The Victorian Government is currently reviewing the Charter of Human Rights and Responsibilities Act. This review could result in the Charter being strengthened and streamlined, weakened, or even repealed. The Government position is being coordinated by the Office of the Premier and the Department of Premier and Cabinet. It is likely that a decision on the future of the Charter will be made within Government by December 2011, with a formal Government position announced in March 2012.
We strongly encourage individuals and organisations to write to the Premier calling for the Victorian Charter to be retained and strengthened.
This page contains the following information:
- SARC's Report on the Charter's operation...
- ... and the Premier's Response
- Why and how the Victorian Charter should be maintained and strengthened
- What Can You Do?
The Scrutiny of Acts and Regulations Committee was tasked by the Attorney-General to review and report on the Charter's operation and impact.
The Final Report of the Review of the Victorian Charter of Human Rights and Responsibilities Act 2006 was tabled in the Victorian Parliament on Wednesday 14 September 2011.
While the Committee recommended against repeal of the Charter in its entirety, it did recommend that courts have no role or a substantially reduced role in enforcing human rights and providing remedies when they are breached. It also recommended that government departments and public services have no or reduced obligations to act compatibly with rights. These amendments are tantamount to repeal.
If the recommendations of SARC on the future of the Charter are accepted, Victoria will become the first state in the developed, democratic world to substantially weaken the legal protection of human rights.
The Victorian Government is required to table a response to the Committee's recommendations within six months. The Government is not bound by SARC's recommendations and their response could involve strengthening, weakening or even repealing the Charter.
In response to SARC's report, the Premier announced that the Government response will be prepared and co-ordinated by the Department of Premier and Cabinet. The Premier also stated that:
- the SARC report, and many of the submissions made to SARC, indicate that the Charter of Human Rights has delivered benefits to Victoria, and should not be repealed; and
- the views expressed in the SARC report are those of the cross-party committee members and not necessarily those of the Coalition Government.
Why the Victorian Charter should be retained
The HRLC considers that the Victorian Charter should be maintained and strengthened for six key reasons:
- The evidence clearly demonstrates that Charter of Human Rights is delivering benefits for Victorians
- Predicted adverse consequences of the Charter have been proven unfounded and incorrect
- There is very strong community support for the Charter
- Substantial amendment of the Charter would create unnecessary costs and uncertainty
- Human rights promote transparency and accountability in government and are essential for a fair and just Victoria
- Victoria should not go down in history as the first democratic state to wind back human rights laws
These reasons are explained in further detail in the HRLC's Briefing Paper to the Office of the Premier.
How the Victorian Charter could be strengthened
While the evidence shows that, overall, the Charter is working effectively and efficiently, there are a few modest reforms that the HRLC considers could streamline and strengthen the operation of the Charter. These are options
- Civil and political rights: Part 2 of the Charter could be amended to include all of the human rights contained in the International Covenant on Civil and Political Rights that are not currently enshrined in the Charter.
- Economic, social and cultural rights: Consideration should be given to amending Part 2 of the Charter to include human rights enshrined in the International Covenant on Economic, Social and Cultural Rights, but perhaps limiting the application of those rights to the functions set out in Part 3, Div 1 (Scrutiny of new legislation).
- Limitations on human rights: Section 7 of the Charter could be amended to clarify that it does not apply to absolute human rights, such as the right to protection from torture and cruel, inhuman or degrading treatment. This would ensure that human rights are not subject to limitations in Victoria that are strictly prohibited under international law.
- Override by parliament: Section 31 of the Charter, which enables Parliament to make an override declaration, could be repealed as it is unnecessary in a statutory model of human rights protection.
- Legal proceedings and access to remedies: Section 39 of the Victorian Charter, which relates to legal proceedings, is unnecessarily complex and is inconsistent with the principle that victims of human rights breaches should have accessible and effective remedies. It could be replaced with a provision that: establishes a free-standing cause of action for breaches of protected human rights which is justiciable and enforceable in the appropriate court or tribunal (including the Victorian Civil and Administrative Tribunal); and empowers the court or tribunal to grant such relief or remedy, or make such order, within its powers, as is “just and appropriate”, including making an award of damages where appropriate.
- Notice provisions: Section 35, which requires that the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission be notified of proceedings brought under the Charter, can operate as a disincentive to meritorious submissions, delay proceedings and increase compliance costs. Section 35 could be repealed or, alternatively, amended to provide courts and tribunals with discretion to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason.
- Auditing of public authorities: Section 41 could be amended to vest the Victorian Equal Opportunity and Human Rights Commission with an own motion power to inquire into and audit the compliance of a public authority’s policies, programs and practices with human rights.
- Savings provision: Section 48 of the Charter could be repealed or, alternatively, amended to provide that it does not apply to Part 3, Div 1 of the Charter. This would ensure that laws relating to abortion are subject to pre-enactment human rights scrutiny.
We are encouraging interested organisations and individuals to support the Premier to do the right thing and retain and strengthen the Victorian Charter. Those wishing to do so should write to the Premier or their local MP to indicate that there is strong community support for the Victorian Charter. Contact details for Premier Baillieu are available here.
Further information about the Victorian Charter and its impcat and operation is available here