The SARC review of the Victorian Charter of Rights and Responsibilities – profoundly disappointing

by Sarah Joseph, Julie Debeljak and Adam Fletcher

The Scrutiny of Acts and Regulations Committee of the Victorian Parliament today tabled its report after a review of the Victorian Charter of Human Rights and Responsibilities Act 2006. In essence, the majority of the Committee recommends stripping most of the operative provisions from the Charter, leaving only the Executive and Parliamentary scrutiny functions. The whole point of a Charter or Bill of Rights is to improve transparency and accountability regarding the human rights impact of government actions. The Committee’s proposal would remove layers of accountability for the Executive, Parliament and public authorities in Victoria, sending the message that the Charter is not to be taken seriously.

The Committee’s recommendation (Recommendation 35) to remove the judiciary’s independent oversight role is regrettable. For the Executive and Parliament to commit to a statement of fundamental rights, but to deny independent scrutiny of their actions, risks rendering the document pointless. A key reason to protect human rights is to ensure that minorities, the unpopular, and the vulnerable can be heard, and the majoritarian-driven executive and parliament cannot guarantee this. Moreover, the judiciary is not supreme under the current Charter: the Parliament can override its decisions and, in the case of a Declaration of Inconsistent Interpretation, ignore them.

The proposal, again in Recommendation 35, to remove all obligations on public authorities in s.38 and to repeal the (already weak) cause of action in s.39 further neuters the incentive for the rights-respecting administration of government. The protection of rights is largely about protecting the individual against unjustified government decision making. If the State has no human rights obligations when making decisions that impact on the individual, what is the point of having rights?

The Committee made other recommendations, some of which would clearly only apply if Recommendation 35 was not adopted in full. And indeed, a minority recommended that the judicial role be retained. On the positive side, the Committee recommended:

• Consideration of the addition of more ICCPR rights (but not rights from other treaties, nor a right to self-determination);
• The VEOHRC’s by-invitation-only power to audit public authorities for human rights compliance should be retained (but not with the addition of a proposed dispute resolution power).
• Draft statements of compatibility and human rights certificates should be made public when Exposure Drafts of Bills or legislative instruments are circulated, and revised if necessary after Parliamentary amendments.

Nevertheless, even if the Government accepts the minority’s recommendation to retain Part 3 of the Charter with modifications, the Charter still risks being decimated. Some of the more problematic recommendations are surveyed below.

The Committee says Statements of Compatibility, which are currently required to be tabled in Parliament for all legislation introduced to Parliament, should be required “only for provisions of Bills that limit a human right” (see Recommendation 11). But who is to determine whether provisions limit a human right, and where is the transparency for that reasoning process? Under this recommendation, the public would not necessarily ever know.

Section 39 currently grants a cause of action for breaches of the Charter by a public authority if a person is concurrently seeking a legal remedy on another basis. In our Submission to the Charter Review, we called for an independent cause of action for violations of human rights, as exists in the UK and the ACT. After all, an effective remedy is integral to rights protection and accountability. The Committee did not accept this suggestion – in fact it has recommended that the current piggyback cause of action be removed, and causes of action only be available if expressly authorised in another statute.

Furthermore, it has recommended that the obligation on public authorities be watered down. Section 38 currently gives individuals both a substantive and a procedural guarantee that public authorities will respect their human rights in dealing with them and making decisions which affect them. However, the Committee’s Recommendation 23 would reduce this to a mere procedural right that public authorities give consideration to human rights when making decisions: there would be no obligation on public authorities, having considered the rights, to go ahead and breach human rights anyway.

The Committee recommends that the interpretive sections (ss 7 and 32) of the Charter be simplified so that no reference to “comparative jurisprudence” is required to understand them. It is surely debatable whether the removal of criteria from s. 7, which are all designed to help public servants and judges decide if the limit to a human right is reasonable, makes the task of assessment harder or in fact easier. Section 32 is primarily aimed at judges, who will likely consider comparative jurisprudence anyway, so it is a curious recommendation. Comparative jurisprudence is in fact a very useful aid for judges in attempting to interpret statutes in a human rights compatible manner. The Committee’s recommendations seem to be designed to encourage the interpretation of human rights in Victoria in a vacuum.

The Committee recommends that s 32 of the Charter be limited to “traditional approaches to interpretation” (see Recommendation 24). Yet we can point to many instances in which “traditional approaches to interpretation” have badly failed in protecting human rights, Al Kateb v Godwin being the prime example. The Consultation Committee Report, which led to the enactment of the Charter in the first place, explained the need for a more robust approach to human rights-compatible interpretation than “traditional interpretation” – this seems to have been forgotten or overlooked in the present report (and also by the Court of Appeal in Momcilovic).

All in all, the Committee appears to want to go back to the days when Victorians had very little legal redress with regard to human rights abuses. As it stands, the Charter does not allow the Courts to overrule Parliament, nor does it allow individuals to institute civil proceedings for a breach of their human rights. What it does do is provide an extra layer of transparency and accountability in the hope that this will encourage the Government to act consistently with human rights. Yet the Committee recommends that the Government reduce this relatively low level of independent scrutiny, and reduce the obligations and independent scrutiny of public authorities; any reasonable person must question its motives. Having said that, we remain optimistic after the Premier’s media release yesterday, which makes it clear that the Committee’s views “are not necessarily those of the Coalition Government.”

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