New Year’s Day heralded more than just the start of another year; it marked an important milestone in Australian democracy as the Victorian Charter of Human Rights and Responsibilities became fully operational. Based on similar mechanisms which operate successfully in the UK, New Zealand and our own ACT, the Charter is a common sense form of democratic insurance that holds government accountable – one that ensures that those who make decisions make them in accordance with civil and political rights.
The Charter contains 20 rights that reflect four basic principles; freedom, respect, equality and dignity. For the first time in our state’s history, key rights are clearly protected in law including freedom of expression, freedom of peaceful assembly, taking part in public life, protection against inhuman or degrading treatment, freedom of thought, conscience, religion and belief, and protection of families and children.
The Charter creates a dialogue between the government, parliament, judiciary and community, in which all have a role to play in protecting, promoting and respecting fundamental rights and freedoms.
The government is required to take into account human rights in decision-making, service delivery and policy development. All new legislation now has to be accompanied by a Statement of Compatibility to inform parliament whether the new laws meet the standard set by the Charter.
In addition, respect for human rights is now a public sector value under the Public Administration Act 2004 and it is unlawful for a public authority to act in a manner incompatible with a relevant human right or to fail to give it proper consideration when making a decision.
In turn, parliament is required to scrutinise proposed legislation for any impacts on human rights.
Under the Charter, courts must interpret laws consistently with human rights where that is possible. If this cannot be done, the Supreme Court may issue a declaration of inconsistent interpretation. The declaration does not invalidate the law but it triggers a response in parliament and it is up to parliament to decide whether to amend the law or retain the status quo.
The Charter does not transfer power from Parliament to the judiciary – in fact the opposite is true. Parliament plays the primary role in protecting human rights and in balancing rights with other public policy interests.
Claims by some critics that the Charter will result in more litigation have not been borne out when you look at precedents in other jurisdictions. For example, the UK Annual Court Report for 2001-2002 stated that ‘there is no evidence that the Human Rights Act has increased the number of cases lodged, nor that hearing times have lengthened since the implementation of the Act’.
Of course along with rights, come responsibilities. The Victorian Charter makes it clear that the enjoyment of specific rights carry special duties and responsibilities.
Reasonable restrictions can be placed on people’s rights in order to respect the rights and reputation of others, to protect national security, public order, public health or public morality. For example, exercising the right of freedom of expression does not mean it is acceptable to unlawfully attack another person’s reputation.
Similarly, the Charter does not stop the government from taking strong and decisive action on issues of state and national security. There will be situations in which rights will be limited in the public interest but such limitation must be fully explained and justified. This provides a transparent process by which rights and duties can be appropriately balanced and it will encourage an open and healthy debate about what limits can be justified in a civilised society.
With respect to the operation of the Charter, New Years Day marked an inception, not a culmination. I have established a Human Rights Leadership Forum that will help guide the Charter’s operation and promote a rights culture across the public service, legal profession, Parliament and the wider community. I am very pleased that the Human Rights Law Resource Centre has accepted my invitation to be a member of this Forum.
In addition, the Victorian Equal Opportunity and Human Rights Commission will report to me annually on the Charter’s operation, provide education and when, requested by public authorities, review their policies and practices for Charter compliance.
The Charter will be reviewed after four years and again after eight years of operation. But in the meantime, it’s incumbent upon all of us to nurture this Charter into existence and entrench a respect for basic human rights and freedoms across Victorian civic life.
The Hon Rob Hulls MP is Deputy Premier and Attorney-General for Victoria