Editorial: Positive News On The Charter But Baillieu Keeps Us Waiting

By André Dao

Yesterday, on 14 March 2012, the Baillieu Government released its response to the Scrutiny of Acts and Regulations Committee’s (SARC) review of the Charter of Human Rights and Responsibilities Act 2006. The good news is that the Government does not intend to substantially weaken the Charter, which was a distinct possibility after SARC’s review essentially recommended that the Charter be stripped of its operative provisions. Rather than a Charter of Human Rights, we would have been left with a Parliamentary and Executive scrutiny act.

Instead, the Government has affirmed that it is “strongly committed to the principles of human rights and considers that legislative protection of those rights provides a tangible benefit to the Victorian community.” In fact, the Government has agreed to consider including additional rights from the International Covenant on Civil and Political Rights that are not already protected by the Charter. These include:

  • the right to compensation for wrongful conviction (Article 14(6) of the ICCPR);
  • the duty of the State to respect the liberty of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions (Article 18(4) of the ICCPR);
  • prohibition on war propaganda and religious and racial hatred (Article 20 of the ICCPR);
  • the right to found a family (Article 23(2) of the ICCPR); and
  • the right to birth registration (Article 24(2) of the ICCPR).

In addition, the Government intends to introduce legislation which will allow either House of Parliament to require a Minister or MP proposing major amendments to a Bill to table a statement of compatibility with the Charter. It will also repeal Section 31, which contained a redundant process for Parliament to pass laws that “override” the Charter. The section is redundant because there is no need for a separate process for overriding the Charter, as Parliament already has the “final say” – a  good example of why claims that the Charter was “undemocratic” or eroded Parliamentary sovereignty were wide of the mark.

Disappointingly however, the Government has decided to ignore the number of submissions which recommended the inclusion of non-ICCPR rights – in particular, economic, social and cultural rights, women’s rights and children’s rights. They agreed with SARC’s assessment that there is no “problem in Victoria’s existing laws” that would be remedied by the enshrinement of these rights – despite the evidence from groups like the Public Interest Law Clearing House and Domestic Violence Victoria. In the end, it seems to come down to the fact that the Government’s “priority is improving the operation of the Charter in relation to civil and political rights.” As in other Western jurisdictions, this priority given to civil and political rights can further marginalise already vulnerable groups and fails to address the need for systemic change.

Another disappointing decision by the Government is its refusal to protect the right to self-determination. Agreeing with SARC, the Government considers the right to be too “flexible and not susceptible to precise definition.” Instead of enshrining the right, the Government instead commits to “continue to work with Indigenous communities to improve the lives of Indigenous people in Victoria.” Yet if we have learnt nothing else from decades of failed policy in relation to Aboriginal people, it is that they must have a greater, and indeed, controlling, role in the determination of their own fate. It is a lesson that is reiterated by every United Nations human rights report or observation, including the UN Special Rapporteur on Indigenous Australia.

Again, despite plenty of evidence to the contrary – including from the Victorian Bar Association – the Government has decided that a separate cause of action and damages for breach of the Charter aren’t a good idea.

Still, despite these disappointments, the real question mark over the Government’s response was over the role of the courts and public authorities in the Charter – and if the question isn’t quite resolved it at least looks positive. Specifically, the Government affirmed its belief in “an ongoing place for the courts in protecting rights in relation to the Charter.” Given how effective this role has proven to be in protecting human rights – for example, the Homeless Persons’ Legal Clinic has used the Charter to prevent 42 people from being made homeless) – it is clear why many human rights groups are regarding this response as a victory for “evidence-based policy, accountable government and a fair go for all Victorians.”

The catch is that the Government also acknowledges SARC’s concerns on this matter. So rather than making a definitive decision, the Government has indicated that it will seek legal advice regarding the role of the courts and tribunals under the Charter and its impact on public authorities.

Ostensibly, this legal advice is being sought because two major decisions, Momcilovic and Sudi, were handed down in the High Court and Court of Appeal respectively, just a week before SARC submitted its review. Certainly, those cases raise a number of questions about the operation of the Charter, in particular Section 7 which defines how a right may be limited, and Section 38, which makes it unlawful for a public authority to act in a way that is incompatible with a human right. The latter issue is of particular importance as it requires public authorities – including public officials, the police, and Ministers – to think about human rights when they deal with ordinary people. Far more than courts, the general public has a far greater amount of interaction with public authorities, and it is in those everyday interactions that rights are most often infringed.

However, as Professor Sarah Joseph from the Castan Centre for Human Rights Law has noted, the Government has had six months to seek legal advice – why are they only doing so now? The answer might be that Cabinet was deeply divided – after all, the Attorney-General, Robert Clark, has been one of the Charter’s fiercest critics. Either way, it means that the final form of the Charter is still far from clear. The silver lining is that it keeps human rights on the front page of the news, and hopefully, at the forefront of people’s minds.