Victoria’s Charter of Human Rights and Responsibilities has now been in force for three months. Although it is too early to evaluate the Charter’s impact, some early insights and reflections are timely. UK Daily Times columnist Melanie Phillips (The Age, 21 March 2007) would have us believe that Victoria has enacted a ‘judicial delivery system for cultural Marxism’. Conservative politicians and commentators made similarly dire predictions prior to the Charter’s commencement, deriding it as a ‘monstrous attack’ on democratic traditions that would empower minority groups and left-wing judges. Meanwhile, the Charter’s proponents describe it as landmark legislation that will strengthen democracy, promote accountability, and ensure respect for fundamental rights and freedoms.
So what do the first three months of the Charter – and the first six years of the UK Human Rights Act on which it is based – tell us about its likely impact and implications?
First, the Charter is likely to improve public services. A recent evaluation of the UK Act undertaken by the Lord Chancellor found that human rights have exerted a ‘powerful’, ‘positive and beneficial’ impact on the development and delivery of public policy and services. Services are required to be – and have become – more consumer-focused, integrated and efficient. A human rights focus has also led to ‘better public service outcomes’. The review concluded that ‘the Act has led to a shift away from inflexible or blanket policies towards those which recognize the circumstances and characteristics of individuals’. In other words, the Act has made services more responsive to human than bureaucratic needs.
A second reflection from the UK is that the Charter will not transfer power from the legislature to the judiciary. The Lord Chancellor’s review found that the UK Human Rights Act has not significantly altered the constitutional balance between the legislature, the executive and the judiciary.
Thirdly, and perhaps most importantly, the UK experience tells us that the Charter will enhance decision-making processes across all levels and arms of government. The Charter requires that parliament consider and report on the compatibility of proposed legislation with human rights. It requires that public authorities give ‘proper consideration’ to, and act compatibly with, human rights. It requires that the courts interpret legislation consistently with human rights unless it is clear that parliament intended otherwise. The value of these mechanisms is that, where applicable, decisions must now be made having regard to explicit and transparent standards and values. Moreover, these standards and values are universal and agreed: the right to life; to be protected from discrimination; not to be tortured; to liberty; to a fair trial; to freedom of thought, expression and assembly; to respect for privacy and family life. No reasonable person would contest the importance and validity of these rights. That is not to say that the Charter will spell the end of bad public decisions, whether by the parliament, public authorities or the courts. As before the enactment of the Charter there will be good decisions and bad decisions and both will be sought to be justified.
In Victoria, the Charter has featured prominently in relation to one proposed Bill and one judicial decision to date. Parliament considered the Charter in the context of the Major Events (Aerial Advertising) Bill, which seeks to circumscribe ‘aerial ambush marketing at major events in Victoria’ by making it an offence to display commercial aerial advertising without authorization. The responsible Minister concluded that while the Bill does restrict the right to freedom of expression, that limitation is reasonable and proportionate and therefore compatible with the Charter. Similarly, in the recent decision of R v Williams, the Supreme Court held that while the Charter may enshrine a right to legal representation in certain circumstances, this does not require that a trial be stayed for over six months until the defendant’s lawyer of choice is available.
In the UK, recent court decisions have held that, in certain circumstances the right to life requires that hospitals are under an obligation to provide life sustaining treatment where it is in the best interests of the patient. They have held that the right to freedom from cruel treatment requires authorities to act to prevent children in a family from ongoing abuse and neglect. And they have held that the right to family required that an elderly couple who had been married for over 30 years and who were separated and moved to different care homes be reunited and enabled to live together.
These are common sense decisions. They may or may not have been made with the same outcome without the Charter or the UK Human Rights Act. What is fundamentally different, however, is that the decisions are now made in a way that is more transparent and accountable. They are justified by explicit reference to human rights rather than implicit or even unacknowledged reference to vague notions of ‘public interest’, ‘public policy’ or even personal interests and prejudices. Perhaps that is why human rights so affront conservative politicians and commentators like Phillips.
Philip Lynch is Director of the Human Rights Law Resource Centre