Much recent debate regarding the need in Australia for legislative Charters of Human Rights fails to take into account the value added by such instruments. Charters of Human Rights have great potential to enhance public services and address disadvantage. They can improve lives.
It is too early to evaluate whether the Victorian Charter of Human Rights and Responsibilities is achieving its lofty but worthwhile ambition of entrenching a ‘democratic and inclusive society that respects the rule of law, human dignity, equality and freedom’. Looking further abroad, however, there is a growing body of evidence that the United Kingdom’s Human Rights Act 1998 – on which the Victorian Charter is modeled – has at least improved public policy and public services, particularly for marginalized and vulnerable groups.
The UK HRA, like the Victorian Charter and the ACT Human Rights Act, enshrines a body of rights that are derived from common sense principles of freedom, respect, equality and dignity. The right to life, to be protected from discrimination, to freedom from cruel or degrading treatment, to liberty, to a fair trial, to freedom of thought and expression, to respect for privacy and family life; these rights are fundamental to ensure that all people have the capacity and equal opportunity to fully participate in and contribute to our community.
Each of the UK, Victorian and ACT Acts establish a range of mechanisms to ensure that human rights are taken into account by parliament, the courts and public authorities when developing, interpreting and applying law and policy. The ‘dialogue model’ adopted by the Victorian Charter promotes a conversation between the three arms of government about how best to protect human rights in Victoria.
In the UK context, the Department of Constitutional Affairs, the Audit Commission and the British Institute of Human Rights have each concluded that the institutionalization of a human rights dialogue through legislation leads to better public services and outcomes.
In a major evaluation of the first five years of the UK HRA, the Department of Constitutional Affairs concluded that human rights had exerted a ‘powerful’, ‘positive and beneficial’ impact on the development and delivery of public policy and services. The UK HRA has enhanced scrutiny, transparency and accountability in government and ‘led to a shift away from inflexible or blanket policies towards those which recognize the circumstances and characteristics of individuals’. Services are required to be – and have become – more consumer-focused, integrated and efficient.
The British Institute’s research focused on the role of human rights legislation in addressing disadvantage and discrimination. Drawing on qualitative research and case studies, it concluded that the UK HRA has encouraged ‘new thinking’ and assisted decision-makers ‘see seemingly intractable problems in a new light’.
The British Institute’s further conclusion – that human rights legislation can assist disadvantaged people “to challenge poor treatment and improve their own and others’ quality of life” – is also supported by substantial quantitative evidence. In 2002-03, a review of all judicial review cases citing the UK HRA found that it was most frequently engaged in matters concerning homelessness, mental health, education, prisoners, immigration, aged care and disability services. In all of these areas – the common feature of which is vulnerability to ill-treatment or arbitrary exercise of power – human rights are making a positive difference.
A snapshot of recent cases is illustrative. Over the last three years, UK courts have held that the right to life is breached where the state fails to provide support to vulnerable persons so as to leave them destitute. They have held that the right to freedom from cruel treatment requires authorities to act to prevent children from ongoing abuse and neglect. And they have held that the eviction of a disabled woman from public housing in circumstances where the public authority had not ensured that she had adequate alternative accommodation violated the right to respect for private life and the home. These are common sense decisions that have improved lives. It is no surprise then that Victorian advocates and practitioners are already exploring the ways in which the Charter can promote the dignity and equality of the homeless, women in prison, people with mental illness and children with disabilities.
Charters of Human Rights have the potential to improve public services, promote more responsive and accountable government, and address disadvantage. As Sir Gerard Brennan, former Chief Justice of Australia, stated in a recent speech in Melbourne, Charters bring the various arms of government into a ‘constructive dialogue’ about human rights ‘and thus enhance the quality of good government’. With Victoria and the ACT leading the way, the focus now shifts to the federal sphere to realize this value.
Philip Lynch is Director of the Human Rights Law Resource Centre