by Sarah Joseph
On 14 September, the Scrutiny of Acts and Regulations Committee (SARC) of the Victorian Parliament delivered its review of the state’s Charter of Human Rights and Responsibilities. While SARC does not recommend repealing the Charter, the profoundly disappointing report includes a recommendation that the Charter be gutted so as to deprive it of its modest legal teeth. The majority recommended renaming it the Human Rights (Parliamentary Scrutiny) Act and removing most of the operative provisions, leaving only the provisions regarding legislative and executive scrutiny of statutes prior to their passage through Parliament. The courts’ role would be removed, as would obligations requiring public authorities to act compatibly with the rights recognised in the Charter.
This recommendation, for a dramatic denuding of our human rights legislation, is not based on evidence of its need. In the three and a half years of its full operation, the Charter has not clogged our courts or laid the table for a lawyers’ picnic, or been used by dastardly villains to escape punishment on dubious technicalities. There is little evidence of any huge costs entailed in the implementation of the Charter. As correctly noted by the Human Rights Law Centre, costs identified by the government ($13.5 million over five years) are a small fraction of the cost of holding just one Grand Prix: that truly is a bargain! Furthermore, there is ample evidence that it generates beneficial outcomes for particular vulnerable peoples, for example in the mental health arena and the public housing sector.
The SARC majority reasoned that “substantial difficulties” existed regarding the meaning and operation of key Charter provisions, such as the section on limitations to rights (s.7) and the section on the interpretation of laws in a rights compatible manner (s. 32). Certainly, SARC received many submissions, including from the Castan Centre, recommending changes and clarifications to its provisions. The alleged difficulties are not insurmountable. Rather than drown the baby in the bathwater, an alternative would be to amend and clarify the relevant sections, as recommended by the SARC minority. Or even accept the clarifications of those sections delivered last week by the High Court in its first major examination of the Charter, Momcilovic v R. It does seem that the SARC majority used constructive criticisms of the Charter submitted to the review in good faith as sledgehammers to destroy the Charter (so that, by SARC’s own admission, it wouldn’t be a “Charter” anymore), rather than take on board the reform suggestions attached to those criticisms.
The majority also resorted to the mantra-like statement that involvement by the courts in human rights matters might drag them into unedifying political issues. This is despite any evidence of hugely political controversies regarding the Charter in its years of operation, and despite the fact that the courts of every other Western democracy besides Australia routinely exercise significant human rights jurisdiction. Indeed, this author is unaware of any other democratic jurisdiction that has taken the step of reversing and reducing human rights protection in so dramatic a fashion as is proposed by the SARC majority.
Most concerning of all is that the report hardly even pretends that parliamentary and executive scrutiny alone will provide for strong protection of human rights. For example, the SARC majority concedes that the unshackling of the legislative scrutiny regime from the possibility of subsequent court proceedings will mean that “drafters of legislation may see less reason to seek external legal advice” over the human rights compatibility of legislation. But this is touted as a good thing (!) because it will avoid costs and delays in the consideration of human rights during the drafting stage. That may be true, but it surely increases the likelihood that the legislation will not be compatible with human rights, and that the lack of compatibility will not be acknowledged or even recognised in the scrutiny process. It is hardly the statement of a body that is seriously interested in ensuring that human rights are meaningfully protected in Victoria.
On Wednesday afternoon the Premier announced that the SARC report did not necessarily reflect the views of his government. Possible (and welcome) disagreement between Bailleau and the SARC majority was also reported in the Sunday Age. The government will take the report into consideration and prepare a response within six months. It is fervently hoped that the government repudiates this unsatisfactory report and decides to retain and strengthen the Charter.