In 2006 Victoria led the way when it became the first Australian state to pass a Charter of Human Rights. The Charter was enacted after a period of significant public consultation, with Victorians overwhelmingly calling for human rights to be better protected in law and practice. For the last three years, the Victorian Charter has quietly provided much-needed human rights protection for us all, particularly for marginalised and disadvantaged people in Victoria. With a change of government, the future of Australia’s first state Charter is now uncertain. Since its enactment, the Charter has secured beneficial outcomes for people in different ways. Most of its impact has not been in courtrooms, but in peoples’ everyday interactions with public services.
The Charter has been used by young people with acquired brain injuries to prevent being moved to live in aged care facilities. The Charter was used by people affected by Black Saturday to ensure their voices were heard in the Bushfire Royal Commission. Following arguments that the right to life required the Commission to ensure involvement by families of people who died or were seriously endangered by the fires, the Commission adopted a practice of hearing daily evidence from persons affected by the fires.
The Charter requires government to comply with human rights. This legal obligation has been the catalyst for cultural change in the way that government services are delivered. The Victorian Equal Opportunity and Human Rights Commission described the Charter as ‘reinvigorating and reinforcing existing ethical frameworks and principles of practice’.
Because government is legally bound to comply with human rights, and because sometimes it has not done so, some people have gone to court to enforce their rights. This has led to fair and common sense outcomes that are critically important to the lives of people involved.
For example, a man subject to involuntary and invasive mental health treatment was successful in obtaining judicial review of his treatment after the Mental Health Review Board delayed his hearing for over a year. In another case, a man and his three year old son who sought to remain in public housing following the death of the man’s mother, the tenant, from cancer relied on the right to family and home under the Charter to avoid being evicted into homelessness. The Charter has achieved these results because it promotes cultural change in government and because people have legally enforceable rights. It’s that old adage of the carrot and the stick.
There are two essential elements that give the Charter teeth: first, government’s duties to consider and comply with human rights; and, second, the ability to enforce rights in the courts. Both aspects are crucial to ensuring remedies for violations and the inspiration for cultural change.
So what will the change of government mean for our Charter?
In his Human Rights Week address the Attorney-General, Robert Clark, spoke for the first time since being appointed about his plans for the Victorian Charter. While stopping short of saying he will repeal it, the Attorney described the Charter as ‘riddled with flaws’, saying that it ‘could not continue in its current form’. Instead, of a comprehensive Charter enshrining legal rights and responsibilities, he expressed a preference for ‘clear statements of government services and the standards to which individuals are entitled’.
The Attorney’s comments are worrying for two reasons.
First, the Attorney’s vision for the Charter appears to be of an unenforceable and aspirational instrument, which lacks both of the key ingredients that give the Charter teeth. If you remove government responsibilities and judicial oversight, as suggested by the Attorney, you remove the very mechanisms that provide protection and create real and beneficial change. Just as drink-driving laws are sometimes necessary to regulate what should be common sense behaviour, so too are human rights laws sometimes necessary to regulate what should be common sense public services.
Secondly, the Charter is not a partisan document and it would be a mistake for the Charter to be seen as part of a left agenda or to be used as a political football.
Human rights are not the domain of the right or the left but are fundamentally a set of universal principles that seek to advance the freedom, respect, equality and dignity of all human beings. Human rights have had champions on all sides of politics and are very much aligned with the tradition of Australia’s ‘Liberal’ party. It was Gough Whitlam who signed the International Covenant on Civil and Political Rights, on which the Charter is based, but Malcolm Fraser who, in one of his first acts as Prime Minister, ratified and brought it into force. Human rights laws have long been championed by conservative politicians; Sir Winston Churchill was a key early proponent of the European Convention and a British Human Rights Act, calling for a charter of human rights ‘guarded by freedom and sustained by law’.
The Attorney has said that he wants to deliver justice and fairness and services of a high standard. As the Attorney said, the Charter is not the ‘be all and end all’ of fairness and justice, but it is now a fundamental part that framework in Victoria.
The Charter will be reviewed in 2011. Having been the first Australian state to enact a Charter of Rights, let’s not become the first to take the regressive step of repealing one.
Emily Howie is Director of Advocacy and Strategic Litigation and Phil Lynch is Executive Director with the Human Rights Law Resource Centre