12 January 2007
Key Points:
The Charter’s perceived aim to constrain legislative action will only be effective if it is taken seriously by government departments.
Victorians now have a bill of rights. The Charter of Human Rights and Responsibilities Act 2006 (Vic) ("Charter") received assent on 25 July 2006. The Charter is an initiative of the Victorian Department of Justice and was first announced in the Attorney General’s Justice Statement in 2004. Based upon the civil and political rights stipulated under the International Covenant on Civil and Political Rights 1966 ("ICCPR"), the Charter sets out minimum standards and provides guidance for the protection of human rights by government departments.
The main purposes of the Charter is to protect and promote human rights when new legislation is being developed, and also to increase transparency in the consideration of human rights in parliamentary procedures. It is intended that these will be achieved by:
Compliance with the Charter will be an integral aspect of legislative development and passage of proposed legislation through the parliamentary processes and, as such, requires government departments to be abreast of the application of the Charter and the rights enshrined in it.
Protection of Human Rights
Part 2 of the Charter sets out the human rights which Parliament seeks to promote and protect, such as a right to life, a right to privacy, a right to protection from torture and cruel, inhuman or degrading treatment, freedom of expression, freedom of belief, freedom of association, cultural rights, children’s rights and legal rights relating to process.
When assessing the impact of proposed legislation on those rights, the rights are qualified by the operation of section 7, which requires a consideration of the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relationship between the limitation and its purpose and whether there are less restrictive means that are reasonably available to achieve the purpose that the limitation seeks to achieve.
Obligations for legislative and policy development
Statements of Compatibility
Section 28 of the Charter requires that Members of Parliament proposing to introduce a Bill into either House must prepare a "Statement of Compatibility", which states that the Bill is compatible with the Charter. The Statement must identify both how the Bill is compatible with human rights, and the nature and extent of any incompatibility.
The Statement must include the purpose of a proposed Bill; its effect upon any of the human rights in the Charter; limitations placed upon any human rights by the Bill (and the importance of this limitation and the nature and extent of the limitation); the relationship between the limitation and its purpose; and whether there is any less restrictive means to achieve the purpose.
Statements of Compatibility are not binding on courts or tribunals.
Section 31 of the Charter provides that in "exceptional circumstances" Parliament can pass laws notwithstanding that such laws are incompatible with one or more of the human rights contained in the Charter. Exceptional circumstances may include threats to national security or a state of emergency.
Human Rights Impact Statements
According to the Report of the Human Rights Consultation Committee, the Charter requires a Human Rights Impact Statement to be prepared and to be included in Cabinet submissions in relation to policy proposals. The requirements of the Human Rights Impact Statement are similar to those of Statements of Compatibility.
The preparation of Statements of Compatibility and Human Rights Impact Statements requires an analysis of any likely limitations on rights under section 7 of the Charter, and consideration of whether any limit on a human right is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
In the preparation of Statements of Compatibility and Human Rights Impact Statements officers will need to have regard to the extensive jurisprudence developed in overseas jurisdictions, in particular in relation to the Human Rights Act 1998 (UK). However, judgments on compatibility will also turn on empirical questions which cannot be resolved purely by jurisprudence. Although legal analysis will be integral to an understanding of the relevant rights issues, the necessary evidence as to rights impact will likely be one based on broader social considerations.
Obligations of public authorities
Although the Charter is generally directed to public authorities (defined broadly to include Ministers and members of parliamentary committees, government departments, statutory authorities, Victoria Police and local councils and councillors), it is also intended to bind private sector organisations acting on behalf of the government and in performing public functions. A "public authority" does not include Parliament or the courts.
Section 38 of the Charter provides that it is unlawful for a public authority to act in a way that is incompatible with or to fail to give proper consideration to a human right protected by the Charter. The definition of public authorities determines the limits of the duties imposed under section 38. The intention is that the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature.
Remedies
The ICCPR, the key international instrument on which the Charter is based, obliges States to provide effective remedies for non-compliance with the rights that it protects. The preferred approach of the Charter, however, is education and conciliation. As section 39 sets out, the award of damages for breach of Charter rights is excluded under the Charter.
Finally, the Charter provides a mechanism for the inquiry or investigation by the Ombudsman of any administrative action that may be incompatible with the human rights protected under the Charter.
Role of the courts
The Charter will also require courts to interpret legislation in a way that is compatible with human rights. Although courts cannot strike down legislation for incompatibility, they can declare that certain laws are incompatible with the Charter. In making a Declaration, the courts are required to refer to international law, including determinations of foreign and national courts and tribunals relevant to a particular provision, when assessing the compatibility of the legislation with the Charter. Courts are required to have regard to the purpose of the legislation and to interpret the legislation in a way that is not only consistent with the Charter but with its purpose.
Conclusion
The success of the Charter will to a large extent depend on the extent to which its effect is incorporated by the public service in the development of legislative and policy proposals. Its perceived aim to constrain legislative action will only be effective if it is taken seriously by government departments. This will require extensive training within government departments to institutionalise the effect of the Charter and to inform public authorities as to the effect of the Charter on their functions and day-to-day operations.
For further information, please contact Tom Mosby .
