness can be granted by the court on a ground of unlawfulness arising under the Charter, whether or not the unreasonableness ground is determined.”

Sections 38 and 7(2) – Obligation to Act Compatibly with and Give Proper Consideration to Human Rights (paras 304-333)

Pursuant to s 38(1) of the Charter, an “act or decision of a public authority will be unlawful if it is ‘incompatible with a human right’ or proper consideration to a human right was not given”. The concept of “compatibility” in s 38(1) is to be read in conjunction with “the concept of justification in s 7(2).” Reading the provisions together, “an act or decision of a public authority will be unlawful under s 38(1) if it limits a human right in a manner which is not reasonable and demonstrably justified as specified in s 7(2), unless s 38(2) applies.”

Under s 7(2), “the onus of establishing that the limitation is demonstrably justified lies on the party seeking to uphold the justification. The standard of justification is stringent. Where matters of fact are involved, cogent evidence may be necessary. While the civil standard of proof applies, a high degree of probability is required, because limiting human rights is involved.”

The “‘procedural’ limb of s 38(1) that ‘proper consideration’ be given to relevant human rights requires public authorities to do so in a practical and common-sense manner”. While there is “no formula”, the public authority must “seriously turn his or her mind to the human rights impact of what is proposed and identify the countervailing interests or obligations”.

While the procedural limb is critical, s 38(1) also “requires the act or decision to be compatible with human rights” and “what matters is the result”. “Consideration” will not be “proper, however seriously and genuinely it was carried out, if the act or decision is incompatible with human rights.”

Judicial Review of Public Authorities under s 38 (paras 304-327)

When reviewing acts and decisions of public authorities under s 38, “the function of the court is to make an independent and objective judgment for itself about whether the limitation is justified under s 7(2) and therefore whether the act or decision is unlawful as incompatible with human rights or compatible and therefore lawful. The better was the consideration given to human rights at first instance, the harder it will be to challenge the act or decision concerned; but it is the actual compatibility of the act or decision with human rights that is at issue, not the quality of the reasoning supporting it.”

Although the standard of review to be applied by a court when assessing unlawfulness under s 38(1) and s 7(2) of the Charter does not amount to merits review, it “is a more intensive standard of judicial review than traditional judicial review on (say) Wednesbury unreasonableness grounds”. Endorsing the approach of Lord Steyn in R (Daly) v Secretary of State for the Home Department, His Honour quoted that:

First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relevant weight accorded to interests and considerations.

Proportionality therefore “draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests than traditional judicial review”.

While it is critical that courts “provide effective judicial protection for human rights” they must at the same time “respect the administrative function of the public authority under its legislation and not drift into merits review”. One important way of addressing that issue is “by affording weight and latitude to the acts and decisions of primary decision-makers”. The degree of weight or latitude which is afforded, and the intensity of the review which this implies, depends on the context and circumstances”, including “the comparative institutional advantage of the court (if any); the experience and expertise of the primary decision-maker; the nature and importance of the right, and the purpose of the interference, in question; and how well suited the court is to considering the values and interests which are at stake.”

The decision is at http://www.austlii.edu.au/au/cases/vic/VSC/2011/327.html.

Phil Lynch is Executive Director of the Human Rights Law Centre

The Victorian Attorney-General recently announced a review of the Charter of Human Rights and Responsibilities Act 2006 (Victorian Charter) after four years of its operation.  The review is to be conducted by the Scrutiny of Acts and Regulations Committee (SARC), which is due to report to Parliament by 1 October 2011.

Further information about the conduct of the review by SARC is available at http://www.parliament.vic.gov.au/sarc/inquiry/297.

An Opportunity to Strengthen the Victorian Charter

Four years after the introduction of the Victorian Charter, clear evidence is emerging that the Charter is having a beneficial impact on the operation of government and individuals in the community.  The review of the Victorian Charter presents a significant opportunity to strengthen and enhance its operation.

The HRLC has made a submission to the review of the Victorian Charter, which addresses:

• the overall impacts and benefits of the Charter;
• the Charter’s impact on legislative and policy formulation;
• the Charter’s impact on decision making and service delivery;
• the Charter’s impact on Victorian law; and
• myths and misconceptions associated with the Charter’s operation to date.

In its submission, the HRLC makes 20 key recommendations to improve the Charter’s effectiveness.

The HRLC has also made a further submission to the review of the Victorian Charter in response to issues raised in other public submissions to SARC.  The further submission addresses some of the views expressed in relation to the operation of the Victorian Charter that are unfounded in evidence or based on myths or misunderstandings.

Key Submissions to the Review of the Charter

The HRLC has compiled a list of submissions that have been made to the review of the Victorian Charter.

Further Information about the Review of the Victorian Charter

For further information about the HRLC’s activities in relation to the review of the Victorian Charter, please contact Ben Schokman on (03) 8636 4451 or ben.schokman@hrlc.org.au.

In its submission, the HRLC outlines the following effects of the operation of the Victorian Charter in its first four years:

Overall Impacts and Benefits

• The Charter’s mechanisms have encouraged Victoria’s strong democratic and legal institutions to give increased consideration to human rights in undertaking their roles and functions.
• While the Victorian Charter has by no means been a panacea to all forms of unfairness and injustice in Victoria, it has played an important role in ensuring that human rights are appropriately considered in all aspects of governmental activity. This includes in the development of laws and policies, in decision-making that affects every day Victorians, and in the role of courts and tribunals.
• The wide range of areas in which the Victorian Charter has played a role suggests that the protection of human rights is relevant to Victorians in many different contexts.

Impact on Legislative and Policy Formulation

• The Victorian Charter has substantially strengthened the consideration of human rights in the development and drafting of new legislation and policies.
• The Victorian Charter’s mechanisms for promoting the compatibility of new legislation with human rights – namely, the preparation of Statements of Compatibility and the review by SARC of all Bills introduced into Parliament – have improved the transparency and accountability of the Victorian Parliament and Government.
• Formal scrutiny processes have also ensured that the needs of all Victorians are more appropriately considered in legislative and policy formulation and that, generally speaking, limitations on rights have only been imposed after careful consideration as to their reasonableness, necessity and proportionality.
• The operation of the Victorian Charter has maintained Parliamentary sovereignty. Parliament has been able to pass legislation even where it may not be compatible with human rights. Where courts have interpreted legislation in a way that was not intended by Parliament, the Parliament has been free to amend the law if it chooses to do so.

Impact on Decision Making and Service Delivery

• The Victorian Charter has had its greatest practical impact at the interface between service delivery providers and decision makers and the Victorian community, particularly with respect to marginalised or disadvantaged individuals and groups.
• The decision-making framework provided by the Victorian Charter has offered useful guidance to public authorities and employees. This decision making framework promotes that appropriate consideration and weight be given to fundamental rights and freedoms, that these rights and freedoms are counterbalanced by other relevant public interest considerations, and that limitations on human rights are rational and proportionate.
• While it is still early days, the Victorian Charter has contributed to cultural change within public authorities and encouraged human rights — and the principles of freedom, respect, equality and dignity — to be embedded in their work.

Impact on Victorian Law

• There has been no “flood of litigation” or discernible increase in the number, length or complexity of cases being brought before Victorian courts and tribunals as a result of the Victorian Charter.
• Courts have taken a moderate approach to the application and interpretation of the Victorian Charter. Indeed, the actual impact of the Victorian Charter in the courtroom has been significantly less than many predictions or descriptions. Where the Charter has had an impact, it has overwhelmingly been in a beneficial way and has been successfully used to challenge arbitrary or unjust policies and decisions.
• The Charter has not altered the constitutional balance between the Victorian Parliament, Executive and Judiciary. The role played by courts and tribunals under the Victorian Charter has enhanced the dialogue between the three arms of government and strengthened accountability and checks and balances.
• The Victorian Charter has been considered across a wide range of civil litigation, but has arisen most often in relation to cases dealing with access to justice, housing and homelessness, equality and non-discrimination, and mental health.
• Decisions by Victorian courts regarding the Victorian Charter have had very little impact on criminal law, where the common law already entrenches many fundamental rights and protections.

Myths and Misconceptions

• Myths and misconceptions have the potential to damage perceptions about the role of the Victorian Charter and its operation and impact. Some myths have evolved as a result of partial, incorrect or, at times, sensationalist media reporting. For example, the myth that the legislation is a “criminals’ charter” or the misconception that sharia law could be incorporated into Victorian law via the Victorian Charter are unfounded and incorrect.

In its submission, the HRLC makes 20 key recommendations to improve the Charter’s effectiveness.

Each year, the Commission is required to submit a report to parliament which examines the operation of the Charter, including its interactions with other laws, and any declarations of inconsistent interpretation and override declarations.

To do this, the Commission requests and then collates information provided by Victoria’s government departments, Victoria Police, local governments and a number of statutory authorities on the steps they have taken to implement the Charter into their operations.

The Report also presents community perspectives on the Charter’s operation, how it is working and the impact, benefits and limitations of the Charter in practice.  These perspectives were provided by community consultation undertaken by the Commission.

The Report found ‘clear evidence that the Charter is making a genuine difference for individuals and communities’.  The Report noted a number of themes which emerged in the course of the Commission’s review:

• when used appropriately, the Charter prevents breaches of human rights by taking rights into account at the front end of government operations;
• practical application of the Charter can be seen through matters being heard in courts and tribunals, where guidance on its application is emerging;
• there is also a significant parliamentary dialogue, although the role of the Scrutiny of Acts and Regulation Committee is crucial to informing Parliamentary debate and must be developed;
• community consultation recorded strong support for the protection of human rights through a mechanism like the Charter;
• given its focus is on cultural change, the Charter’s continued implementation needs strong leadership and commitment; and
• when Parliament passes laws which are inconsistent with, or override, human rights, transparent reporting on those laws and their operation should be mandatory.

The Report found a positive cultural change is taking place within government.  Accounting for and implementing human rights considerations is becoming entrenched in governmental practices and procedures.  When applied well, the Charter’s impact is ‘clear and positive’, for although the values enshrined in the Charter already exist within the public service, the Charter provides a ‘strong and clear framework’ for public authorities to work within.  However, the Report noted that a consistent and thorough approach is needed to ensure implementation of the Charter across all government agencies and to ensure that all staff understand how the Charter applies to their work.

The Report observed that a more consistent approach and application of the Charter would better enable public authorities to deliver better outcomes for all Victorians and would assist in reducing the time spent by the courts and VCAT on matters which could be avoided through better consultation, analysis and planning at the public service level.

Although the Report noted four years was a relatively short time in which to adequately assess the Charter’s impact, the Commission has seen increasing sophistication in the utilisation and application of the Charter in that time.  Public authorities are not only training and reporting on the Charter; they are using the Charter to assist their decision making processes, enhance accountability and raise service standards, with the result of ‘achieving fairer, more inclusive and better services’ for all Victorians.

The Commission similarly observed greater clarification in the use of the Charter in the courts and VCAT in that time.  While there have not been many Charter cases, those cases have provided valuable guidance on the interpretation of the meaning and scope of human rights which has clarified governmental responsibilities under the Charter which in turn has strengthened the law and policy-making process.

The Report is also accompanied by three consultation reports with the Victorian community which examine the following discrete human rights issues:

• economic, social and cultural rights and the Charter;
• the rights of people with disabilities and the Charter; and
• consulting with Victoria’s Indigenous community about the right to self-determination and the Charter.

The Report, and the consultation reports, as well as the information provided by Victorian public authorities to compile the Report, are available at the Commission’s website at www.humanrightscommission.vic.gov.au/charterreport.

In response, the Federation of Community Legal Centres, Flemington Kensington Community Legal Centre, Darebin Legal Centre and the Human Rights Law Centre wrote to three Victorian Ministers requesting that an independent body be properly empowered and resourced to investigate police shootings and deaths in custody.

A copy of the letter can be found here.