On 4 May 2006, in the second reading speech for the now adopted Charter of Human Rights and Responsibilities, I declared that the Charter would provide ‘a lasting statement of the fundamental values’ necessary ‘for the freedom and good government of our communities.’ I proclaimed that it would enshrine the ‘values of decency, respect and human dignity in our law’ and would lay ‘the foundations for protecting human rights in the daily lives of all Victorians.’ I must now concede that my claims were somewhat inflated. The Charter will indeed operate to ‘help us become a more tolerant society, one which respects diversity and the basic dignity of all’. But it tells only part of the story. The full dignity of every individual will not be secured by the protection of his or her civil and political rights alone. On the contrary, it is incumbent upon the State of Victoria to respect, protect and fulfil the full range of economic, social and cultural rights which have been recognised under international law. The Federal Government may flout with contempt the nature of the obligations it has assumed with respect to these rights, but I believe it is incumbent upon myself to advocate for the recognition and full protection of such rights within Victoria. Economic and social rights were omitted from the Victorian Charter ostensibly because they lacked the ‘strong measure of acceptance’ enjoyed by civil and political rights within the community. In truth, however the Victorian Government’s Statement of Intent on the Proposed Charter indicated that such rights were never to be included because of their perceived resource implications. Moreover the Consultation Committee happily obliged by recommending that they should not be included at this point in time despite 41 per cent of submissions urging their inclusion. Some commentators will no doubt critique and condemn the merits of this approach. The reality, however, is that the Charter requires me to undertake a review of its operation after its first 4 years with a view to considering whether any additional human rights, including economic and social rights, should be included in the Charter. Although mine will not be the sole voice that determines the content of this review, I intend to commit myself to the promotion of such rights with a view to securing their inclusion within the Charter in 4 years time for 3 fundamental reasons.
First, human dignity cannot be secured by the protection of civil and political rights alone. The international community has already recognised the artificial nature of the distinction between such rights and economic and social rights and declared that all rights are interdependent and indivisible. Simply translated, this means that the right to freedom of expression, for example, is of little value if a person is denied a right to an education; while the right to vote is meaningless in the absence of a right to adequate housing and nutrition.
Second, the fears associated with the perceived resource allocations required for the realisation of economic and social rights are misplaced. It assumes that civil and political rights are resource neutral which is entirely inaccurate. The right to life for example does not simply demand that States refrain from taking life but effectively requires the provision of measures to protect life such as an effective police force. The right to a fair trial requires the provision of an independent and impartial judicial system, a competent prosecution body and access to legal aid.
Moreover, the experience of other jurisdictions demonstrates that economic and social rights are capable of constitutional or legislative protection without destroying Government processes. In South Africa, for example, where economic and social rights are justiciable, there has been no avalanche of litigation and no usurpation of the Parliament’s role by the courts. On the contrary the Courts have adopted a sophisticated and sensitive role in the adjudication of economic and social rights and expressed a reluctance to question the allocation of resources where such decisions are considered to be reasonable and taken in good faith.
Third, although Victoria is a prosperous State, there remain significant and real pockets of disadvantage and poverty, whether they be homelessness, or a lack of access to education and health care services. Human rights are intended to address such disadvantage and inequality. I concede that this will require the allocation of additional resources. But at the same time, it is important to remember, as the Treasurer proclaimed in his 2006-07 Budget Speech, that ‘for the seventh consecutive year, the Government will meet its commitment to deliver an operating surplus in excess of $100 million’ and ‘deliver a surplus of $317 million in 2006-07 and surpluses averaging $316 million over the following three years’. These are not figures to be proud of when families are struggling to feed and educate their children, the elderly are waiting on hospital lists for years and the homeless remain unable to find a safe place to rest.
As Attorney General, I now accept that the role of the Human Rights Charter is not simply to protect individuals from unjustified interference with their liberty by the State. Rather, the role of Government in a modern democratic State is to create and facilitate the conditions under which the full and fundamental dignity of each individual is secured. The explicit protection of economic and social rights within the Victorian Charter is critical to the realisation of this objective. Until their inclusion is secured, the ‘powerful symbolic and educative tool’ that the Charter will come to play within Victoria will remain compromised and incomplete.
John Tobin is a Senior Lecturer at the Melbourne Law School and Chair of the Human Rights Law Resource Centre Advisory Committee