The Baillieu government has committed to retaining the Victorian Charter of Rights and Responsibilities in its official response to a review of that law. That response is an apparent rejection of the key recommendations of the review body, the Scrutiny of Acts and Regulations Committee (SARC).
The SARC Committee had split along party lines, with the coalition majority recommending that the Charter be profoundly weakened. In particular, the SARC majority recommended that the obligations upon public authorities to act compatibly with the Charter be removed (in s 38), along with any role for oversight by the courts. That is, the SARC majority recommended the extraction of the Charter’s modest legal teeth.
In contrast, the government explicitly stated in its response that it “believes that there is an ongoing place for the courts”. However, it has delayed outlining the role that it thinks the courts should actually have. Just before the release of the SARC review, two important cases on the Charter were decided, Sudi in the Court of Appeal and Momcilovic in the High Court. These decisions have important implications for the operation of the Charter as it is currently drafted, including the interpretative role of the courts, the role of lower courts, and the application of s. 7, which specifies limitations on Charter rights. The SARC Committee did not have sufficient time to take these cases into account before releasing its review a week later. Therefore, the government is seeking legal advice on how these court decisions affect the workings of the Charter before finalising its conclusions. For example, the government may wish to alter the wording of the Charter to make it clear that the Victorian Civil and Administrative Tribunal (VCAT) does in fact have the power to make decisions under s.38 of the Charter, contrary to the decision in Sudi.
While SARC only had a week to respond to those cases, the government has had six months. Why hasn’t such legal advice been sought already? The government explains that it has had “limited opportunity to observe the practical effect of those decisions”. One suspects however, that the real reason was that Cabinet was split over whether to adopt SARC’s proposal to cut the courts out of the process (in which case the effect of the two cases would have been irrelevant). With the apparent promise to retain some sort of role for courts, it appears that Premier Ted Baillieu and the more moderate members of the government have prevailed over the wishes of hardliners such as the Attorney General, Robert Clark. For now.
While the focus of debate has been on the role of courts under the Charter, there are other notable features in the government’s response. Unfortunately, it has adopted the SARC Committee’s recommendation against the creation of an independent cause of action for breach of the Charter. Instead, the confusing s.39 action will be retained, whereby one can only instigate legal proceedings for breach of the Charter if that action can be piggybacked on another cause of action.
The government has accepted the SARC Committee’s recommendation that economic social and cultural rights, specific women’s rights and children’s rights, and the right of self determination, remain excluded from the Charter. It will however seek legal advice over whether further civil and political rights, such as the right to compensation for a wrongful conviction and the right to birth registration, should be added.
The SARC Committee had also recommended that the government consider amending s. 48 of the Charter, which dictates that the Charter has no effect on laws relating to abortion. Interestingly, the government rejected that recommendation, leaving s.48 as it is. Section 48 has been criticised by religious groups, such as the Australian Christian Lobby, as it meant the Charter was inapplicable to the passage of Victoria’s Abortion Law Reform Act of 2008. Yet Rob Hulls, the Charter’s architect, has claimed that the clause came about after lobbying by the Catholic Church, which presumably feared that Charter rights would lean more towards pro choice than pro life. A conservative government has now upheld Hulls’ decision.
Most promisingly, the government has committed to strengthening the parliamentary scrutiny of laws under the Charter. Bills presented to Parliament must be accompanied by a statement of compatibility, which sets out whether the Bill complies or does not comply with the Charter. The government agrees with SARC that such scrutiny should be extended to amendments to Bills which arise after a statement of compatibility has been prepared. It has also committed to increasing transparency in the process of drafting these statements of compatibility.
The government also agreed with the SARC recommendation to delete the override power in s.31 of the Charter. That provision allows the Parliament to declare the Charter inapplicable to a particular piece of legislation. Section 31 serves little purpose. Parliament has always retained the power to enact laws which are incompatible with the Charter. It does not need any express power to override it.
That last point is worth re-emphasising. Parliament retains ultimate power over human rights under this Charter. Therefore, the constant criticisms that the Charter is somehow “undemocratic” as it passes power from elected parliaments to unelected judges are, quite simply, wrong. And it now seems that the Baillieu government, despite containing many Charter critics amongst its Ministers and backbenchers, has finally accepted the truth in that statement.