New Bench Book will help bolster human rights in Victoria

By Katy Thorpe | 11 Sep 16

The Victorian Charter of Human Rights and Responsibilities was passed in 2006 and started operating in two stages over 2007 and 2008. Both critics and supporters of the Charter predicted robust levels of engagement with it in the courts. Those in favour expected a healthy shake up, while more doubtful observers forecasted a flood of human rights arguments the courts were neither equipped nor suited to deal with. Both were wrong; Victoria got more of a dribble than a deluge of cases.

There are a number of possible explanations for the Charter’s underuse. The introduction of human rights legislation was controversial and the end result a compromise. No independent cause of action exists for breaches of Charter rights and the remedies for rights breaches (when they can be piggy-backed onto other claims) are unclear.

In addition, the provision of the Charter that deals with interpreting statutes in line with Charter rights was the subject of a complex High Court decision with no clear majority. The effect has been to render the provision largely ineffective compared to similar provisions in, for example, the United Kingdom and New Zealand. The 2015 review of the Charter resulted in a number of recommendations to address these shortcomings. But, with relatively weak operative provisions to begin with, and confusing interpretation by the High Court, in its current form the Charter is perceived as unlikely to affect litigation outcomes.

Despite this pessimism, the Charter currently can and does affect outcomes, and has the potential to improve the law by bringing it more closely in line with the essential community values articulated in its rights. This is particularly true when Charter arguments are fully canvassed and the court is prepared to engage meaningfully with those arguments. And therein lies another problem: some legal professionals treat the Charter rights with disdain, or dismiss them as unnecessary to our particular legal system. We rarely see the quality of legal analysis applied to human rights issues that we see and expect in other areas of law.

A compounding difficulty is the fact that the Charter rights are based on an international convention. This challenges practitioners to source relevant international jurisprudence, only to then consider the legal, structural and linguistic differences between the relevant international human rights document and the Victorian Charter to determine if those international materials are relevant to the Charter right in question. This is a task that must be carried out in the knowledge that many of the rights in the Charter are already reflected in the common law.

One key solution to these problems is education. That was the conclusion of Chief Justice Marilyn Warren after a profession-wide Charter conference in 2014, of a Charter-litigation working group of lawyers and judges set up to determine the causes of the disappointing levels of Charter use, and of the 2015 Charter Review team.

All three of those sources recommended or supported the Judicial College of Victoria’s development of a comprehensive Charter resource. And so we began work on the Charter of Human Rights Bench Book.

How we developed the Bench Book

The College writes and maintains a number of legal resources for judges, magistrates and Victorian Civil and Administrative Tribunal (VCAT) members, each of which is overseen by an editorial committee. These editorial committees are usually comprised of members of our target audience: judicial officers. In the case of a Charter Bench Book, however, we wanted to reach not only judicial officers but the whole legal profession. Accordingly, we established an editorial committee made up of judicial officers from the Supreme, County and Coroners’ Courts and from VCAT, as well as human rights experts from the Victorian Equal Opportunity and Human Rights Commission, Victorian Government Solicitor’s Office and Law Institute of Victoria.

My colleagues from the College and I researched the Charter and wrote the initial content for the Bench Book, before taking each chapter to the committee for their input. The meetings were lively and the debate robust and informed – helped along by various committee members often representing opposing sides on a particular issue. After each meeting, we would go back to work on the relevant chapter looking into the additional insights the committee had offered.

We launched the Bench Book on 10 May 2016, with a fantastic speech on adjudicating human rights by Justice Kate O’Regan, a former judge of the acclaimed post-apartheid Constitutional Court of South Africa.

How the Bench Book will influence human rights law in Victoria

It has been acknowledged across the judiciary and the legal profession that human rights law is misunderstood, viewed as too nebulous or too difficult. As the 2015 Charter Review report states, education is the key to unlocking the Charter’s value.

The Judicial College of Victoria’s Charter of Human Rights Bench Book provides an important part of that education. It covers, in detail, each human right protected by the Charter, with reference to international, foreign and domestic law, and each of the Charter’s operative provisions as they have been interpreted and applied by Victorian courts. The College will update the Bench Book as new Charter cases are handed down, and in response to any Charter reforms flowing from the 2015 Review recommendations.

The Bench Book provides a current and clear statement of the law, aimed at the judges and lawyers who practice in Victoria, for whom the Charter is an important, if neglected, part of the law.