Government response to Charter review will reveal commitment to democracy and accountability

Next week, Victorians will learn a lot about their Government’s commitment to fairness, transparency and democratic accountability. We will also learn about the strength of the Premier’s leadership as Cabinet meets to determine the future of Victoria’s Charter of Human Rights. Late last year, the Premier said that the “Charter of Human Rights has delivered benefits to Victoria and should not be repealed”. It is well known that others in the Government disagree. If they have their way, Victoria will become the first state in the developed, democratic world to weaken or repeal statutory or constitutional human rights protection and the Premier’s authority will have been significantly diminished. 

The Charter has been operating for five years. It was reviewed by a parliamentary committee last year. The government must announce its response to the review by 14 March.

Disappointingly, the government dominated committee made recommendations that would render the Charter completely ineffective. For example, it recommended that the Charter be stripped of provisions that require government departments and public authorities to act compatibly with human rights.

Remarkably, it also recommended that our independent courts and tribunals should have no role, or a radically reduced one, in holding government to account. Nor would the courts have any role in providing people with remedies when their human rights are violated. Such recommendations, if implemented, would constitute repeal by another name.

When the committee tabled its report last September, the Premier was quick to distance himself, saying that the views are “those of the cross-party committee members and are not necessarily those of the Coalition Government”. He was right to do so.

The report lacked any sound evidentiary basis. Of a total of almost 4,000 submissions to the committee, 95% supported retaining or strengthening the Charter, citing significant evidence of its benefits. This consisted of evidence as to the Charter’s effect in promoting greater government accountability, more responsive public services and more compassionate treatment for some of Victoria’s most vulnerable people. These included people with disability, people with mental illness, children and the homeless.

The evidence also demonstrated that predictions of adverse consequences arising from the Charter have been unfounded. The Charter maintained the sovereignty of parliament. There has been no “flood of litigation”. The Charter has had only minimal impact in the area of criminal law. And the Charter has been implemented at the modest cost of just 50 cents per Victorian per year.

Some in government have argued that of the three pillars of our democracy – parliament, the government and our independent courts and tribunals – only parliament has a legitimate role to play in upholding human rights. They are right to assert that parliament has a critical role. But it’s not an exclusive one.

For most Victorians, interaction with government does not consist of participating in parliamentary discussion and debate. Instead it consists of dealing with government departments and public services day to day. For most of us, our relationship with government comes through things like catching public transport, getting permits or approvals from local councils, accessing health services or sending our kids to school.

Yet, if the anti-Charter advocates have their way, Victorians will have no way to demand that these bureaucracies respect and protect our human rights and no access to justice or enforceable remedies if they do not.

The Premier was right to recognise that “the Charter of Human Rights has delivered benefits”. These benefits have flown largely from the interdependence and complementary character of the Charter’s provisions. They require government agencies to act compatibly with human rights and to provide people whose rights have been violated with access to the courts to stop further breaches.

It is the operation of these provisions, and not those relating to parliament, that has strengthened legal protections and oversight for people with serious mental illness, improved access to sexual and reproductive health care, provided additional support for children with autism, and prevented the eviction of poor and vulnerable Victorians into homelessness. It is incumbent on members of the government who propose to weaken the Charter to explain why they do not support these positive outcomes.

As a government elected on a platform of making Victoria a more fair and just community, it should be the case that all members of government have a commitment to the legal protection of fundamental human rights. Indeed, the Liberal Party constitution talks of the “inalienable rights and freedoms of all peoples” and the “role of law and justice”.

Now, after five years of the Charter’s operation, the evidence is in. The Charter provides Victorians, particularly people who are disadvantaged, with substantial benefits.

If the Baillieu Government is serious about evidence-based policy, accountable government and a fair and just Victoria, it will maintain and strengthen the Charter, not emasculate it. The credibility of the Premier, and the human rights of all Victorians, depends on it.

Philip Lynch is Executive Director of the Human Rights Law Centre and Spencer Zifcak is President of Liberty Victoria and Allan Myers Professor of Law at the Australian Catholic University.

This article was written for and first appeared in The Age.