Submission to the Human Rights Consultation Committee, Victoria on a proposed Charter of Rights


16 September 2005

Mr George Williams, Chair
Human Rights Consultation Committee
Department of Justice
55 St Andrews Place
East Melbourne VIC 3002

Dear Chair

The Human Rights and Equal Opportunity Commission (HREOC) thanks the Human Rights Consultation Committee (the Committee) for the opportunity to make this submission.

HREOC congratulates the Victorian Government on the establishment of the Human Rights Consultation Project and Committee.

HREOC is aware of the substantial number of submissions that have been made to the Committee in response to the Human Rights Consultation Community Discussion Paper. HREOC is hesitant to add to the voluminous background information provided to the Committee in many of those submissions. For this reason, HREOC has chosen to confine its submission to setting out those features of a Charter of Rights that it considers essential to the protection of human rights and the promotion of a strong human rights culture in Victoria. In doing so, it has had regard to the parameters set out by the Victorian Government in its Statement of Intent.1

HREOC notes that the Victorian Government’s Statement of Intent indicates that the Government’s preferred human rights model is a model similar to that adopted by the United Kingdom2 (UK), New Zealand3 (NZ) and the Australian Capital Territory4 (ACT). HREOC notes that those models offer a differing degree of protection for human rights. In particular, the model adopted by the ACT offers much weaker protection of human rights than those adopted by the UK and NZ. Consequently, HREOC encourages the Victorian Government to adopt a Charter of Rights that more closely reflects the models adopted by the UK and NZ.

HREOC considers that in order to best protect human rights and having regard to the parameters set out by the Victorian Government in its Statement of Intent, a Charter of Rights ought to have the following characteristics:

  • Apply to acts done by the Legislature and Executive and bind public authorities

The Charter of Rights should apply to acts of the Legislature and Executive, as is the case in the UK,5 NZ6 and Canada.7

The Charter of Rights should also impose an express obligation on public authorities and other persons and bodies performing public functions or a power or duty conferred on them by or pursuant to law, to act in a manner that is consistent with the rights set out in the Charter in the performance of that function or power or duty. This is also consistent with the position in the UK and NZ.8 This would ensure that public authorities (being quasi-government agencies whose actions affect many people) adopt best human rights practice in their policies and programs.

  • Recognise ICCPR and ICESCR rights, including minority rights

HREOC notes that in its Statement of Intent, the Victorian Government has asked the Committee to focus on the rights in the International Covenant on Civil and Political Rights (ICCPR) as a starting point in its deliberations as to the human rights model to be adopted in Victoria. It also states that, in its view, those living in poverty and in marginalised communities have often had the most need of the protections offered by the basic rights in the ICCPR.

As recognised by the HumanRights and Equal Opportunity CommissionAct 1986 (Cth), human rights are indivisible.9 As such, HREOC considers that the Charter of Rights should not be limited to the rights recognised in the ICCPR. HREOC submits that in order to best address the disadvantage identified in the Statement of Intent, the Charter should recognise the rights recognised under both the ICCPR and the International Covenant on Economic, Social and Cultural Rights.

  • Require Parliament to scrutinise Bills introduced into the Parliament for compatibility with the rights recognised in the Charter

The Charter of Rights should require legislation (whether primary or subordinate legislation) to be compatible with the rights recognised in the Charter. HREOC supports the Attorney-General being obligated under the Charter in respect of Bills presented to the Parliament by a Minister to prepare a compatibility statement stating whether the Bill is consistent with the Charter of Rights. If the Bill is inconsistent with the Charter, the Attorney-General should be required to state how the Bill is inconsistent with the Charter.10 HREOC submits that that approach is to be preferred to a provision which only requires the Attorney-General to report to Parliament if the Bill appears to be inconsistent with the rights recognised by the Charter11 or an approach by which the incompatibility of a Bill is only recognised on a declaration to that effect by a court.12 This is because of the educative effect that would flow from Parliament having to turn its mind to the human rights implications of each proposed Bill.

The Charter should also contain a provision requiring a parliamentary standing committee to examine the provisions of a Bill to assess the human rights issues raised by the Bill.13

HREOC submits that the proposed 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 Victorian community.

  • Require a sunset clause be inserted into legislation not scrutinised by the Parliament for compatibility with the rights recognised in the Charter

HREOC recognises that there may be occasions in which it is impracticable for Parliament to comply with the proposed mechanisms for the parliamentary scrutiny of Bills. As such it does not oppose the insertion of a provision making it clear that a failure by Parliament to comply with those mechanisms does not affect the validity, operation or enforcement of such legislation (a ‘notwithstanding clause’).14

However, HREOC submits that the Charter should require that a sunset clause be inserted into any legislation enacted without being scrutinised for compatibility with the rights recognised in the Charter. This would ensure the legislation is at some point scrutinised by the Parliament for compatibility with the Charter. At a minimum, such legislation should be required to be reviewed by the committee responsible for scrutinising Bills for compliance with the Charter within a certain period of time after its commencement. This would prevent Governments being able to completely circumvent the parliamentary scrutiny provisions.  

  • Include a ‘reasonable limits’ clause

HREOC recognises that there are instances in which competing rights will need to be balanced. The Charter should therefore include a provision enabling the Parliament to enact legislation that limits the rights recognised in the Charter to the extent that those limitations are reasonable and demonstrably justifiable in a free and democratic society.15

  • Include an interpretative clause

HREOC submits that the Charter should include an interpretative clause similar to that adopted in the UK which provides that legislation (whether primary or subordinate legislation and whenever enacted), so far as it is possible to do so, must be read and given effect to in a way which is compatible with the rights contained in the Charter.16 HREOC submits that such an approach is to be preferred to the position in the ACT and NZ17 and is consistent with the principles of legislative interpretation required to be applied by Victorian courts under the Interpretation of Legislation Act 1984 (Vic).18

In addition, the Charter of Rights should explicitly provide that in determining the meaning of an impugned law the courts should be able to have regard to international law, including jurisprudence of international courts and tribunals.19

  • Allow judicial declaration of inconsistency

HREOC notes that in the Statement of Intent, the Victorian Government has indicated that it does not support a Charter of Rights that could be used to invalidate laws without recourse by the legislature. In view of that, HREOC considers that at a minimum, the Charter should vest the court with the power to make a declaration that particular legislation is inconsistent with the Charter, which declaration is to be conveyed to the Attorney-General who would subsequently be required to table the declaration and the Government’s response.20

  • Provide enforceable remedies

HREOC submits that the Charter should enable individuals to bring actions for alleged infringement or denial of a right recognised under the Charter, subject to our comments in relation to standing below.21 Persons whose rights have been infringed or denied should have access to an effective remedy. HREOC submits that the Charter should adopt the position under the Human Rights Act 1998 (UK) and Canadian Charter of Rights and Freedoms which provides courts with the power to grant the relief it considers ‘appropriate and just in the circumstances’, consistent with its powers to grant such relief or remedy.22 This would be consistent with Australia’s obligation under article 2(3) of the ICCPR to provide an ‘effective remedy’ to persons whose Covenant rights have been violated.23

HREOC notes that in its Statement of Intent, the Victorian Government has signalled that it does not support a human rights model that creates individual causes of action based on human rights breaches. Rather, it supports a model that in its view promotes dialogue, education, discussion and good practice rather than litigation. HREOC submits that enabling individuals to bring court actions is not mutually exclusive with those aims. Indeed individual court actions can have an educative effect and promote human rights dialogue by providing a springboard for public discussion about human rights issues.  

  • Include a broad standing provision

HREOC submits that a person who is an ‘aggrieved person’ in relation to an alleged infringement or denial of a right recognised by the Charter be able to commence court proceedings and obtain a remedy in relation to the alleged violation. HREOC also supports a person being able to bring an action on behalf of an aggrieved person (consistent with relevant court rules). HREOC submits that such a standing provision is appropriate as it requires a person to have a sufficient nexus to the alleged infringement or denial of a Charter right. This would be consistent with the position under the Human Rights Act 1998 ( UK)24 and Canadian Charter of Rights and Freedoms.25

  • Establish an independent human rights commission whose functions would include to educate the public about issues relating to human rights and ability to intervene in proceedings

The Charter of Rights should establish an independent body26 whose functions include an ability to intervene in court proceedings that involve the application of the Charter27 and to promote an understanding and acceptance and public discussion about human rights.28

In HREOC’s experience, the establishment of such a body is crucial for the promotion of human rights dialogue and education (both within the broader community and court system), and encouraging government agencies and authorities to adopt polices and programs which reflect good human rights practice.  

  • Entrenchment

HREOC notes that in the Statement of Intent, the Victorian Government has indicated that it does not support a constitutionally entrenched Charter of Rights. HREOC nonetheless considers that the government should consider ways in which it might legislatively entrench the Charter of Rights. At a minimum, HREOC considers that the Charter should contain a provision requiring proposed amendments to the Charter be scrutinised by a parliamentary committee. This would not prevent subsequent Parliaments amending the Charter (whether favourably or unfavourably) but it would signal (albeit in a symbolic manner) the Government’s commitment to the protection of human rights and its intention that the Charter not be amended without careful consideration.

Nonetheless HREOC considers that, in the event that the Charter of Rights ultimately enacted by the Victorian Government reflects that of the ACT rather than the UK or NZ, any entrenchment mechanism would not want to be so onerous as to unduly deter the Charter being amended to strengthen the protection of human rights in Victoria.


Endnotes

1Statement of Intent released by the Victorian Cabinet in May 2005.

2 See Human Rights Act 1998 ( UK).

3 See Bill of Rights Act 1990 (NZ).

4 See Human Rights Act 2004 (ACT).

5 See ss 3 and 6, respectively, of the Human Rights Act 1998 ( UK).

6 See s 3(a) of the Bill of Rights Act 1990 (NZ). HREOC notes that s 3(a) of the Bill of Rights Act1990 also extends the Act to the Judiciary.

7 See s 32 of the Canadian Charter of Rights and Freedoms.

8 HREOC submits that this could be best achieved by the inclusion of a provision similar to s 6 of the Human Rights Act1998 ( UK), or alternatively, s 3(b) of the Bill of Rights Act 1990 (NZ).

9 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’.

10 HREOC submits that such a mechanism could be modelled on that prescribed by s 37 of the Human Rights Act2004 (ACT).

11 This is the case, for example, under the Bill of Rights Act 1990 (NZ): see s 7.

12 This is the case, for example, under the Human Rights Act 1998 ( UK): see s 3.

13 HREOC submits that such a mechanism could be modelled on that prescribed by s 38 of the Human Rights Act 2004 (ACT).

14 HREOC submits that such a provision could be modelled on s 39 of the Human Rights Act 2004 (ACT). See also, s 33 of the Canadian Charter of Rights and Freedoms.

 

15 HREOC submits that such a provision could be modelled on s 1 of the Canadian Charter of Rights and Freedoms. The Canadian Supreme Court has interpreted s 1 as requiring the court to determine whether:

  • the objective of the legislation is pressing and substantial; and
  • the means chosen to attain this legislative end are reasonable and justifiable in a free and democratic society. This will be the case if there is:
    • a rational connection between the measure and the aim of the legislation;
    • minimal impairment of the protected right by the measure; and
    • proportionality between the effect of the measure and its objective.

See RJR-MacDonald v Canada(Attorney General) [1995] 3 SCR 199 and more recently, Chaoulli v Quebec (Attorney General) (2205) SCC 35.

This is also consistent with the approach taken by the Human Rights Committee. In General Comment No.31, UN Doc CCPR/C/21/Rev.1/Add.13, [6] the Committee affirmed that limitations imposed on Covenant rights must be ‘proportionate’:

[A]ny restrictions on ICCPR rights must be permissible under the relevant provisions of the Covenant. Where such limitations are permitted, States must in any case demonstrate their necessity and only take measures which are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the limitations be applied or invoked in a manner that would impair the essence of a Covenant right…

Section 5 of the Bill of Rights Act 1990 (NZ) and s 28 of the Human Rights Act 2004 (ACT) are similar to s 1 of the Canadian Charter of Rights and Freedoms in their breadth though they do not require that the limitations be ‘demonstrably’ justifiable. ‘Demonstrably justifiable’ has been held by the Canadian Supreme Court as: ‘critical: the process is neither one of mere intuition nor of deference to Parliament’s choice’: RJR-MacDonald v Canada(Attorney General) [1995] 3 SCR 199.

See also, s 36 of the South African Bill of Rights which sets out factors to which a court may take into account when determining whether the proposed limitations are reasonable and justifiable.

16 HREOC submits that such a provision could be modelled on s 3 of the Human Rights Act 1998 ( UK).

17 Section 30(1) of the Human Rights Act 2004 (ACT) and s 6 of the Bill of Rights Act 1990 (NZ) provide that where an enactment can be given a meaning that is consistent with the rights recognised in those Acts, that meaning shall be preferred to any other meaning.

18 See s 35 of the Interpretation of Legislation Act 1984 (Vic).

19 HREOC submits that such a provision could be modelled on s 31(1) of the Human Rights Act 2004 (ACT). This would also be consistent with the courts’ obligations under s 35 of the Interpretation of Legislation Act 1984 (Vic).

20 HREOC submits that such a provision could be modelled on ss 32 and 33 of the Human Rights Act 2004 (ACT). See also, s 4 of the Human Rights Act 1998 ( UK) and s 4 of the Bill of Rights Act 1990 (NZ).

21 HREOC submits that such a provision could be modelled on s 7 of the Human Rights Act 1998 ( UK), or s 24 of the Canadian Charter of Rights and Freedoms subject to our comments on standing in the text above.

22 HREOC submits that such a provision could be modelled on 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’, or 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’.

23 See Human Rights Committee, in General Comment No.31, UN Doc CCPR/C/21/Rev.1/Add.13, [15].

24 See s 7 of the Human Rights Act 1998 ( UK) which provides that a person who is, or would be, a victim of an act deemed unlawful under s 6 can bring proceedings under the Act.

25 See, s 24(1) of the Canadian Charter of Rights and Freedoms which allows ‘anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied’ to apply to a court of competent jurisdiction to ‘obtain such remedy as the court considers just and appropriate in the circumstances’.

26 HREOC notes that this could be a new body or an existing body such as the Victorian Equal Opportunity Commission.

27 HREOC submits that such a provision could be modelled on s 36 of the Human Rights Act 2004 (ACT) or, alternatively, s 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) which empowers HREOC to intervene in court proceedings that ‘involve human rights issues’.

28 HREOC submits that such a provision could be modelled on s 11(1)(g) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

Human Rights and Equal Opportunity Commission Website: Legal Information Last updated 15 January 2002.