A Charter of Human Rights for Victoria

By Dr Graham Smith.

Key Points:
The Charter will aim to provide protections for civil and political rights, primarily derived from the International Covenant on Civil and Political Rights 1966.

In recent times, certain states have considered implementing a bill or charter of rights to provide further protections of human rights in conjunction with already existing legislation. For example, the Tasmanian government has recently requested the Tasmania Law Reform Institute to conduct an inquiry into whether such a bill or charter should be implemented in Tasmania. Similarly, discussions and debates are also occurring in New South Wales.

Moving beyond the discussion and debate, Victoria has now implemented a Charter of Human Rights with the enactment of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter received assent on 25 July 2006 and becomes operative on 1 January 2007.

The Charter requires courts and tribunals to interpret statutory provisions in a way that is compatible with human rights. This process may be aided by reference to international law and judgments of domestic, foreign and international courts and tribunals. The operation of this requirement does not, however, invalidate an Act or a provision of an Act (or likewise for a subordinate instrument) if it is incompatible with a human right.

Purpose

The Charter states that its main purpose is to protect and promote human rights. It does so by:

• setting out the human rights that Parliament specifically seeks to protect and promote; and
• ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and
• imposing an obligation on all public authorities to act in a way that is compatible with human rights; and
• requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and
• conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.

The Rights

The Charter sets out the following as human rights, the majority of which are codified in the International Covenant on Civil and Political Rights 1966:

• Recognition and equality before the law
• Right to life
• Protection from torture and cruel, inhuman or degrading treatment
• Freedom from forced work
• Freedom of movement
• Privacy and reputation
• Freedom of thought, conscience, religion and belief
• Freedom of expression
• Peaceful assembly and freedom of association
• Protection of families and children
• Taking part in public life
• Cultural rights
• Property rights
• Right to liberty and security of person
• Humane treatment when deprived of liberty
• Particular rights for children in the criminal process
• Fair hearing
• Rights in criminal proceedings
• Right not to be tried or punished more than once
• Rights in relation to retrospective criminal laws.

Renaming the Commission

The Charter also renames the Equal Opportunity Commission as the Victorian Equal Opportunity and Human Rights Commission ("VEOHR") and confers on it additional functions. These additional functions include powers to intervene and be joined as a party to proceedings before any court or tribunal in which a question of law arises that relates to the application of the Charter, or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter. VEOHR will also be required to present to the Attorney-General an annual report which, amongst other things, deals with the operation of the Charter, and provide education about human rights and the Charter.

Further review

Further reviews of the Charter are legislated to occur after four and eight years of operation (for years one to four and five to eight, respectively). The first mandated review will seek, among other things, to determine whether additional human rights should be included as human rights under the Charter.

Thanks to Stasio Ulaszyn for his help in writing this article.

For further information, please contact Dr Graham Smith.