Ever since its enactment in 2006 as the first state human rights act, the Victorian Charter of Human Rights and Responsibilities has attracted exaggerated claims from politicians, being described as everything from ‘powerful’ and ‘transformative’ to ‘dangerous’ and ‘weak’. Five years on the Charter is being reviewed. It is imperative that this review be guided by evidence and real-life experience, not political hyperbole. There should be a bipartisan commitment to use the review to strengthen the human rights of all Victorians, not to pursue a pre-determined ideological agenda or short-term political gain.
The review must build on the bipartisan consensus that respect for human rights is essential for a community that is fair, just and inclusive. It must take note of the strong evidence that where human rights are promoted and protected in law they are more likely to be respected and protected on the ground. The legal protection of rights is particularly important for vulnerable or disadvantaged groups, such as people who are homeless, people with mental illness, Aboriginal and Torres Strait Islander peoples, and people with disability.
While some people are understandably pessimistic about the future of the Charter given historic statements by the Attorney General, Robert Clark, that it is ‘dangerous and hypocritical’, some heart should be taken from his more recent comments. In a speech during Human Rights Week in December 2010, for example, the Attorney spoke about the importance of ‘upholding human rights’, ‘effective scrutiny of laws against international human rights standards’ and ‘improving access to affordable and effective remedies’ for human rights breaches. The logical corollary of these principles is to strengthen and not weaken the Charter in a number of ways.
First, consistent with the Attorney’s commitment to ‘enhancing the rights and liberties of Victorians’, the Charter should comprehensively enshrine all civil, political, economic, social and cultural rights. It should also recognise that certain human rights, such as the right to protection from torture, are absolute.
Second, the Attorney has stated that he ‘supports scrutiny of proposed laws against international benchmarks’. Consistent with this support, the Baillieu Government should strengthen the Charter’s provisions relating to human rights scrutiny and compatibility of proposed legislation. The Government should also consider establishing a specialised Human Rights Committee, similar to that currently proposed with bipartisan support at the Commonwealth level, to enhance parliamentary engagement with human rights.
Third, far from resulting in a ‘flood of litigation’, the number of cases which have resulted from Charter has been a trickle. This is as it should be. The Charter is intended to prevent human rights abuses not through litigation but through legislative safeguards and a legal obligation on public authorities to incorporate human rights into their policy and decision-making processes. It is crucial, however, that people who are victims of human rights breaches have access to effective remedies. The Charter should be amended therefore to ensure that the human rights are actionable and enforceable in appropriate courts and tribunals, including the Victorian Civil & Administrative Tribunal, and that these courts and tribunals are empowered to make such orders as are required to do justice for victims of human rights breaches.
It is significant that the terms of reference given to the Scrutiny of Acts and Regulations Committee to conduct the Charter review refer to the need to ‘make use of evidence’.
If the Committee is true to this principle, they will find that, while the Charter has not been a panacea to disadvantage or prevented every human rights breach, there is solid evidence that it has had a positive impact on legislative and policy development and on public service delivery and outcomes. It has enhanced the scrutiny of proposed laws and integrated human rights considerations and safeguards into legislative and policy-making processes. At the service delivery level it has effected some systemic reform, such as improving access to support services for children with autism and reforming the processes of the Mental Health Review Board. It has also protected human dignity in many individual cases, such as by preventing the eviction into homelessness of a single father and his four-year old boy. In the conduct of the review, it is critical that the Scrutiny Committee hears first hand from Victorians who work with the Charter and disadvantaged groups who have benefited from its protection.
The Committee is also asked in the terms of reference to consider previous human rights inquiries. It should take note of the very strong support for the protection of human rights in law, with 94% of submissions to the 2005 Victorian human rights inquiry supporting a Charter of Rights and 87% doing so in the 2009 national consultation.
The Attorney General is correct to assert that the Charter is not the ‘be-all and end-all of justice and fairness for Victorians’. Five years on from its enactment the evidence is clear, however, that it is a valuable and necessary law and assists to fill gaps in human rights protections in an efficient and cost-effective way.
The Scrutiny Committee is due to report on the future of the Charter by 1 October. The review is an opportunity for the Baillieu Government to strengthen the law to better protect human rights and make Victoria a fairer, stronger and more inclusive community. Having been the first Australian state to enact a Charter of Human Rights, Victoria should not now go down in history as the first democratic state in the developed world to weaken or repeal one.
Philip Lynch is Executive Director of the Human Rights Law Centre. You can follow the HRLC on Twitter @rightsagenda.