5 July 2011
In their submission to the Scrutiny of Acts and Regulations Committee Inquiry (SARC) and review of the Charter of Human Rights and Responsibilities Act 2006 the Law Institute of Victoria (LIV) has revealed the important role that the Charter plays in safeguarding and protecting human rights.
The Charter, which came into effect on the 1st of January 2008 and is up for review following 4 years in operation, creates procedures to ensure that public decision makers take into account human rights. Debate surrounding the Charter has focused on the impact and difference it has made for Victorians, with the parliamentary committee reviewing the charter calling for hard evidence on its benefits, whilst commentators such as Tep Lapkin have argued that the Charter is “all about transferring power from our elected parliamentary representatives to a coeterie of unelected judges beholden only to themselves.”
The LIV’s review suggests that Lapkin’s view is unwarranted. In its comprehensive review, including the audit of 209 cases in which the Charter was raised, LIV found that the use of the Charter has “benefited children and young people and has been used only in a small number of criminal cases” and that there has been a steady increase in the number of cases addressing the Charter with an average of 57 cases a year. This suggests that there has not been an “opening of the floodgates” as some have feared.
The report provides examples where the Charter has been used to protect the rights of the disadvantaged including the reversal of a decision to evict people from public housing on the basis of Charter rights and the case of four Aboriginal sibling children who successfully challenged a decision to place them in separate non-Aboriginal homes.
The case of Kracke vs Mental Health Review Board and Ors (April 2009) in which Justice Bell referred to the Charter as seeking to “enhance our system of government by protecting those human rights which are fundamental to the rule of law in a democratic society” also highlights the role that the Charter has played in ensuring just outcomes.
The LIV’s review demonstrates that the Charter has contributed to the interpretation of laws to ensure more consistency with human rights and the significant impact the Charter has had on the development of laws with an average of 78 per cent of proposed laws engaging human rights.
That said, the LIV’s report acknowledges the need for further reform and strengthening of the Charter including recommendations that the Charter should be amended to include additional human rights including economic, social and cultural rights and the right to self-determination in order to promote and protect all rights and responsibilities contained in international human rights conventions which Australia is a party to. The LIV’s President, Caroline Counsel stated that the report reinforces the value of the Charter for ordinary Victorians and the Charter is an “essential daily reminder that Australia is a signatory to international human rights conventions.”
The full review can be found here