Second Time’s the Charm – 2015 Review of the Victorian Charter

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myviews.justice.vic.gov.au

By Adam Fletcher

Late last month, Victorian Attorney-General Martin Pakula tabled the Report from the second review of the State’s Charter of Human Rights and Responsibilities Act 2006 (the Charter).

Thankfully, unlike the previous scheduled review in 2011 (conducted by a parliamentary committee), this one does not recommend the Charter be gutted. On the contrary, it recommends that Victoria catch up with the ACT and other comparable jurisdictions by introducing an independent cause of action for breaches of human rights (as opposed to being able to raise Charter issues only in conjunction with other legal claims). This is a sensible move which we recommended in the Castan Centre submissions to both this and the previous Review. As the independent reviewer, Michael Brett Young, puts it (in Chapter 6 of his report):

In a few cases at the pointy end of the regulatory pyramid, the Charter needs to provide for someone to decide whether there has been a breach of a person’s human rights and whether to order an appropriate remedy. I propose a remedies provision modelled on section 40C of the Human Rights Act 2004 (ACT) [that] would provide a clear framework to achieve these outcomes.

For readers who might be wondering how Victoria even ended up with a Charter which doesn’t allow people to sue directly for violations of their human rights, here’s an article which provides some background. Essentially, it was a compromise necessary to placate those (on both sides of politics) who believed a Charter should entail minimal involvement by the courts, lest Parliament’s supreme authority be diluted (or even questioned).

Young also seeks to make remedies more accessible, by giving the Victorian Civil and Administrative Tribunal jurisdiction to determine whether people’s Charter rights have been breached and giving the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) the power to resolve Charter disputes, as both of these bodies already do in discrimination cases under the Equal Opportunity Act 2010 (see Chapter 4 of the Review Report). Given the difficulty and expense of bringing a claim in a superior court, this would be a significant step forward for access to justice.

As Young points out, we know from national experience with OH&S, privacy and discrimination law that behaviour is unlikely to change without the likelihood of consequences, and behaviour change in government administration is really what a Charter is all about. The work done to date to train Public Authorities (broadly speaking, government agencies and those performing governmental functions) has certainly raised awareness of human rights obligations, but according to Young the Charter has suffered a ‘deprioritisation’ within Government over the last few years (see Chapter 1). Without Ministers and senior officials publicly committing to human rights, and making clear their expectation that public servants should do the same, a human rights culture can (and will) wither on the vine.

In addition, the main source of expertise within the Victorian Government on Charter issues, the Human Rights Unit in the Department of Justice, has been running on the smell of an oily rag for years now. When surveyed by Young, it had only 1.7 full-time equivalent staff to advise the whole Victorian Public Sector (of around 217,000 employees) on its Charter obligations (including on how to draft compatible legislation). Citing submissions like the Castan Centre’s own, Young recommends that the Human Rights Unit’s capacity be boosted so that it can restore its crucial advice and training functions.

Young adds that VEOHRC, which is currently responsible for most Charter-based education, ‘does not have sufficient capacity for this broader educative role across government, but has tried to fill a gap in recent years.’ From first-hand experience, I can attest to the fact that VEOHRC stretches its resources for this task a very long way. Clearly though, a serious approach to further development of a human rights culture across Victoria will require a boost in resourcing for VEOHRC and the Human Rights Unit, as well as a ‘reprioritisation’ at the most senior levels of government. One of the most important educative tasks identified by the Review is to inform people as to how their rights may be limited by bodies such as Local Councils, to ensure their expectations are in line with the law (see Chapter 5). Young also recommends that VEOHRC be empowered (and appropriately resourced) to require Public Authorities to provide relevant information and to mediate human rights disputes, which would provide a much more cost-effective option for those who might otherwise have to resort to litigation (see Chapter 3). One caveat is that those seeking financial remedies may well still need to proceed in the courts, because VEOHRC will not have the power to award compensation.

Young’s other constructive recommendations for the Charter include clarification of what exactly constitutes a Public Authority (see Chapter 2) and how the courts should approach the interpretation of other statutes under the Charter after the confusing Momcilovic High Court decision (see Chapter 5 and this detailed submission by leading expert and Castan Centre Deputy Director Dr Julie Debeljak). Although these recommendations are not exactly what we called for in our submissions, their implementation would still constitute progress in this vexed legal area.

Readers may be aware that the Charter is based on a ‘dialogue model,’ in which the courts provide feedback to Parliament about the operation of its laws. Another, less well‑recognised dialogue under the Charter is between Parliament and the Executive. This involves a parliamentary committee (the Scrutiny of Acts and Regulations Committee) reviewing legislation before it is enacted to inform those voting on it of any implications it may have for people’s Charter rights. In Chapter 6 of his Report, Young makes several welcome recommendations to strengthen this process, including giving the committee more time and training to deal with its workload. After all, the ideal situation is one in which legislation (and administration under it) ensures human rights are not breached so the courts do not need to get involved.

Finally, Young recommends another review be conducted in four years’ time, even though only two reviews were prescribed when the Charter was adopted (see Chapter 8). As he points out, the Charter is ‘foundational to the work of Government and its relationship with the community.’ We should therefore continue to reflect on how it is operating.

At 267 pages, this latest Charter Review Report obviously contains an awful lot of detail which I am not able to convey here. Even from this brief overview though, I hope it is apparent that this Review has been far more constructive than the last one. We might quibble with some aspects of it (eg failing to recommend that certain fundamental rights be excluded from the limitations provision in section 7(2) of the Charter), but overall the Castan Centre welcomes the Report. It is a cogent and accessible document which provides a practical blueprint for the Victorian Government to get the Charter project back on the rails after a lamentable period of neglect. In fact, if Young’s major recommendations are implemented, the Charter will be stronger than ever.

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