19 September 2011
Last Wednesday 14 September, the Scrutiny of Acts and Regulations Committee (SARC) of the Victorian Parliament tabled its final report on the review of the Victorian Charter of Human Rights and the Responsibilities Act (2006). If the committee’s recommendations are accepted courts will have “no role in enforcing human rights and providing remedies when they are breached.”
If implemented these changes to the Victorian Human Rights Charter could see Victoria become the “first state in the developed, democratic world to substantially weaken the legal protection of human rights.” SARC’s review of the Charter has been met with much condemnation from human rights groups with Liberty Victoria President Spencer Zifcak calling the report “bitterly disappointing.”
Conducted over five months, SARC’s review of the Charter recommendations stop short of repealing the Charter, but seriously diminishes the operational functions of the Charter and removes the obligations of public authorities and government departments to act in accordance with human rights standards.
Under the proposed changes to the Charter, SARC recommends the removal of sec. 38 of the Charter, which states that it is unlawful for a public authority to act in away that is incompatible with a human right. The removal of this section would weaken the protection of human rights under the law and remove any accountability and transparency.
According to Sarah Joseph, Julie Debeljak and Adam Flecther from the Castan Centre for Human Rights Law “if the State has no human rights obligations when making decisions that impact on the individual, what is the point of having rights?” Introduced in 2006 by the previous Labor Government the Charter is aimed at protecting vulnerable Victorians such as the homeless, people with a disability and mental illness and the elderly as well as encouraging greater executive and parliamentary accountability.
Under recommendation 35 of the review the role of the judiciary in enforcing human rights and providing independent oversight is effectively removed, nullifying the critical role that courts play in upholding rights. The report rejects suggestions from the majority of submissions made to the Committee review that further rights including economic, social and the rights of the child be included in the Charter and does not recognises the right to self-determination as a right that should be considered in the Charter.
Whilst the review did recommended the consideration of adding more rights included under the International Covenant on Civil and Political Rights, its failure to include other rights has been viewed as a lost opportunity. “The review should have been used as an opportunity to strengthen the human rights of all Victorians, such as by amending the Charter to enshrine the rights to adequate housing, education and health care. Instead if enacted, the recommendations will reduce government accountability and Victorian’s access to a fair deal if their rights are breached” Phil Lynch the Executive Director of the Human Rights Law Centre said.
Despite the recommendations of the parliamentary committee which was dominated by a majority of Coalition members, the Premier of Victoria Ted Baillieu has stated that the ”views expressed in the SARC report are those of cross-party committee members and not necessarily those of the Coalition government.” This suggests that the Baillieu government may not implement all the reports recommendations. The Victorian Government has six months to consider the committee’s report.
SARC’s review can be found here.
An excellent analysis of the review is up on the Castan Centre for Human Rights Law blog. It can be accessed here.