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Tasmania: Charter of Rights

Legal Legal
Friday 14 December, 2012

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Submission in
response to the Tasmanian Law Reform Institute’s Issues Paper: A
Charter of Rights for Tasmania?

15
December 2006


INTRODUCTION

  1. The
    Human Rights and Equal Opportunity Commission (‘the Commission’)
    makes this submission to the Tasmania Law Reform Institute in response to its
    issues paper titled A Charter of Rights for
    Tasmania.

  2. The
    Commission believes that a Tasmanian Charter of Rights could, depending on its
    form and content, significantly improve human rights protection in Tasmania.

  3. While
    the human rights of people within Australia’s jurisdiction currently
    receive some protection from the common law, the Australian Constitution and
    anti-discrimination legislation, the Commission believes there are significant
    gaps in the existing protection of human
    rights.[1]

  4. Incorporating
    Australia’s international human rights obligations into a Tasmanian
    Charter of Rights would set out the basic minimum standards that the Government
    and public authorities must protect in the legislative process, and in the
    administration of law.

WHAT
FORM SHOULD A CHARTER OF RIGHTS TAKE?

  1. There
    are various ways in which a Charter of Rights might be incorporated into
    Australian law, including by Constitutional amendment or by statute. The United
    Kingdom (UK), New Zealand, the Australian Capital Territory (ACT), and Victoria
    have all introduced statutory charter of rights.

  2. The
    Commission believes that the statutory model is the most appropriate. The
    Commission notes that the Tasmanian Government has indicated to the Tasmanian
    Law Reform Institute that if a Charter of Rights is enacted, the recommended
    model should preserve parliamentary sovereignty. The Commission is of the view
    that a statutory Charter of Rights best preserves parliamentary sovereignty.

  3. The
    Commission believes a statutory Charter of Rights could significantly improve
    human rights protection in Tasmania by:

    • Creating
      a dialogue between the three arms of government – the Courts, the
      Executive and the Legislature – about human rights protection in
      Tasmania;
    • Fostering
      a culture of human rights in the law and policy making process and in the
      broader community;
    • Preserving
      parliamentary sovereignty by making sure that Parliament has the ‘last
      say’ about whether legislation complies with a Charter of
      Rights.

  4. The
    Commission considers that the Charter should contain a provision requiring
    proposed amendments to the Charter to be scrutinised by a parliamentary
    committee. Such a provision would not prevent future Parliaments amending the
    Charter but it would signal the Government’s commitment to the protection
    of human rights and its intention that the Charter not be amended without
    careful
    consideration.

WHAT
RIGHTS SHOULD BE PROTECTED?

  1. Australia
    has ratified the International Covenant on
    Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and
    Cultural Rights (ICESCR). The
    ICCPR provides that states must take steps to give effect to ICCPR rights and to
    ensure that victims of violations of the ICCPR have an effective
    remedy.[2] The ICESCR provides that states must
    take steps ‘to the maximum of [their] available resources’ to
    achieve the ‘progressive realisation’ of ICESCR
    rights.[3]

  2. The
    Commission believes that as a starting point a Tasmanian Charter of Rights
    should protect the rights set out in ICCPR and take steps to achieve the
    progressive realisation of the rights set out in the
    ICESCR.[4]

    11. The Human Rights and Equal Opportunity Commission
    Act 1986 (Cth) recognises that human rights are
    indivisible.[5] Protecting economic and social
    rights create the conditions in which political and civil rights become
    meaningful. For example, in order to protect the right to life you need to
    protect people’s right to food and adequate
    healthcare.

  1. The
    Commission believes that, as a matter of principle, economic, social and
    cultural rights and civil and political rights should be treated as indivisible
    and interdependent. However, the Commission acknowledges there may be practical
    concerns about vesting responsibility in the courts to adjudicate on the
    implementation of economic, social and cultural rights, as political and
    economic considerations may be involved.

  2. Domestic
    charters of rights in Victoria, the ACT, the United Kingdom, New Zealand and
    Canada incorporate ICCPR rights. So far, with the exception of the South Africa,
    domestic charters focus on expressly protecting civil and political rights, not
    economic social and cultural rights.[6]

  3. While
    there may be concerns about the justiciability of economic, social and cultural
    rights, a Tasmanian Charter of Rights could recognise economic, social and
    cultural rights without involving the courts. For example, a Tasmanian Charter
    of Rights could require Parliament to consider the impact of new laws and
    policies on economic, social and cultural rights in its pre-legislative
    processes.

  4. Instead
    of adopting an ‘all or nothing’ approach to the question of
    protecting economic, social and cultural rights, the Commission encourages the
    Tasmanian Law Reform Institute to consider all options for protecting economic,
    social and cultural rights.

WHO
SHOULD A CHARTER OF RIGHTS APPLY TO?

The
Charter of Rights should protect all people.

  1. The
    Commission believes that human rights are for everybody, everywhere, all the
    time. Every human being has human rights. A Charter of Rights
    should protect the human rights of every person in Tasmania’s
    jurisdiction, regardless of their immigration status.

  2. The
    Commission believes a Tasmanian Charter of Rights should expressly state that
    corporations do not have human rights.[7] Conceptually the ‘rights’ of corporations are distinct from human
    rights. In
    principle the purpose of human rights is to protect the inherent dignity of all
    members of the human family.[8] In practice
    protecting corporations’ human rights may give corporations a vehicle to
    advance commercial
    interests.[9]

Public
authorities should be bound by the Charter of Rights.

  1. The Commission believes a Tasmanian Charter of Rights should state it is unlawful
    for any public authority to act in a way that is inconsistent with the Charter. [10] The Charter should expressly state that an
    act by a public authority is not unlawful if:

    1. as
      a result of one or more of the provisions of the primary legislation the
      authority could not have acted differently; or
    2. in
      the case of one or more provisions of, or made under, primary legislation which
      can not be read or given effect to in a way which is compatible with Charter of
      Rights, the authority’s actions were to give effect to or enforce those
      provisions.[11]
  1. A
    Tasmanian Charter of Rights should apply to any body which performs a public
    function with the exception of the legislature which retains the right to make
    laws which are inconsistent with the rights protected under the Charter. The
    definition of a public authority should not include proceedings in both houses
    of Parliament or the actions of judicial officers in developing the common
    law.

  2. The
    interaction between the public sector and the private sector means that many
    private companies now undertake public functions. In this context the definition
    of a ‘pubic authority’ should ‘look at what is being done, not
    who is doing it’.[12]

  3. The
    definition of a ‘public authority’ should include government
    departments, statutory authorities, local government and all persons or bodies
    that perform public functions on behalf of the Government, when they are
    performing those public functions.

  4. Some
    commentators have argued that a Charter of Rights should bind corporations and
    private actors. The Commission notes the enormous resource implications of
    ensuring that the actions of all corporations and private citizens act in
    accordance with a Tasmanian Charter of Rights. The Commission believes the
    Charter should focus on the actions of Government and public authorities. It may
    be appropriate to revisit the question of whether a Charter should apply to
    corporations and private citizens in a review of the Charter’s operation.

CAN
THE RIGHTS IN A CHARTER OF RIGHTS EVER BE LIMITED?

  1. Most
    human rights are not absolute. At times, some individual human rights may need
    to be limited in the interests of national security, public order or general
    welfare in a democratic society. However, other human rights – like the
    right to life, the right to be free from torture and the right not to be held in
    slavery – are so basic that they should never be restricted or suspended.

  2. There
    are a number of different ways which a Tasmanian Charter of Rights could
    recognise the fact that sometimes it may be necessary to restrict certain
    rights:

    • A
      reasonable limits clause: under a reasonable limits clause the rights
      protected by the Charter would be subject to ‘such reasonable limits
      prescribed by law as can be demonstrably justified in a free and democratic
      society’;
    • An
      ‘override clause’: under an override clause parliament can
      state that a statute is intended to operate notwithstanding the fact that it is
      inconsistent with the rights protected by the Charter.
  3. The Charter of Human Rights and Responsibilities
    2006 (Vic) (the Victorian
    Charter) includes a reasonable limits
    clause and an override clause.[13]

  4. A
    Charter of Rights could also declare that certain rights – for example the
    right to life or the right not to be subject to torture – are
    non-derogable. ‘Non-derogable rights’ could not be restricted or
    infringed in any circumstances.

  5. The
    Commission recognises that in certain circumstances some rights will have to be
    balanced against other rights and that, in extraordinary circumstances, it may
    be necessary to suspend or restrict certain rights.

  6. If
    a reasonable limits clause was introduced the Commission considers that that
    clause should require the Government to take into account all relevant factors
    including:

    1. What
      is the nature of the right that is limited;
    2. What
      is purpose of limiting the right;
    3. What
      is the nature and extent of the limitation;
    4. Whether
      the limitation is necessary to achieve the purpose;
    5. Whether
      any less restrictive means is reasonably available to achieve the relevant
      purpose.[14]

HOW
SHOULD THE CHARTER OF RIGHTS IMPACT ON THE LAW AND POLICY MAKING PROCESS?

  1. Human
    rights should play a vital role in the law and policy making process that leads
    up to the enactment of legislation. The best way to do this is to make sure that
    both the Executive and the Legislature consider the human rights impact of
    proposed policies and laws.

  2. Strengthening
    the mechanisms of parliamentary scrutiny will increase parliamentary
    accountability and transparency in relation to human rights issues and assist in
    the development of a strong parliamentary culture of human rights compliance. It
    will also contribute to the creation of a robust human rights culture within the
    broader community.

A Charter of Rights
should establish a Parliamentary Standing Committee on Human Rights.

  1. Committees
    play a vital role in scrutinising proposed legislation and facilitating public
    debate about the human rights implications of proposed laws.

  2. A
    Tasmanian Charter of Rights should require a Parliamentary Standing
    Committee on Human Rights
    to:

    • Inquire
      whether any Bill introduced into Parliament complies with the Charter;
    • Inquire
      into questions referred to the Committee by Parliament.
  3. The
    Committee should be a joint committee to minimise partisanship and increase
    legitimacy. The Committee should also have adequate time and resources to
    properly assess the human rights implications of proposed legislation.

  4. The
    Committee should be dedicated to considering human rights issues. This enables a
    permanent committee to build expertise in analysing human rights issues and
    recognises the vital role of the Charter as a minimum standard with which
    Government legislation and policy must comply with.

A Charter of Rights
should require a human rights compatibility statement.

  1. When
    a Minister introduces a Bill to Parliament, the Tasmanian Attorney-General
    should be required to prepare a human rights
    compatibility statement which sets out the reasons why the Attorney
    believes the Bill is consistent or inconsistent with the Charter.

  2. If
    the Tasmanian Attorney-General believes that the Bill is inconsistent with the
    Charter, the Attorney-General should provide the following
    information:

    1. The
      nature of the right that is limited;
    2. What
      is the purpose of limiting the right;
    3. The
      nature and extent of the limitation;
    4. Why
      the limitation is necessary to achieve the purpose;
    5. Whether
      any less restrictive means is reasonably available to achieve the relevant
      purpose.[15]

  3. A
    Private Member’s Bill must also be accompanied a human rights compatibility statement prepared by the Member of Parliament who introduces the
    Bill.

  4. Each
    new or amended Regulation tabled in Parliament should also be accompanied by a human rights compatibility
    statement.

  5. Where
    no statement of compatibility has been made about legislation and regulations
    enacted after the Charter, the legislation will still be valid. However, the
    legislation should be subject to an automatic two year sunset clause. This would
    prevent Governments being able to circumvent the parliamentary scrutiny
    provisions and ensure that the legislation’s compatibility with the
    Charter is scrutinised at some point.
     

A Charter of Rights
should require Human Rights Impact Statements.

  1. Human
    Rights Impact Statements (HRIS) would help Parliament assess the impact
    proposed legislation may have on human rights in Tasmania.

  2. All
    submissions to Cabinet which may have ‘a direct or significant impact on
    Human Rights’ must be accompanied by a HRIS. The responsibility for preparing
    the HRIS should rest on the Department
    or Agency making the submission to Cabinet.

  3. HRIS will improve the chances of achieving a ‘whole of government’
    human rights culture because the importance of complying with human rights is
    introduced at an early stage in the law and policy making process.

A Charter of Rights
should allow for a delay in commencing certain provisions of the
Charter.

  1. The Charter should allow for a delay in introducing certain provisions of the
    Charter of Rights to allow the legislature, the executive and government
    departments time to consider how they are going to meaningfully comply with
    their obligations under the
    Charter.[16]

WHAT
ROLE SHOULD THE COURTS HAVE UNDER A CHARTER OF RIGHTS?

  1. The
    Commission believes that a Tasmanian Charter of Rights should give courts the
    power
    to:

    • Interpret
      legislation consistently with the Charter;
    • Make
      a declaration of incompatibility if legislation is incompatible with the
      Charter;
    • Hear
      and determine individual actions brought against public authorities for acting
      unlawfully under the Charter.

A Charter of Rights
should require Courts to interpret legislation consistently with human rights.

  1. The
    Tasmanian Charter of Rights should include an interpretative clause which
    provides that legislation (whether primary or subordinate legislation and
    whenever enacted), ‘so far as it is possible to do so consistently with
    their purpose’, must be interpreted in a way which is compatible with
    human rights contained in the
    Charter.[17]
  2. The
    Tasmanian Charter of Rights should state that in determining whether legislation
    is compatible with human rights the courts, where relevant, must have regard to international
    conventions and treaties which Australia has ratified and may have regard to
    other sources of international human rights
    law.[18] This helps make sure that legislation
    complies with Australia’s international human rights obligations.

A
Charter of Rights should allow the Courts to make a declaration of
incompatibility.

  1. While
    courts should not have the power to strike-down legislation that is inconsistent
    with the Tasmanian Charter of Rights, a superior court should be able to declare
    if certain laws are incompatible with the Charter.

  2. A declaration of incompatibility would not
    have any effect on the validity or continuing operation of the legislation.

  3. The
    Attorney-General and the Tasmanian Human Rights
    Commission[19] should be given notice of
    proceedings where a declaration of
    incompatibility might be made.

  4. The declaration of incompatibility should be
    tabled in Parliament. After the declaration of
    incompatibility has been tabled, it should be examined by the Human
    Rights Scrutiny Committee. Within a prescribed period after the declaration of incompatibility is
    tabled, the Committee should report to Parliament about what action the
    Parliament should take in response to the declaration.

  5. The
    Attorney-General should formally respond in writing to the declaration by either
    changing the law to make it compatible with the Charter or by explaining why the
    Government believes the law should stay the same. The Attorney-General’s
    formal response to the declaration of incompatibility should be tabled in
    Parliament within six months of the Court delivering it judgment.

Courts
should be able to provide enforceable remedies.

  1. The
    Commission believes a Tasmanian Charter of Rights should give courts the power
    to hear and determine individual actions brought against public authorities for
    acting unlawfully under the Charter. In order for this power to be meaningful
    courts should also be able to provide effective remedies.

  2. Article
    2(3) of the ICCPR provides that if a person’s rights under the ICCPR have
    been violated that person has a right to an ‘effective
    remedy’.[20] The Commission considers
    that, consistent with Article 2(3) of the ICCPR, a Tasmanian Charter should
    explicitly provide that a person who is (or would be) a victim of an act or
    decision (or a proposed act or decision) by a public authority which is unlawful
    under the Charter may bring an action to seek legal
    remedies.[21]

  1. The
    Commission recognises that, in light of the concerns about courts adjudicating
    on economic, social and cultural rights, a Tasmanian Charter may want to limit
    judicial remedies to a breach of civil and political
    rights.[22]

  2. The
    United Nations Human Rights Committee (UNHRC) has stated an ‘effective
    remedy’ requires ‘reparation to individuals whose Covenant rights
    have been violated’. The UNHRC considers that ‘reparations can
    involve restitution, rehabilitation and measures of satisfaction, such as public
    apologies, public memorials, guarantees of
    non-repetition’.[23]

  3. So
    far domestic charters have adopted different approaches to the question of what
    remedies should be available for individual breaches of civil and political
    rights and, in particular, whether the courts should have the power to award
    damages for a breach of Charter rights.

  4. The Human Rights Act 1998 (UK) provides
    courts with the power to grant therelief
    it considers ‘appropriate and just in the circumstances’, consistent
    with itspowers to grant such relief or
    remedy.[24]This power allows courts to award damages but only if such an award is
    ‘necessary to afford satisfaction’ to the
    complainant.[25] In other words, if another
    remedy can satisfy the complainant, damages should not be awarded. To date,
    there have been three awards of damages under the Human Rights Act 1998 (UK).[26]

  5. In
    contrast, the Victorian Charter expressly excludes the Court from awarding
    damages for a breach of Charter rights unless a right to damages was already
    available under an existing law.[27] This
    reflects the approach of the Victorian Human Rights Consultation Committee who
    argued that ‘removing damages from the Charter represents a balance
    between the need for a remedy and not imposing potentially significant
    additional costs upon
    government’.[28]

  6. Under
    a Tasmanian Charter of Rights a court could be empowered to order a range of
    remedies
    including:

    • a
      declaration that the authority has acted unlawfully;
    • an
      injunction preventing the authority giving effect to an unlawful decision;
    • an
      order setting aside an unlawful decision, and where appropriate ordering that
      the decision be made afresh according to law;
    • appropriate
      compensation and reparation;
    • such
      other remedies as are 'just and
      appropriate’.[29]

  7. While
    the Commission recognises concerns about the possible financial implications of
    awarding damages, in some circumstances the award of damages may be the only
    effective remedy for a breach of human rights. The Commission notes that it may
    be possible to allay concerns about the financial implications of awarding
    damages by confining the award of damages to such circumstances in which damages
    are the only effective remedy. [30]

  8. The
    Commission considers that if a Tasmanian Charter of Rights did not include a
    direct right of action against a public authority, this issue should be
    revisited in periodic statutory reviews of the Charter’s operation.

A
victim or potential victim of a violation of human rights should have standing
to seek a remedy under a Charter of Rights.

  1. A
    person who is an ‘aggrieved person’ in relation to an alleged
    infringement or denial of a right recognised by the Charter should be able to
    commence court proceedings and obtain a remedy in relation to the alleged breach
    of the Charter.

  2. An
    ‘aggrieved person’ should be a natural person who is a victim or a
    potential victim of a breach of rights recognised by the Charter. Corporations
    should not have standing to seek a remedy under the Charter of Rights.

  3. Sometimes
    a person whose rights have been violated may not have the capacity or the
    resources to seek a remedy. A Tasmanian Charter of Rights should enable a
    person or entity to bring an action on behalf of an aggrieved person (consistent
    with relevant court rules). This will still require a person to have a
    sufficient nexus to the alleged infringement or denial of a Charter right.

SHOULD
AN INDEPENDENT HUMAN RIGHTS COMMISSION BE ESTABLISHED UNDER A CHARTER OF RIGHTS?

A Tasmanian Human Rights Commission should be
established.

  1. A
    Tasmanian Charter of Rights should establish an independent Tasmanian Human
    Rights Commission to monitor human rights protection under the Charter, advise
    government on compliance with Charter rights and promote public understanding
    and awareness of a Charter of Rights.

  2. The
    Charter of Human Rights and Responsibilities Act (Vic) renamed the Equal
    Opportunity Commission of Victoria the Equal Opportunity and Human Rights
    Commission (Vic) and conferred additional functions on the Commission to promote
    understanding of, and compliance with, the Tasmanian Charter of Rights.

A Tasmanian Human Rights
Commission should be able to intervene in Court proceedings about the Charter of
Rights.

  1. A
    Tasmanian Human Rights Commission should able to apply for leave to appear as
    intervener or amicus curiae in court proceedings about the application of a
    Tasmanian Charter of Rights.

A Tasmanian Human Rights
Commission should educate the public about the Charter of Rights.

  1. A
    core function of the Tasmanian Human Rights Commission should be to promote
    awareness and understanding of the operation of the Charter of Rights (both
    within the broader community and court system), and encourage government
    agencies and authorities to adopt polices and programs which are compatible with
    the Charter of Rights. The Tasmanian Commission’s education function could
    include:

    1. Preparing
      an annual report on the operation of the Charter to be tabled by the
      Attorney-General in Parliament;
    2. Examining
      enactments to see if they comply with the Charter;
    3. Reviewing
      practices of public authorities, including Government Departments, for Charter
      compatibility;
    4. Making
      submissions to the Parliamentary Standing Committee on Human Rights about the
      human rights implications of new bills;
    5. Promoting
      understanding and acceptance of, and compliance with, the Charter. This may
      include undertaking research and developing education programs to promote the
      objectives of the Charter.

SHOULD
THERE BE AN OBLIGATION TO REVIEW HOW THE CHARTER OF RIGHTS IS WORKING?

  1. A
    Tasmanian Charter should provide for a review after four years of operation and
    after eight years of operation.[31] This review
    provision will allow Parliament to assess whether the Charter is working
    effectively.

  2. If
    important issues – for example whether the Charter of Rights should
    include economic and social rights – are left out of the Charter of
    Rights, a statutory provision should expressly require the Review to revisit
    these issues.[32]

15
December 2006


[1] For further discussion see John von Doussa QC, ‘In defence of human
rights’, Address to the UNSW Law Society’s Speakers Forum, 24 August
2006; Commissioner Graeme Innes ‘The Human Rights and Equal Opportunity
Commission and the Protection of Human Rights at a federal level’,
Address to the ANU Bill of Rights Conference. Both speeches are available at
http://www.humanrights.gov.au/speeches/index.html.

[2] The Commission notes that the United Nations Human Rights Committee (UNHRC) has
stated that all branches of government, and other public or governmental
authorities, at whatever level – national, regional or local – are
in position in engage with a State’s responsibility under the ICCPR. See
United Nations Human Rights Council, The
nature of legal obligations imposed on state parties to the covenant, General Comment no. 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004)
[4].

[3] See Art 2 of the ICESCR.

[4] Australia has also agreed to act in accordance with the Convention on the Elimination of All Forms of
Discrimination Against Women, the Convention on the Elimination of All forms of
Racial Discrimination and the Convention on the Rights of the
Child.

[5] Section 10A of the Human Rights and Equal
Opportunity Commission Act 1986 (Cth)
provides that HREOC is required to ensure that its functions under the Act are
performed ‘with regard for the indivisibility of human
rights’.

[6] The Charter of Human Rights and
Responsibilities Act 2006 (Vic) does make explicit protection for the
protection of Aboriginal identity, culture and language. While the Human Rights Act 1998 (UK) protects
most civil and political rights it also protects the rights to education and the
right to property.

[7] Such a provision could be modelled on Charter of Human
Rights and Responsibilities Act 2006 (Vic) s
6.

[8] Universal Declaration of Human Rights.

[9] For example, the Canadian Supreme Court has found that placing health warnings
on cigarette packets violates corporation’s right to free speech. See McDonald Inc v Canada [1995]3 SCR 199.

[10] This approach has been adopted in the UK, NZ and Victoria although the Human Rights Act 1998 (UK) has a greater range of remedies
available for a breach of the Charter than
the Charter of Human
Rights and Responsibilities Act 2006 (Vic). In the Commission’s view the
best way to make sure public authorities adopt good human rights practices is by
the inclusion of a provision similar to s 6 of the Human Rights Act 1998 (UK).

[11] Such a provision is modelled on the Human
Rights Act (UK) 1998 s 6.

[12] Such an approach is reflected in the Charter
of Human Rights and Responsibilities Act 2006 (Vic)
s4.

[13] Charter of Human Rights and Responsibilities
Act 2006 (Vic) ss 7,
31.

[14] Such a provision could be modelled on Charter
of Human Rights and Responsibilities (Vic) s7(2).

[15] These criteria where developed by Dr Simon Evans. See Dr Simon Evans, ‘The
Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act:
Four key differences and their implications for Victoria’ (paper presented
at the Regulatory Institutions Network, ANU, and the Gilbert +Tobin Centre of
Public Law conference on The Australian Bill of Rights: the ACT and Beyond,
Canberra, 21 June 2006).

[16] The Human Rights Act
1998 (UK) s22 allowed for delayed
commencement of certain
provisions; see also Charter of Human
Rights and Responsibilities 2006 (Vic)
s2.

[17] Such a provision could be modelled on the Human Rights Act 1998 (UK) s 3.

[18] Such a provision could be modelled on the Human Rights Act 2004 (ACT) s31(1).

[19] See para 67-70 in this submission.

[20] The United Nations Human Rights Committee (UNHCR) has stated that ‘in
addition to effective protection of Covenant rights States Parties must ensure
that individuals also have accessible and effective remedies to vindicate those
rights ... importance [is attached] to State Parties’ establishing
appropriate judicial and administrative mechanisms for addressing claims of
human rights violations under domestic law’. See UNHRC, The nature of legal obligations imposed on
state parties to the covenant, General Comment no. 31, UN Doc
CCPR/C/21/Rev.1/Add.13 (2004) [15].

[21] Such a provision may be modelled on s7 of the Human Rights Act 1998 (UK).

[22] See discussion at para 10-15 of this
submission.

[23] UNHRC, The nature of
legal obligations imposed on state parties to the covenant, General
Comment no. 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004)
[15-16].

[24] Human Rights Act 1998 (UK) s
8(1).

[25] Human Rights Act 1998 (UK) s 8(2).

[26] Department for Constitutional Affairs, Review of the Implementation of the Human
Rights Act, (2006)
18.

[27] Charter of Human Rights and Responsibilities
Act (Vic)
s39.

[28] Human Rights Consultation Committee, Rights, Responsibilities and Respect: Report
of the Human Rights Consultation Committee, (2005).

[29] See s 8(1) of the Human Rights
Act 1998 (UK) which similarly allows courts to grant such ‘relief
or remedy, or make such order, within its powers as it considers just and
appropriate’; see also s 24(1) of the Canadian Charter of Rights and
Freedoms which provides persons whose rights and freedoms have been
infringed or denied are entitled to ‘such a remedy as the court considers
appropriate and just in the
circumstances’.

[30] A Charter could also expressly limit the award for damages to such an award as
is necessary to compensate the victim for what actually happened and prohibit
the award of exemplary or punitive damages.

[31] Such a provision could be modelled on s44 and s45 of the Charter of Human Rights and Responsibilities
Act 2006 (Vic).

[32] Such a provision could be modelled on s43 of the Human Rights Act 2004 (ACT) or s44 of
the Charter of Human Rights and
Responsibilities Act 2006 (Vic).

 

Human Rights and Equal Opportunity Commission Website: Legal Information
Last
updated 31 October, 2006