Statement of Intent - Human Rights in Victoria - Department of Justice, Victoria

HUMAN RIGHTS IN VICTORIA

Statement of Intent May 2005

The Attorney-General’s Justice Statement was approved by Cabinet and released in May 2004. It established as a priority the need to ensure that human rights are valued and protected and that issues of inequality and disadvantage are demonstrably addressed by the justice system. The commitment also supported the Government’s agenda to restore democracy in Victoria and strengthen its democratic institutions.

A commitment was made to consult with the Victorian community on how best to protect and promote human rights in Victoria.

Establishing the Consultation – the Human Rights Consultation Committee
The Government believes that the views of Victorians can best be sought by the establishment of a committee of independent persons who are eminent in their fields and respected in the community. It has appointed four people to form the Government’s Human Rights Consultation Committee, (pictured l-r), Mr Andrew Gaze, Ms Rhonda Galbally, Professor George Williams (chair), Professor Haddon Storey QC. They will undertake the consultation and provide a report back to the Government on human rights issues in Victoria. The Committee will focus on identifying a human rights framework that serves Victorians’ needs in the future rather than engaging in an account of current and past policies and actions.

Context for the Consultation
Victorians are justifiably proud of their system of government and the rights and freedoms that it protects. We take for granted many rights that are still disputed in other parts of the world such as the right to vote, freedom of assembly and the right to a fair trial. The Government has already acted to improve and protect these rights by reforming the electoral system for the Legislative Council, and enhancing the independence of offices such as the Auditor-General and Director of Public Prosecutions.

The Government also has a strong record on addressing disadvantage. Its recently released Challenges in Addressing Disadvantage in Victoria maps out a comprehensive framework for further action to assist those who are most likely to experience hardship and disadvantage in our community.

The Human Rights Consultation Committee will continue this process of strengthening our democratic institutions and addressing disadvantage by examining what type of improvements could be made to protect and promote human rights in Victoria.

The human rights field is potentially very wide and the Government wishes the Committee to focus on those areas that the Government believes are most relevant to strengthening our democratic institutions and addressing disadvantage. The purpose of this document is to provide the Committee and the community with an indication of the scope of the issues which the Government considers should form the basis for the Committee’s consideration and for submissions and comment from the community.

Preferred Human Rights Model
The Government is concerned to ensure that the sovereignty of Parliament is preserved in any new approaches that might be adopted to human rights. In the Westminster system of government, a government is accountable through Parliament for its policies and actions. The community judges the record of a government at each election when it elects a new Parliament. A government should be able to pass laws and make policies that affect human rights on the basis that it will be accountable for those actions through the ballot box.

The Government is interested in a model similar to that used in the United Kingdom, New Zealand and most recently, the Australian Capital Territory, in which rights are contained in an Act of Parliament. The importance of human rights means that in practice legislatures are reluctant to modify the provisions of these Acts, but the principle of parliamentary sovereignty is respected in the power to make amendments if these are considered necessary.

The Government would focus on prevention and dispute mediation rather than litigation by ensuring that its policies and programs reflect good human rights practice and are therefore not likely to be challenged as breaching human rights standards. It is attracted to the procedures used in the UK, New Zealand and the ACT whereby legislation being introduced into Parliament is certified as complying with the jurisdiction’s human rights obligations. This ensures that Ministers and their departments consider the impact of proposed legislation and policies on human rights before they become law.

The Government does not wish to adopt a human rights model such as applies in the United States of America where the rights expressed in the constitutional Bill of Rights can be used to invalidate laws without recourse by the legislature. The Government believes that Parliament, as is currently provided for by the Victorian Constitution, should retain the final say, for which it can be held accountable by the people. Any model must operate within this constitutional framework.

Role of the Courts
The courts have an important role to play in interpreting the law and enforcing rights and obligations. The Government’s approach is to address human rights issues through mechanisms that promote dialogue, education, discussion and good practice rather than litigation. It is through such mechanisms that acceptance and support of human rights will be promoted in the community.

The Committee is therefore asked to focus on measures that would encourage continuing dialogue on human rights in the community and how they are balanced against each other.

Individual Rights of Action
Consistent with its focus on dispute prevention, the Government does not wish to create new individual causes of action based on human rights breaches.

Content of the Rights to be Protected
There are many international treaties and covenants that recognise human rights. Some of the rights are general, such as those found in the International Covenants on Civil and Political Rights (ICCPR), and on Economic, Social and Cultural Rights (ICESC), while others are specific to particular groups, such as the Covenants on the Rights of the Child, and to eliminate discrimination against women.

The primary purpose of this consultation is to identify those mechanisms that will strengthen Victorians’ enjoyment of their democratic rights and the institutions that protect those rights. Those who are living in poverty and people from marginalised communities have often had the most need of the protections offered by the basic rights found in the ICCPR, such as the rights to equality before the law, to a fair trial, freedom of expression, and to freedom of thought, conscience and religion. These essential features of a democracy are often taken for granted but are not clearly expressed or fully protected in our system of government, unlike in every other developed nation. The Committee is asked to focus on the rights in the ICCPR in considering a statutory human rights model as a starting point in its deliberations. The Government’s primary purpose in this initiative is to adequately recognise, protect and promote those rights that have a strong measure of acceptance in the community.

In addition, the Committee should consider whether the scope of operation of any of the ICCP Rights which are adopted should be altered or limited to remove any ambiguity and to add certainty. rights that are still disputed in other parts of the world such as the right to vote, freedom of assembly and the right to a fair trial. The Government has already acted to improve and protect these rights by reforming the electoral system for the Legislative Council, and enhancing the independence of offices such as the Auditor-General and Director of Public Prosecutions.

The Government also has a strong record on addressing disadvantage. Its recently released A Fairer Victoria maps out a comprehensive framework for further action to assist those who are most likely to experience hardship and disadvantage in our community.

Legislating for the protection of the ICESC rights, such as the right to adequate food, clothing and housing, is complicated by the fact that such rights can raise difficult issues of resource allocation and that many deal with responsibilities that are shared between the State and Commonwealth Governments. The Government also believes that Parliament rather than the courts should continue to be the forum where issues of social and fiscal policy are scrutinised and debated.

The issues associated with specific international covenants, such as the Covenant on the Elimination of Discrimination Against Women, are extensive. Recognising that many of these rights are already protected in domestic equal opportunity legislation, the Committee is not asked to examine the rights contained in those covenants.

Consultation Process
The Committee is to consult with the community by seeking and deliberating on written submissions from members of the Victorian community on this Statement of Intent for human rights. In considering the submissions that it receives, the Committee may also wish to arrange meetings and other forms of constructive discussion with those who have made submissions. The Committee is also to adopt strategies for engaging with marginalised and disadvantaged communities, as well as strategies to ensure that people from regional and rural areas are given the opportunity to have their say.

Recommendations
The Committee is asked to make recommendations on a suitable framework for human rights in Victoria based on the preferences expressed in this Statement of Intent and the views of the Victorian community expressed in the submissions that it receives and in subsequent consultations that it may undertake.

Report Date
The Committee is asked to report by 30 November 2005.