HRLC Submission to Strengthen and Enhance the Victorian Charter

The HRLC has made a submission to the review of the Victorian Charter, which is being undertaken by the Scrutiny of Acts and Regulations Committee. Using an evidence-based approach, the HRLC has emphasised that the review should be used as an opportunity to strengthen the Charter and certainly not, in any way, to limit or abrogate human rights. In its submission, the HRLC outlines the following effects of the operation of the Victorian Charter in its first four years:

Overall Impacts and Benefits

  • The Charter’s mechanisms have encouraged Victoria’s strong democratic and legal institutions to give increased consideration to human rights in undertaking their roles and functions.
  • While the Victorian Charter has by no means been a panacea to all forms of unfairness and injustice in Victoria, it has played an important role in ensuring that human rights are appropriately considered in all aspects of governmental activity. This includes in the development of laws and policies, in decision-making that affects every day Victorians, and in the role of courts and tribunals.
  • The wide range of areas in which the Victorian Charter has played a role suggests that the protection of human rights is relevant to Victorians in many different contexts.

Impact on Legislative and Policy Formulation

  • The Victorian Charter has substantially strengthened the consideration of human rights in the development and drafting of new legislation and policies.
  • The Victorian Charter’s mechanisms for promoting the compatibility of new legislation with human rights – namely, the preparation of Statements of Compatibility and the review by SARC of all Bills introduced into Parliament – have improved the transparency and accountability of the Victorian Parliament and Government.
  • Formal scrutiny processes have also ensured that the needs of all Victorians are more appropriately considered in legislative and policy formulation and that, generally speaking, limitations on rights have only been imposed after careful consideration as to their reasonableness, necessity and proportionality.
  • The operation of the Victorian Charter has maintained Parliamentary sovereignty. Parliament has been able to pass legislation even where it may not be compatible with human rights. Where courts have interpreted legislation in a way that was not intended by Parliament, the Parliament has been free to amend the law if it chooses to do so.

Impact on Decision Making and Service Delivery

  • The Victorian Charter has had its greatest practical impact at the interface between service delivery providers and decision makers and the Victorian community, particularly with respect to marginalised or disadvantaged individuals and groups.
  • The decision-making framework provided by the Victorian Charter has offered useful guidance to public authorities and employees. This decision making framework promotes that appropriate consideration and weight be given to fundamental rights and freedoms, that these rights and freedoms are counterbalanced by other relevant public interest considerations, and that limitations on human rights are rational and proportionate.
  • While it is still early days, the Victorian Charter has contributed to cultural change within public authorities and encouraged human rights — and the principles of freedom, respect, equality and dignity — to be embedded in their work.

Impact on Victorian Law

  • There has been no “flood of litigation” or discernible increase in the number, length or complexity of cases being brought before Victorian courts and tribunals as a result of the Victorian Charter.
  • Courts have taken a moderate approach to the application and interpretation of the Victorian Charter. Indeed, the actual impact of the Victorian Charter in the courtroom has been significantly less than many predictions or descriptions. Where the Charter has had an impact, it has overwhelmingly been in a beneficial way and has been successfully used to challenge arbitrary or unjust policies and decisions.
  • The Charter has not altered the constitutional balance between the Victorian Parliament, Executive and Judiciary. The role played by courts and tribunals under the Victorian Charter has enhanced the dialogue between the three arms of government and strengthened accountability and checks and balances.
  • The Victorian Charter has been considered across a wide range of civil litigation, but has arisen most often in relation to cases dealing with access to justice, housing and homelessness, equality and non-discrimination, and mental health.
  • Decisions by Victorian courts regarding the Victorian Charter have had very little impact on criminal law, where the common law already entrenches many fundamental rights and protections.

Myths and Misconceptions

  • Myths and misconceptions have the potential to damage perceptions about the role of the Victorian Charter and its operation and impact. Some myths have evolved as a result of partial, incorrect or, at times, sensationalist media reporting. For example, the myth that the legislation is a “criminals’ charter” or the misconception that sharia law could be incorporated into Victorian law via the Victorian Charter are unfounded and incorrect.

In its submission, the HRLC makes 20 key recommendations to improve the Charter’s effectiveness.