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
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
Commission believes that a Tasmanian Charter of Rights could, depending on its
form and content, significantly improve human rights protection in Tasmania.
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
- 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.
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.
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.
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;
parliamentary sovereignty by making sure that Parliament has the ‘last
say’ about whether legislation complies with a Charter of
- 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.
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. The ICESCR provides that states must
take steps ‘to the maximum of [their] available resources’ to
achieve the ‘progressive realisation’ of ICESCR
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
11. The Human Rights and Equal Opportunity Commission Act 1986 (Cth) recognises that human rights are indivisible. 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.
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.
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.
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
- 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.
The Charter of Rights should protect all people.
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.
- The Commission believes a Tasmanian Charter of Rights should expressly state that corporations do not have human rights. 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. In practice protecting corporations’ human rights may give corporations a vehicle to advance commercial interests.
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.  The Charter should expressly state that an
act by a public authority is not unlawful if:
- as a result of one or more of the provisions of the primary legislation the authority could not have acted differently; or
- 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.
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
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’.
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.
- 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.
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.
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
- 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’;
‘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.
- The Charter of Human Rights and Responsibilities
2006 (Vic) (the Victorian
Charter) includes a reasonable limits
clause and an override clause.
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.
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.
a reasonable limits clause was introduced the Commission considers that that
clause should require the Government to take into account all relevant factors
- What is the nature of the right that is limited;
- What is purpose of limiting the right;
- What is the nature and extent of the limitation;
- Whether the limitation is necessary to achieve the purpose;
- Whether any less restrictive means is reasonably available to achieve the relevant purpose.
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.
- 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.
play a vital role in scrutinising proposed legislation and facilitating public
debate about the human rights implications of proposed laws.
Tasmanian Charter of Rights should require a Parliamentary Standing
Committee on Human Rights
- Inquire whether any Bill introduced into Parliament complies with the Charter;
into questions referred to the Committee by Parliament.
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.
- 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 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.
the Tasmanian Attorney-General believes that the Bill is inconsistent with the
Charter, the Attorney-General should provide the following
- The nature of the right that is limited;
- What is the purpose of limiting the right;
- The nature and extent of the limitation;
- Why the limitation is necessary to achieve the purpose;
any less restrictive means is reasonably available to achieve the relevant
Private Member’s Bill must also be accompanied a human rights compatibility statement prepared by the Member of Parliament who introduces the
new or amended Regulation tabled in Parliament should also be accompanied by a human rights compatibility
- 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.
Rights Impact Statements (HRIS) would help Parliament assess the impact
proposed legislation may have on human rights in Tasmania.
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.
- 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.
- 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.
- The Commission believes that a Tasmanian Charter of Rights should give courts the power to:
- 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.
- 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. 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.
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.
- A declaration of incompatibility would not
have any effect on the validity or continuing operation of the legislation.
Attorney-General and the Tasmanian Human Rights
Commission should be given notice of
proceedings where a declaration of
incompatibility might be made.
- 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.
- 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.
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(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’. 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
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
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
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.
- 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.This power allows courts to award damages but only if such an award is
‘necessary to afford satisfaction’ to the
complainant. 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).
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. 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
a Tasmanian Charter of Rights a court could be empowered to order a range of
- 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;
other remedies as are 'just and
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. 
- 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.
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.
‘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.
- 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.
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.
- 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.
- 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.
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
- Preparing an annual report on the operation of the Charter to be tabled by the Attorney-General in Parliament;
- Examining enactments to see if they comply with the Charter;
- Reviewing practices of public authorities, including Government Departments, for Charter compatibility;
- Making submissions to the Parliamentary Standing Committee on Human Rights about the human rights implications of new bills;
- 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.
Tasmanian Charter should provide for a review after four years of operation and
after eight years of operation. This review
provision will allow Parliament to assess whether the Charter is working
- 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.
15 December 2006
 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
 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) .
 See Art 2 of the ICESCR.
 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.
 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’.
 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.
 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 3 SCR 199.
 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).
 Charter of Human Rights and Responsibilities
Act 2006 (Vic) ss 7,
 Such a provision could be modelled on Charter of Human Rights and Responsibilities (Vic) s7(2).
 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).
 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.
 Such a provision could be modelled on the Human Rights Act 1998 (UK) s 3.
 Such a provision could be modelled on the Human Rights Act 2004 (ACT) s31(1).
 See para 67-70 in this submission.
 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) .
 Such a provision may be modelled on s7 of the Human Rights Act 1998 (UK).
 See discussion at para 10-15 of this
 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].
 Human Rights Act 1998 (UK) s 8(1).
 Human Rights Act 1998 (UK) s 8(2).
 Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act, (2006) 18.
 Charter of Human Rights and Responsibilities Act (Vic) s39.
 Human Rights Consultation Committee, Rights, Responsibilities and Respect: Report of the Human Rights Consultation Committee, (2005).
 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’.
 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.
 Such a provision could be modelled on s44 and s45 of the Charter of Human Rights and Responsibilities
Act 2006 (Vic).
 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).