The Charter of Human Rights and Responsibilities

 

The International Covenant on Civil and Political Rights was adopted by Victoria in the Charter of Human Rights and Responsibilities, which includes 20 human rights or freedoms. Some limitations apply. Public authorities must comply with the Charter as they perform their duties. Complaints are made to the Victorian Ombudsman.

Introduction

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) commenced in full force on 1 January 2008. Victoria was the first Australian state to establish a charter explicitly protecting human rights. The ACT has similar human rights legislation (the Human Rights Act 2004 (ACT)).

The Charter provides a comprehensive framework for the protection and promotion of human rights in Victoria and is targeted at the conduct of “public authorities”. It influences the legal environment within which all laws, including the EO Act and RRTA, are interpreted and applied.

Charter rights

The Charter protects a variety of democratic rights that are contained in the International Covenant on Civil and Political Rights 1966 (“ICCPR”).

The 20 Charter Act rights include “freedoms” that reflect traditional civil liberties, “substantive rights” that reflect human autonomy and dignity, and “procedural rights” that apply to judicial and legal processes:

Freedoms:

freedom from forced work (s 11);

freedom of movement (s 12);

freedom of thought, conscience, religion and belief (s 14);

freedom of expression (s 15); and

freedom of association and peaceful assembly (s 16).

Substantive rights:

rights to recognition and equality before the law (s 8);

right to life (s 9);

right to protection from torture and cruel, inhuman or degrading treatment (s 10);

right to privacy and reputation (s 13);

right to protection of families and children (s 17);

right to take part in public life, to vote and to be elected (s 18);

cultural rights (s 19);

property rights (s 20);

right to liberty and security of a person (s 21); and

right to humane treatment when deprived of liberty (s 22).

Procedural rights:

rights of children in the criminal process (s 23);

right to a fair hearing (s 24);

rights in criminal proceedings (s 25);

right not to be tried or punished more than once (s 26); and

rights in relation to retrospective criminal laws (s 27).

Limitations

Under the Charter (s 7), a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society.

A decision about whether a human right may be limited needs to take into account all relevant factors, including:

the nature of the right;

the importance of the purpose of the limitation;

the nature and extent of the limitation;

the relationship between the limitation and its purpose; and

any less restrictive means reasonably available to achieve the purpose sought by the limitation.

Therefore, the rights set out in the Charter are not absolute – they can sometimes be limited or balanced with competing rights and public interests. However, any limit on rights must have a clear legal basis and must be reasonable and proportionate in the circumstances.

Obligations of public authorities: a duty of compliance

A public authority’s duty of compliance is contained in the Charter (s 38). The Charter imposes an obligation on “public authorities” (defined in s 4) to act in a way that is compatible with human rights and to give proper consideration to relevant human rights in their decision-making. This means that public authorities (including private bodies performing public functions on behalf of government under contract) must approach the development of policies and execution of functions in a manner that is compatible with the human rights in the Charter.

Complaints about non-compliance

The Victorian Ombudsman has the power to conduct enquiries and investigations of complaints against public authorities that relate to administrative action by a government agency that has affected a person’s human rights. For more information visit www.ombudsman.vic.gov.au.

The Victorian Ombudsman does not generally handle complaints about police conduct. Complaints about possible police misconduct can be made to the Independent Broad-based Anti-corruption Commission on 1300 735 135 or go to www.ibac.vic.gov.au.

Statements of compatibility

A member of parliament seeking to introduce a Bill into parliament must provide an accompanying statement of compatibility. This statement must outline whether, in the member’s opinion, the Bill is compatible with human rights and – if any part of the Bill is incompatible with human rights – the nature and extent of the incompatibility (s 28).

A parliamentary committee, the Scrutiny of Acts and Regulations Committee, considers any Bill introduced into parliament and reports to parliament about whether the Bill is incompatible with human rights (s 30). The committee publicises its comments in an Alert Digest.

Failure to comply with the requirements in section 28 of the Charter does not affect the validity, operation or enforcement of an Act that is passed (s 29). The Charter therefore preserves parliamentary sovereignty. Although statements of compatibility must accompany all Bills, the Victorian Parliament retains the discretion to pass laws that are not compatible with the Charter.

Rights-compatible interpretation of laws

Courts and tribunals are required to interpret all statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistently with their purpose (s 32). A rights-compatible interpretation is required even where there is no ambiguity in a provision’s wording.

International law and relevant judgments of domestic, foreign and international courts and tribunals may be considered in interpreting a statutory provision.

Declarations of inconsistent interpretation

The Supreme Court may make a declaration of inconsistent interpretation when the court considers that it is not possible to interpret a legislative provision consistently with a human right (s 36). The Supreme Court must provide a copy of a declaration of inconsistent interpretation to the Attorney-General. The VEOHRC and the Attorney-General must be notified when the Supreme Court is considering making a declaration and may make submissions on the exercise of the court’s power to make a declaration.

The Attorney-General is required to give a copy of a declaration to the minister responsible for administering the statutory provision in respect of which the declaration was made. The minister must prepare a written response, to be laid before each House of Parliament and published in the Government Gazette (s 37).

A declaration of inconsistent interpretation will not affect the validity, operation or enforcement of statutory provisions in respect of which declarations are made or give rise to any legal right or civil cause of action (s 36).

At the time of writing (June 2015), there has only been one declaration of inconsistent interpretation, in R v Momcilovic (2010) 265 ALR 751 made by the Victorian Court of Appeal. However, on appeal, the High Court in Momcilovic v The Queen (2011) 245 CLR 1 held that either the declaration was invalid or was valid but should not have been made, and the majority (5:2) set aside the declaration. While a majority (4:3) held that the declaration was valid, it is unclear how the Supreme Court will now approach section 36 following this decision.

Override declarations

In exceptional circumstances, parliament may expressly declare that a law has effect despite being incompatible with a human right: this is called an “override declaration” (s 31).

Parliament must explain the exceptional circumstances justifying an override declaration. Examples of circumstances that could trigger override declarations include threats to national security, or a state of emergency threatening the safety and welfare of the people of Victoria. Override declarations acknowledge that a Bill or Act contains provisions that limit human rights, but stipulate that it is the intention of parliament that this should be permitted.

Where there is an override declaration in place, the Supreme Court is unable to make a declaration of inconsistent interpretation, and conduct of public authorities authorised by the override provision cannot be regarded as being in breach of the Charter. Override declarations may only operate for a maximum period of five years. There is, however, no limit on the number of times parliament can re-enact an override declaration.

At the time of writing (June 2015), there have only been two override declarations. The first related to the Legal Profession Uniform Law Application Bill 2013 and the second related to the Corrections Amendment (Parole) Bill 2014.

Right to intervene – VEOHRC and the Attorney-General

The VEOHRC has a right to intervene in any proceeding before a court or tribunal in which a question arises in relation to the application of the Charter or its implications for the interpretation of another statutory provision (s 40). The Attorney-General has the same right of intervention (s 34).

The VEOHRC’s legal submissions under the Charter can be viewed at www.humanrightscommission.vic.gov.au under “Submissions”.

Courts, tribunals and the Charter

There is no ability to complain about an alleged breach of the Charter directly to the courts as an independent cause of action in its own right. However, if a person has a right to seek any relief or remedy that exists outside the Charter in respect of an act or decision of a public authority, they may seek it on a ground of unlawfulness arising because of the Charter.

A person is not entitled to an award of damages due to a breach of the Charter. This does not affect any right that a person has to seek any relief or remedy that exists outside the Charter (s 39).

This means that courts and tribunals can consider human rights obligations in cases brought before them where a person has another legal action available to them arising from an unlawful act or decision of a public authority (e.g. judicial review of an administrative decision, cases where a person is defending a charge of a claim of discrimination in VCAT). The courts and tribunals cannot award compensation for any Charter breach they find and instead, any relief or remedy must arise from the other legal action they have brought.

For example, if a person brings a discrimination claim against a public authority alleging a breach of the EO Act, they may also claim that the same conduct is an unreasonable limitation on their human rights in the Charter. If VCAT upheld these claims, they might award compensation for breach of the EO Act and/or make a declaration that there has been a breach of the Charter, because those are remedies available under section 125 of the EO Act and section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). See, for example, Slattery v Manningham City Council (Human Rights) [2014] VCAT 1442.

Review of the Charter

The Charter required the Attorney-General to conduct a review of the Charter after the first four years of its operation and to report to parliament by 1 October 2011 (s 44). The review had to consider:

whether additional human rights should be included in the Charter (such as rights under the United Nations’ International Covenant on Economic, Social and Cultural Rights 1966, the Convention on the Rights of the Child 1989, the Convention on the Elimination of All Forms of Discrimination against Women 1979 and the right to self-determination);

whether the Charter should require regular auditing of public authorities to assess compliance with human rights; and

whether further provision should be made with respect to proceedings that may be brought or remedies that may be awarded under the Charter.

In May 2011, the four-year review of the Charter was undertaken by the Scrutiny of Acts and Regulations Committee, a multi-party committee within the Victorian Parliament. The final report of the review of the Charter was tabled in parliament on 14 September 2011. The government’s response was tabled on Wednesday 14 March 2012. Both can be found by searching the Victorian Parliament website at www.parliament.vic.gov.au.

The Charter also requires that another review be carried out on the Charter’s fifth to eighth years of operation and that a report must be given to parliament by 1 October 2015 (s 45). On 2 March 2015, the eight-year review of the Charter was announced and that Michael Brett Young (CEO of the Law Institute of Victoria until 2014 and a former managing partner at Maurice Blackburn) would be the independent reviewer. The terms of reference for the review set out that the review would focus on ensuring the Charter was robust and effective. In particular, the review will consider:

ways to enhance the effectiveness of the Charter, including but not limited to:

reviewing the submissions to the four-year review and the Scrutiny of Acts and Regulations Committee report,

the functions of the VEOHRC under the Charter and the Victorian Ombudsman under the Ombudman Act 1973 (Vic) especially with regards to human rights complaints,

the effectiveness of the Scrutiny of Acts and Regulations Committee in its parliamentary scrutiny role,

the development of a human rights culture in Victoria, particularly within the public sector,

the application of the Charter to non-state entities when they provide state-funded services;

any desirable amendments to improve the operation of the Charter, including, but not limited to:

clarifying the provisions regarding public authorities, including the identification of public authorities and the scope of their human rights obligations,

clarifying the provisions relating to legal proceedings and remedies,

clarifying the role of human rights in statutory construction,

clarifying the role of the proportionality test in section 7(2), in particular as it relates to statutory construction and the obligations of public authorities,

the need for the provision of an override declaration by parliament under section 31,

the effectiveness of the declaration of inconsistent interpretation under section 35,

the usefulness of the notification provisions including under section 35,

any other desirable amendments;

a recommendation as to whether any further review of the Charter is necessary.

At the time of writing (June 2015), the eight-year review had not been concluded and consultation with key stakeholders and members of the public was ongoing. Brett Young is due to report to the Attorney-General by 1 September 2015. Information about the review and copies of submissions can be accessed at www.justice.vic.gov.au.

Information on both Charter reviews can also be found on the VEOHRC’s website (www.humanrightscommission.vic.gov.au).