Rights, Responsibilities and RespectThe Report of the Human Rights Consultation CommitteeChapter 1
Chapter 1 - Does Victoria need a new law on human rights?1.1 SummaryThe Human Rights Consultation Committee received 2524 submissions about the protection of human rights in Victoria. 84 per cent of formal submissions (or 94 per cent with petitions and the like) support a change in Victorian law to better protect human rights. Given the community response and the strength of the arguments for reform, the Committee believes that change is warranted and that a new law would better protect and promote human rights in Victoria. We were moved by the powerful stories many Victorians told about how the law at times fails to protect even their most basic human rights. We accept the view of these people that a new human rights law could provide a more coherent and accessible code of conduct for government, making those who wield power more accountable to the people. The Committee considers that Victoria should enact such a new law to enhance our democracy and make Victoria a better place to live. Consistent with many of the submissions and the preferred approach of the government, the Committee believes that change in this area cannot occur all at once. The important thing is to make a start in the right direction, with reform that will support further discussion in the community and evolution in the law over time. The best way of achieving this gradual reform is through an ordinary piece of legislation, like those now operating in the Australian Capital Territory, New Zealand, and the United Kingdom. Over time, the Committee believes that the new law, which we believe should be called the Charter of Human Rights and Responsibilities, will help to build a stronger culture of human rights in Victoria. It would also play an important symbolic and educative role and could give expression to important values such as equality, diversity, respect and inclusion. The Charter would bring into one document the rights that Victorians as a community believe should be respected and observed, based on our common humanity. To capture these ideals, a preamble should be included at the beginning of the Charter. It should refer to both rights and responsibilities and recognise the unique position of Indigenous Victorians. I write this submission, for the coming generation. A Human Rights Charter gives us the opportunity to develop a vision for how we want to see our future. I write it for my grandson, Tykeim Sol Rashid, who is 2. He is at an age where he will happily sit in a hammock and sing with his grandmother, pick flowers to give to the people he loves, test his physical ability by jumping and skating … I want him never to be made to feel bad about who he is or his choices about how he lives his life as long as he respects and protects other peoples rights. It is for him and others like him that I am excited about the prospect of a Human Rights Charter for Victoria. I want him to know what his rights are and how he can expect to have them protected. The other side of that is that I want for him to know and respect the rights of others. Submission 134: Marg D’Arcy 1.2 Is change needed to better protect human rights?1.2.1 What are human rights?Human rights allow us to live with dignity and value. They are entitlements that attach to all people. By respecting a person’s human rights, we make a statement that we value them as a fellow member of the human race. Many human rights are well known. The right to vote is one example, as is giving a person a ‘fair go’ by not unfairly discriminating against them. Freedom from torture or cruel and degrading treatment is another well known human right. Human rights relate to the way governments operate and help to ensure that people are treated fairly and that governments do not abuse their power. International human rights standards that Australia has agreed to meet In the aftermath of the Second World War, the United Nations adopted the Universal Declaration of Human Rights 1948, which sets out human rights as ‘a common standard of achievement for all peoples and all nations’. It says that:
Australia has since taken part in the drafting and has ratified a number of human rights treaties. The International Covenant on Civil and Political Rights 1966 contains rights such as the right to vote, to freedom of speech and to freedom of religion. The International Covenant on Economic, Social and Cultural Rights 1966 includes rights to basic living standards, such as access to food, housing, social security, education and health. Other treaties deal with rights of particular groups, such as the Convention on the Rights of the Child 1989 or with particular human rights, such as the International Convention on the Elimination of all Forms of Racial Discrimination 1966. 1.2.2 Is there community support for a Charter?The committee received 2524 submissions in a variety of formats. 84 per cent of formal submissions (or 94 per cent with petitions and the like) expressed support for a change in Victorian law to better protect human rights. This view is held across the State in equal measure in city and rural areas and across all sections of the community. Significantly, the Committee noted that at the 55 community meetings we held across the State, the more people learnt about their system of government, the more they tended to favour change. This was particularly the case in regard to concerns about giving judges too much power. Many people were reassured to hear that a Charter can be an ordinary Act of Parliament and does not have to be the same as the United States Bill of Rights. Almost all of the 161 community and other organisations that made a submission supported the idea of better protection for human rights in Victorian law (although it should be noted that they also expressed a wide range of views as to how this should be done, with many arguing for reform that goes beyond what we recommend in this Report). Organisations in favour of change in some form included key legal groups, community organisations from many sectors, local councils, women’s agencies, disability groups, groups representing older people and younger people and organisations representing gay, lesbian, bisexual, transgender and intersex communities. Many faith-based groups also argued that human rights should be better protected in the law, including the Justice and International Mission Unit of the Uniting Church in Victoria and Tasmania, Melbourne Catholic Commission for Justice, Development and Peace, National Council of Jewish Women Victoria and St Luke’s Anglicare. Very few organisations opposed change. They included faith-based groups such as the Australian Christian Lobby, Australian Family Association and the Salt Shakers (Christian Ethics in Action). The submissions raised many arguments for and against a Charter of Rights in Victoria. Sometimes the arguments were the opposite sides of the same point: for instance, some submissions said the protection of human rights in Victoria was inadequate, while other submissions said the protection of human rights in Victoria was adequate. Other arguments were quite separate. We list and discuss the arguments for and against a Charter in the following pages. 1.2.3 Arguments for a CharterThe vast majority of submissions to the Committee said that change is needed to better protect and promote human rights in Victoria. The main reasons given were:
We discuss these arguments below.
The current protection of human rights is inadequate A large number of submissions stated that rights are not adequately protected in Victoria. Some people pointed to gaps in the existing legal protection of human rights. (1) Benjamin Skepper, for example, said: ‘A Charter is highly overdue. We have extremely limited Constitutional protection of rights in Australia.’ (2) Jonathan Wilkinson gave a few specific rights as examples: ‘I believe the protection of every citizen’s rights to privacy, marry and form a family, to due process of law and to humane treatment in detention or prison are currently not given enough protection.’ (3) The Law Institute of Victoria said that the current laws are not always being applied or respected. (4) The Australian Lawyers Alliance expressed the views of many when they said: The fabric of human rights in Australia resembles more of a patchwork quilt, frayed at the edges, than a secure and comprehensive regime of rights and freedoms. (Submission 1017) Human rights are currently protected in Australia by the Australian and Victorian Constitutions, legislation, the common law and international law. For example, the Australian Constitution protects some rights, although generally only against Federal and not State laws. An example of this is section 116 of the Constitution, which contains the right of freedom of religion. The High Court has also implied certain rights from the Constitution. (5) Federal legislation also protects some human rights, for example anti-discrimination legislation and laws protecting privacy. (6) In addition, the federal Human Rights and Equal Opportunity Commission oversees the protection of the rights in these Acts and has investigatory and reporting powers. In Victoria, the Equal Opportunity Act 1995 prohibits discrimination and sexual harassment. Human rights provisions are also contained in other Victorian legislation, including the Electoral Act 2002, the Racial and Religious Tolerance Act 2001, the Information Privacy Act 2000, the Freedom of Information Act 1982, the Evidence Act 1958 and the Crimes Act 1958. Human rights are also protected through the common law, which is made by judges in the cases that come before them in court. Examples include the Mabo case (which recognised Aboriginal native title) and the Dietrich case (which recognised that a trial may be stopped or ‘stayed’ if a person accused of a serious crime cannot afford a lawyer and the government has refused legal representation). There is also limited protection of rights through international channels. (7) The Committee agrees that there are gaps in the current protection of rights. Professor Marcia Neave and Professor Spencer Zifcak gave the following examples: "Many other human rights recognised by international law are not protected by Victorian law. There is, for example, no provision which prevents legislation being enacted to create criminal offences retrospectively, no legislative prohibition on the use of torture or cruel, inhuman or degrading treatment and no legislation protecting freedom of speech. Indeed freedom of speech is what is left over after the censorship laws, defamation, contempt of court, contempt of Parliament, sedition, criminal blasphemy, radio and television programme standards and other minor limitations have been taken into account." (Submission 840) Professors Neave and Zifcak also identified gaps in Victorian privacy and equal opportunity legislation. For example, they stated that privacy law relates mainly to ‘information privacy in the public sector and with health information and [does] not protect people from other types of privacy invasion’. (8) Submissions that focussed on deficiencies in the Equal Opportunity Act pointed to exceptions to the Act and to its failure to prohibit discrimination against people because they are homeless or poor. (9) The Committee also notes the recent report of the Victorian Scrutiny of Acts and Regulations Committee (SARC) entitled ‘Discrimination in the Law’, (10) which highlighted provisions in Victorian laws that discriminate or may lead to discrimination. Some submissions made the additional point that, because human rights protection in Victoria is not comprehensive, deficiencies in the protection of rights are identified and addressed in a ‘reactive and arbitrary’ manner, (11) and obtaining a remedy is unnecessarily complex and difficult. The Committee considers that human rights protection in Victoria is far from comprehensive and that those rights that are protected are scattered and often hard to find. We agree with the large number of people making submissions who pointed out that a Charter would benefit all Victorians by writing down in one place the basic rights we all hold and expect government to observe. Change is also called for at a practical level. The current patchwork system is difficult to navigate and is administered by a variety of different government agencies and statutory bodies. The infringement of one human right often involves the infringement of others. A person seeking redress is often forced to deal with multiple bodies with varying levels of interest in their case and with variable outcomes. Moreover, some of the organisations involved (agencies and statutory bodies) lack the power to enforce the human rights they are there to protect. Submission 1100: Julian Burnside QC and Georgia King-Siem Additional protection is needed for disadvantaged and marginalised people The Committee heard powerful stories about the impact that a lack of respect for human rights has in the lives of many Victorians, particularly those who are disadvantaged. These problems often related to civil and political rights, indicating that disadvantaged people have much to gain from a Charter that protects these rights. For example, people with physical disabilities reported difficulties with access and participation, including barriers to exercising their right to vote. (12) At a forum we attended on this issue, several peak disability bodies including ACROD (The National Industry Association for Disability Services), the Disability Advisory Council of Victoria, The Australian Federation of Disability Organisations, the Victorian Women with Disabilities Network and Villamanta Legal Service said that the impediments to voting for people with disabilities include physical access to polling booths, difficulties becoming registered to vote and staying registered, the inaccessibility of the voting ballot and privacy issues. (13) There’s one right for people with a disability and one right for ‘normal’ people. Statement by a person with a disability at a forum conducted by the Victorian Council of Social Service and the Federation of Community Legal Centres (14) People with intellectual disabilities reported that they are not always treated fairly and with dignity and respect when they have contact with the criminal justice system. (15) A person with an intellectual disability taking part in a consultation told the story of a person with cerebral palsy being detained by the police while walking along the street because the police believed that he was intoxicated. One participant stated: ‘We get sick and tired of our rights not being met. We’ve been fighting for our rights for decades.’ (16) Older people and people with disabilities in the residential care system were identified as being cut off from the civil and political rights that most of us take for granted, such as freedom of movement. (17) Young people also talked a lot about their desire to be heard and to participate in decisions affecting them. (18) Women in prison Women from the Dame Phyllis Frost Centre reported breaches of their basic rights, which they considered to be disproportionate to any reasonable response of our justice system towards a person found guilty of committing a crime. Women complained of having little confidentiality in the provision of medical services and about ‘very personal comments’ being made ‘in front of a group of male officers’, or of being escorted to gynecological appointments by male officers. One woman visited an Orthopedic Surgeon at hospital. She reported being handcuffed to a waist belt and wearing ankle shackles. The male prison officer remained in the room while she removed the top half of her clothing for examination. To examine her lower back, the surgeon himself had to remove her shoes, socks and trousers and dress her again in front of the officer when he was finished. The use of strip searches for women when they first enter the prison, when receiving visitors or at random when looking for contraband, was described as dehumanising, humiliating and degrading. One woman said: ‘Our dignity as women is taken completely’. Submission 1913: Consultation with women at Dame Phyllis Frost Centre conducted by Victorian Council of Social Service and Federation of Community Legal Centres. Systemic discrimination was reported in submissions and consultation meetings with members of culturally and linguistically diverse communities. For example, Muslim communities reported racial discrimination and vilification. (19) Participants in an Eritrean community forum expressed fears that the anti-terror laws would unduly impact on the community. (20) People were frustrated that current anti-discrimination law deals with individual complaints and has not effectively tackled ingrained and institutional racism. Indigenous Australians reported deep-seated racism, discrimination in the provision of essential services, as well as a lack of respect for land rights and cultural identity. Racism was reported in each of the eight Indigenous consultations held throughout the State. Australia’s human rights instruments are currently inadequate in their protection for Indigenous peoples against systemic racism … A Human Rights Bill would greatly strengthen the position of Victoria’s Indigenous peoples if it includes measures which address issues of racial discrimination and racial respect … By recognising and establishing measures to protect our rights, the proposed human rights law can go a long way in establishing a safe meeting place between our peoples. Lets get ‘rights’ right and right the wrongs. Then we can begin to establish a just relationship between our peoples and secure a future for all our children. Indigenous Human Rights Forum, Aboriginal Advancement League, speech by Muriel Bamblett, Victorian Aboriginal Child Care Agency (Consultation 35) Members of gay, lesbian, bisexual, transgender and intersex communities also reported discrimination and vilification. We received a significant number of submissions from members of these communities, all in favour of comprehensive rights protection through a Charter. Having grown up in the country I experienced first-hand the horrible consequences of homophobia. I don’t think a day went by without some vile homophobic taunt being thrown at me. I was the subject of physical abuse and a queer friend of mine killed himself to escape the taunts. He was 15. I have been called sick, evil, selfish and perverted, people have spat at me and told me that I should get AIDS and die. I never felt safe as a queer youth and I don’t feel safe all the time as a queer adult. Submission 373: D Marshall Homeless people stated that their human rights were being violated in a number of ways. In focus groups conducted by the Public Interest Law Clearing House Homeless Persons’ Legal Clinic, 80 per cent of participants thought that the current protection of human rights in Victoria is inadequate. In addition, 94 per cent thought that the law needed to be changed to better protect human rights. (21) Homelessness and human rights The Public Interest Law Clearing House Homeless Persons’ Legal Clinic conducted focus groups with 106 homeless people in Melbourne. Their findings included:
Public Interest Law Clearing House Homeless Person’s Legal Clinic (Submission 186) A number of people also made the point that, without an instrument to safeguard human rights, the rights of minorities might be neglected in an electoral process that focuses on the majority. (22) As Bianca Jayawardena argued: There are certain individuals who are in need of greater protection in certain situations. Minorities, in particular will benefit from such legislation. As a democracy, their rights often go unheard and unprotected, but as a liberal society the government should not ignore their need for protection. (Submission 363) The Committee accepts the evidence from many marginalised people that their rights are not always respected. It also supports the view put by many Victorians, from all walks of life, that a Charter could provide valuable additional protection for the most disadvantaged in the community. Human Rights are important for everyone, especially those who are disadvantaged The essential feature of human rights is that all humans should have an equal right to a ‘fair go’. At present, not everyone does get a ‘fair go’, and reform is necessary to better protect their rights. Stronger, more comprehensive and easily accessible protection of human rights would better protect the human rights of people who are disadvantaged as well as everyone else. Submission 795: Kess Dovey A Charter would deliver practical benefits by setting minimum standards for government Many members of the community told the Committee that the Charter would be a powerful tool in assessing whether human rights protection in Victoria reaches minimum standards. (23) Some submissions made the point that without such a law there is no guarantee that the rights that we currently enjoy will not be taken away in the future, (24) such as hard-won equality rights for women and people with disabilities. Many people stressed that a new law would enhance government decision-making and would build public confidence in government. For example, Chris White said that a Charter ‘would ensure that all legislation passed by Victorian Parliament must accord with basic standards of human rights, including the right to freedom from discrimination’. (25) A participant at a Jewish community consultation said that a new human rights law would be like a virus checker, so that when the government infringes rights the window pops up and then the society and the government have to consider whether the infringement can be justified. (26) The Victorian Bar made these comments: Experience in comparable jurisdictions shows that a Charter of Human Rights which adopts an integrated approach to the processes of policy-making, legislation and court enforcement can significantly enhance the quality of decision-making within the executive government and by the legislature. (Submission 139) The Committee agrees that a human rights Charter could be extremely valuable in promoting better government. It would provide a democratic insurance policy for every Victorian by requiring that government laws, policies, decisions and actions take into account fundamental human rights. It would also ensure that, where the government wants to restrict human rights, there is proper debate about whether any proposed measures strike the right balance between the rights of Victorians and the objective that the government is seeking to achieve. The Committee was mindful of the following comments by the Equal Opportunity Commission Victoria, which describe some of the pitfalls of policy development in the current absence of a human rights framework: In the absence of a clearly defined human rights benchmark, identifying, analysing and making decisions on the human rights implications of public policy development and implementation occurs on an ad hoc basis in which:
This not only detracts from the efficiency of the public policy process itself, but also gives rise to a risk of developing policies that have unforeseen human rights implications which then need to be rectified after implementation when they have become a problem rather than addressed in the planning and development phase. (Submission 816) Better government The experience of modern human rights instruments in other jurisdictions is that human rights legislation has improved the quality of government decision-making. As Dr Helen Watchirs, the Australian Capital Territory (ACT) Human Rights and Disability Commissioner, stated in relation to the ACT Human Rights Act 2004: ‘The biggest impact of the Act has been in influencing the formulation of government policy and new legislation’. (27) For example, in the first year of operation of the ACT Human Rights Act, a number of government departments have begun reviewing their laws, policies and practices for human rights compliance. The ACT Human Rights Commissioner has also completed an audit of the Quamby Youth Detention Centre, which highlighted human rights concerns around the segregation and discipline of detainees and the use of strip searching. (28) The audit has resulted in changes to practices in that facility. Human rights considerations are also central to the design of a new correctional facility in the ACT. In the United Kingdom, the passage of the Human Rights Act 1998 has been an impetus for changes to police policy and practices. These changes include the introduction of a number of strategies to attract members of minority communities to the police force. (29) The oath taken by new members of the force has also been amended; they must now promise to serve the Crown ‘with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people’. (30) Responding to Terrorism One example of where a human rights Charter might contribute to better decision-making by government is in the area of terrorism. The enactment of expansive new counter-terrorism laws has generated community and media debate about the balance between counter-terrorism measures and fundamental freedoms. In submissions, a number of people expressed concern that our current rights were being eroded as a consequence of the ‘war on terror.’ (31) As the Australian Arabic Council noted: ‘The threat of being detained without trial is a throwback to the legal systems many communities left and moved to Australia to avoid.’ (Submission 1108) The Committee considers that a new law on human rights could improve the debate about new terrorism laws in the following ways:
[L]et us look back on this time and be able to say at least that Victorians took a deep breath, surveyed the situation and declared that human rights are important, that human rights are necessary for any democratic society. For it is with upmost certainty, that when our future generations look back upon this time in our Nations history, Victoria must be the shining example, Victoria will be one of the few voices that has requested that in our fight upon terrorism we do not destroy our society as well. Submission 377: Alexander Brook A Charter would modernise our democracy and give effect to our international human rights obligations A number of submissions mentioned that a new law would give domestic effect to Australia’s international obligations and could serve to connect Victoria with developments in international human rights law that now affect so many other nations. (32) Without it, many fear that Victoria, and Australia more generally, may become increasingly isolated from human rights discussions in the international community. As The Charter Group noted: Our system of democracy, and our country as a whole, may begin to lose credibility, both domestically and internationally, if we continue to bypass the consideration of human rights which is becoming an increasingly significant factor in the democratic system of other nations. (Submission 842) Dr Elissa Sutherland argued that the introduction of a human rights law might also boost Melbourne’s international standing more generally: [T]he Charter would offer Melbourne an opportunity to boost its international and national profile. Melbourne through an adoption of our own Charter of rights will come to be seen as a place of progressive ideals and will attract a wide variety of people to live, work, and do business with those in this city. (Submission 10) A Charter would educate people about their rights and responsibilities The Committee received many submissions about how a Charter could encourage a human rights culture in Victoria and fulfil an important educative role, both in the community and across government. As Dr Aron Paul Igai said: Such a Charter will provide a focus of pride for Victorians and a useful tool in educating young people about human rights and fostering a human rights culture in Australia based around equality and human dignity … It provides a conceptual framework within which cultural differences can be negotiated without recourse to notions of cultural superiority or inferiority. It recognises the reality of a pluralist society in which groups and individuals must respect each other. (Submission 344) Overseas experience indicates the transformative potential of a Charter when it is backed up by education and community participation. For example in Canada, the Centre for Research and Information released a survey that showed 88 per cent community support for that country’s Charter (saying that the Charter is a ‘good thing for Canada’). The Centre said its polling revealed that ‘the charter has become a living symbol of national identity because it defines the very ideal of Canada: a pluralist, inclusive and tolerant country.’ (33) This shows how a Charter has the potential to be a powerful symbolic and educative tool for future generations, as well as for people such as new migrants to Victoria. When I teach my TAFE students about the UNDHR [Universal Declaration of Human Rights] it blows their minds that such a powerful document exists – and that Australia is a signatory to it. Inevitably though the conversation turns to how difficult it is to enforce an international document, at a very grassroots level. However, a Victorian human rights document brings the power and potential of human rights directly to the local community level, where it is most needed. It turns rhetoric into reality in a way that the UNDHR does not. Submission 299: Amelia Bassett 1.2.4 Arguments against a Charter13 per cent of formal submissions to the Committee said that change is not needed to better protect and promote human rights in Victoria. (A further 3 per cent expressed no clear opinion on this question.) People opposed to a Charter raised the following arguments:
The following paragraphs discuss these arguments. Our human rights are adequately protected – ‘If it ain’t broke don’t fix it’ Of those who argued against change, one of the most common reasons given was that human rights are already well protected through our democratic system of government in Victoria and that no change is needed. This is the other side of the argument raised by those who support change on the basis that the current protection of human rights is not adequate. As Andrew Munden argued: Firstly, I ask why is there a desire to have a Charter of Human Rights? I believe that the customs, constitution and laws of the government already cover all of the major human rights issues … I believe that the Australian system of democracy and government already exhibits very strong capabilities to protect the human rights of all citizens. In other words, if it isn’t broken, why bother to try and fix it? (Submission 295) The Committee agrees that we live in a robust democracy with a relatively sound record on human rights. However, as pointed out earlier, the Committee has received many submissions attesting to shortcomings in the current protection of human rights and revealing that human rights are not enjoyed by all Victorians. The Committee acknowledges that these breaches are not always in the public consciousness because they are often experienced by members of disadvantaged groups who are unable to stand up for their rights. As one participant in a consultation conducted by the Victorian Council of Social Service stated: ‘People like us aren’t going to complain about it.’ (34) It is precisely for this reason that the most vulnerable and most disadvantaged Victorians need appropriate protection. A Charter would make no practical difference Some people making submissions said that a Charter would make little difference. As Bill Muehlenberg of the Australian Family Association argued: A Bill of Rights has not prevented human rights abuses in nations that have adopted them. Some of the most oppressive societies on earth, including the former Soviet Union, have had elaborate and exquisite BoRs … a BoR is no panacea, and can certainly offer no guarantees of a genuine promotion of rights. (Submission 506) Others such as the Australian Lawyers’ Alliance disagreed and said a Charter would provide important checks and balances to government action. Historically, those who oppose have argued that a Bill of Rights would achieve no useful purpose in a free society… [This] ignores the fact that a primary purpose of a Bill of Rights is to provide a safety net whereby those who wield power within a democratic society are subjected to a code of conduct in accordance with the rule of law which operates to prevent them exercising power in such a way as would infringe the basic rights of that society’s citizens. Thus, a Bill of Rights is a powerful tool not only in keeping a society tolerant and democratic, but as an essential adjunct to the institutions of Parliamentary democracy and the common law. (Submission 1017). The Committee recognises that for the Charter to make a difference it needs to add something to our existing system. It must be focussed on the basic standards that government can and should meet and provide a means by which ordinary Victorians can hold the government accountable. We are persuaded by the experience in other countries, and the weight of submissions arguing that a Charter can contribute to better government. For this potential to be realised, the Charter needs to set out how human rights standards are built into government processes for developing policy and legislation. More detail about this is provided in Chapter 4. A Charter would give too much power to judges Some people making submissions to the Committee considered that enacting a Charter would take away power from the Parliament and give unelected judges too much power. (35) As Michael McCrohan argued: I believe our rights are best protected through existing common law and the democratic process of Parliament. I am not in favour of turning our courts into undemocratic interpreters of human rights taking the issues out of the debate and control of the Australian people through the ballot box and duly elected representatives. (Submission 419) Douglas and Dulcie Anderson also said: Our main concern is that a bill of rights would take from the Parliament the decisions concerning major policies and legislative issues and give them to the unelected judges in the courts. We do not agree that unaccountable judges should have this power which is vested in the members of parliament who are elected by the constituents. (Submission 374.) Rather than handing over power to judges, as does the United States Bill of Rights, modern human rights laws like that now operating in the United Kingdom do not give judges the power to strike down laws made by Parliament. Instead, judges can be directed to open up debate about how law and policy is made, casting a powerful lens over the day-to-day work of Government. As we set out in later Chapters, the Committee is recommending a model that gives the final say to the Parliament and not the courts. This is very different to places like the United States. Human rights litigation in the United Kingdom Statistical information from the United Kingdom suggests that the introduction of human rights legislation does not need to result in a flurry of court cases. For example, the United Kingdom Department for Constitutional Affairs (DCA) reported that in the first nine months of the Human Rights Act 1998 human rights issues were raised in less than 0.5 percent of criminal matters heard in the Crown Court. Even in the High Court, where human rights issues were raised more often, the DCA found that a ‘vast majority’ of cases that made a human rights point could have been brought anyway on other grounds. As such, the Human Rights Act had not resulted in a significant increase in litigation. (36) Overall, from 2 October 2000 to 13 December 2001, the DCA noted that human rights issues were raised in 297 cases in the United Kingdom. Of these, the claims based on human rights arguments were upheld in 56 cases. No remedy was granted in 233 cases and damages were awarded in just one case. (37) In Scotland, which has a similar population size to Victoria, a recent article surveying the impact of the United Kingdom Human Rights Act in the Scottish courts between May 1999 and August 2003 found that human rights arguments were raised in ‘a little over a quarter of 1 per cent of the total criminal courts caseload over the period of the study’. (38) Overall, the authors concluded that ’it seems clear that human rights legislation has had little effect on the volume of business in the courts’. Human rights are not a matter for Parliament A number of submissions said that human rights are given by God and should not be re-invented and limited by man. The Australian Christian Lobby expressed this view: The ACL is of the view that inalienable and immutable human rights are ordained by God; they are not given by the decree of collective humanity or a parliament, but are to be found in natural law and the scriptures, heritage and tradition of the Judaeo-Christian faith and the Bible … Human Rights as proposed by parliamentary decree will not be inalienable and immutable, but may be given to some individuals and groups and taken away from other individuals and groups by the Parliament. When the community agrees to Government establishing a Charter of Human Rights it agrees that it is the Government which gives rights, not God, and that Governments can therefore take them away. This is the first, greatest and gravest overriding error … A ‘Charter of Human Rights’ as proposed may in fact only be a reflection of the prevailing culture, and not a true indication of real human rights (as bestowed by God). (Submission 1153) The Committee acknowledges that people may have different views about the ultimate source of our human rights. Nevertheless, the law-making capacity of the Parliament is an important part of our democracy and Parliaments around the world have made laws about human rights. A Charter might actually restrict rights Another argument put in submissions was that a new law may actually restrict rights. Some said that by defining rights we limit them (39) and that it is preferable to start from the proposition that people have all human rights except those expressly limited or withdrawn by the government through law. (40) The Committee wants to emphasise that the Charter is not intended to restrict or limit any rights already provided for in the law. We have proposed a section for inclusion in the draft Bill attached to this report that prevents the limitation of any existing rights. A Charter would create a selfish society Others, such as the Australian Family Association, were concerned that a new law would create a selfish ‘rights’ culture: The enactment of a BoR will further add to the ‘rights culture’ that is so characteristic of modern Western societies, along with a further erosion of responsibility. Everyone is demanding rights these days, but few are advocating duties and responsibilities, without which rights talk becomes empty blather. (Submission 506) The Committee does not accept this argument. There is no evidence from similar jurisdictions that requiring governments to observe human rights automatically makes people selfish. The Charter we are recommending specifically mentions the importance of responsibilities and is aimed at promoting respect for others. A law is not the best way to protect and promote rights Some people were concerned that the Charter might have the opposite effect to that intended: I believe that Human Rights are central to a society. However, the law is not accessible to a great number of people. By putting Human Rights into the legal system, it can have the reverse effect to what is intended … Obviously, simply creating a Charter of Human Rights will not protect human rights. It is deeper than this. My fear is that human rights may lose its force by becoming a legal document. I believe in human rights but want it to be more fluid and something which will be the beginning of a process towards justice, rather than within the justice system itself and thus up for interpretation and legalistic debate. Submission 126: Name withheld by request Others expressed the need for reforms not involving a Charter of Human Rights, such as changes to policy and broader government and community initiatives to promote rights.(41) For example, some submissions expressed a preference for amending existing anti-discrimination laws, rather then creating a new rights regime. (42) The Committee recognises that a Charter is only one piece of the human rights puzzle and that political commitment to observing rights in law-making, policy formulation and practice is vital for the legislation to have real effect. These issues are discussed in more depth in later Chapters of this report. A Federal Charter rather than a State Charter is needed Some submissions considered that change is needed at the Federal and not at the State level. As Tim Armytage stated: To attempt to frame a Charter of Human Rights for an individual State within the Commonwealth will lead to confusion and is a waste of time, money and effort, when the Federal Government could facilitate a uniform Charter for the whole nation. (Submission 451) Other people thought a State Charter would be an important step in rights protection and might eventually lead to a Commonwealth Bill of Rights. In Canada, for example, legislation at the provincial level was a initial step towards the Canadian Charter of Rights and Freedoms 1982. Victoria Legal Aid explained: As there is no current move towards a federal charter, we support the introduction of a state charter as a first step. There are some good reasons to enact a state charter first. It will provide protection in areas that have practical impact on many people (e.g. education, hospitals and police), and give the community an opportunity to test the impact and operation of a charter. (Submission 470) The Committee was not asked to consider the question of a Commonwealth Bill of Rights. However, we see no inconsistency. State and Federal laws on many matters, such as on anti-discrimination, already co-exist (as they do in other federal systems of government). A State human rights law would also be needed even if there were a federal law on the topic because, under the Australian Constitution, the federal law could not apply to many aspects of State government. 1.2.5 Committee’s view on arguments for and against a CharterThe Committee considers that the challenges in formulating a new law on human rights identified in the above arguments do not detract from the overarching benefits demonstrated by the arguments in support of change. The Committee agrees with the majority of submissions that the law does need to be changed to better protect human rights. The next section talks in more detail about the form of the Charter we are recommending. RECOMMENDATION 1Victoria should enact a new law to better protect and promote human rights. 1.3 If change is needed, how should the law be changed?Of the submissions made to the Committee stating that change is necessary to better protect human rights, 96 per cent expressed a preference for some form of Charter of Human Rights.
In considering how the law should be changed, the Committee is mindful that a substantial majority of the submissions we received stated that a new law on human rights is needed in Victoria. The Committee also notes the preference of the Victorian Government in its Statement of Intent that a new human rights law be contained in an ordinary Act of Parliament to ensure that parliamentary sovereignty is preserved. Options considered by the Committee included:
1.3.1 A non-binding statementAt one end of the spectrum, the Committee considered the idea of a non-binding statement of human rights. Such an ‘aspirational statement’ could be ‘intended to remind Parliament of its responsibilities to protect human rights, without challenging its authority or fostering litigation’.(43) A similar form of non-binding statement exists in Queensland.(44) A non-binding statement would offer little additional human rights protection. As Queensland’s experience has demonstrated, it would not provide a mechanism for enforcing human rights. This option has previously been considered by the Victorian Parliament. In 1987 the Legal and Constitutional Committee recommended the insertion of a non-binding Declaration of Rights and Freedoms into the Victorian Constitution.(45) The Declaration was introduced into Parliament but never became law. The Committee considers that a non-binding statement is not appropriate for Victoria. The Victorian community has expressed its preference for a formal, legal document to better protect human rights and to promote better government. 1.3.2 Constitutional or other entrenchmentAt the other end of the spectrum, the Committee considered whether Victoria should enact a Charter as a new part of the Victorian Constitution. A number of submissions considered that placing human rights obligations in the Constitution would have ‘important symbolic value in that it demonstrates the significance accorded to the rights contained in such an instrument’.(46) Others stated that constitutional entrenchment was essential to ensure that human rights are securely protected and cannot be easily removed. As Gustav Lanyi commented: An amendment to the Constitution Act 1975 to insert a Charter of Rights (COR) is most desirable. The reason for constitutional entrenchment is to ensure that rights are protected over time, and not subject to the vagaries of Parliamentary politics. Only with such entrenchment could Victorians be assured that neither legislation nor executive action would infringe upon our basic human rights. (Submission 89) Other people argued against entrenchment in the Constitution. Some stated that it would be too difficult to change the law,(47) while others were concerned about giving unelected judges the final say in the interpretation of the law. There were also those, such as the Women’s Rights Action Network Australia, who were interested in entrenching the law in an ordinary Act of Parliament: WRANA recommends that a Charter of Rights be legislatively entrenched such that to amend it would require the agreement of two thirds of the Parliament in a Joint Sitting, as is required for amendments to the Constitution Act 1975 (Vic). This should ensure that the Charter may continue to evolve consistent with ongoing community consultations. (Submission 841) Many people who expressed a preference for an entrenched law told the Committee that a legislative model should be the first step in a process that eventually leads to a Charter in the Victorian Constitution. This was the experience in Canada, which enacted a legislative Charter in 1960 and a constitutional Charter in 1982. The Committee has no view on whether a Victorian Charter might eventually be included in the Constitution. This would be a matter for the people of Victoria and the Parliament to decide if such a suggestion arises in the future. The Victorian proposal for a Charter of Human Rights is supported as an initiating phase. There is an immediate need for a statement by governments of a benchmark of expected behaviour for governments, corporations, organisations and all citizens to comply with if we are to call ourselves a civil society. Submission 354: Ruth Russell and Margaret Ross The Committee notes the stated preference of the Victorian Government for a Charter that preserves the sovereignty of Parliament. In other nations where a human rights law forms part of the Constitution, such as in the United States and Canada, courts can strike down Parliament’s laws. Many people have told the Committee that they are opposed to such an idea. The Committee agrees. We prefer a model that preserves Parliamentary sovereignty and allows the law to be amended in the ordinary way. 1.3.3 An Act of ParliamentThe Committee has considered whether enacting a new human rights law as an ordinary Act of Parliament would be appropriate. This form of legal protection received support in submissions. As Darren Lim stated: The legislature should have the ultimate responsibility of guaranteeing basic human rights for Victorians, which is why an ordinary act of parliament (as in NZ or the UK) is the best option. This prevents the courts becoming politicised as in the US and respects the supremacy of Parliament. (Submission 312) Legislation is preferred by some people because it involves the three arms of government in a conversation about rights, while retaining for the Parliament the ultimate say about which rights the law should protect, how they should be protected and the appropriate limits to human rights. A number of advantages of the legislative model have been pointed out in submissions. These were well summarised in the submission from Victoria Legal Aid, which listed the following benefits of a legislative model. Such a law:
A legislative Charter would have the same legal status as other Acts and would be a flexible document that could be amended over time by the Parliament. The legislative model allows the Charter to evolve and adapt to changing needs, as explained by Justice Kevin Bell of the Supreme Court of Victoria: The types of rights protected could be extended, or contracted, through the Parliamentary process, as Victoria’s social and political circumstances changed. This would allow for a great deal of flexibility and ensure that the Parliament, and therefore the Victorian community, would be able to shape the future of rights protection in this State. (Submission 1167) One potential disadvantage of this model is that future Parliaments would also be free to repeal the law to remove human rights protection. However, the experience in other jurisdictions is that once human rights legislation is enacted, governments do not later wind it back because to do so carries significant political risks. Some people have argued that an ordinary Act of Parliament would therefore provide adequate protection of human rights in Victoria.(48) The Committee is of the view that a legislative model would serve Victoria well. It would allay the fears of a number of people about giving too much power to unelected judges by preserving the sovereignty of Parliament, while encouraging better government. It would be flexible enough to allow for modifications and additions to the protected rights in line with community views. In adopting an approach similar to that in the ACT, it would also promote a consistent approach to rights protection in Australia. This was considered desirable in a number of submissions, including that of The Justice Project: It would be undesirable for Victoria to follow a completely unrelated and separate jurisprudential path to that taken by the ACT, because if and when other states and territories come to consider a Human Rights Charter, it would be helpful if the existing models in Australia were similar in form and content. (Submission 954) The Committee has looked closely at the different forms that a change to the law could take. Having considered the submissions, the Statement of Intent and lessons learnt from other jurisdictions, the Committee recommends that the Charter be an ordinary Act of Parliament. As we discuss in Chapter 7, the Charter should be the subject of regular reviews to see if it needs to be changed over time. RECOMMENDATION 2The new law should be an ordinary Act of Parliament. 1.4 What should the new law be called?The Committee considered a number of options used in other jurisdictions, including ‘Human Rights Act’ (ACT and United Kingdom), ‘Bill of Rights’ or ‘Bill of Rights Act’ (New Zealand, United States, South Africa), ‘Charter of Rights and Freedoms’ (Canada). We also considered ‘Charter of Human Rights and Responsibilities’ (2004 Justice Statement) and ‘Charter of Human Rights’ (Committee’s Discussion Paper). The Committee decided against ‘Bill of Rights’ because it is concerned that this name might create the impression that the law is similar to the United States’ Bill of Rights. The Committee considers that ‘Charter’ is appealing as it attests to the symbolic as well as the legal significance of the document. The Committee also decided to include a reference to ‘responsibilities’ in recognition of the views expressed by many people that rights and responsibilities go hand in hand. [W]henever there is a reference to rights there is automatically a concurrent reference to responsibilities. Individual and collective rights simply cannot exist in the absence of their flipside e.g.:
Submission 816: Equal Opportunity Commission Victoria RECOMMENDATION 3The new law should be called the Charter of Human Rights and Responsibilities. 1.5 Should the new law have a preamble?The Committee considers that a preamble is an essential element in the new law on human rights. The preamble serves as an overarching statement of values underpinning the Charter and could be a useful educative and interpretive tool. A number of ideas should be reflected in the preamble:
The Committee believes that the preamble should reflect notions of accessibility, diversity and participation in society by people of all ages. The preamble should also make clear that rights need to be balanced against each other and against community interests as part of a democracy. The Committee thinks that it is important that the preamble recognise Indigenous peoples. Consistent with the approach taken in the ACT, we recommend that the preamble recognise the special significance that human rights have for Indigenous communities as the first owners of the land. Although human rights belong to all individuals, they have special significance for Indigenous people – the first owners of this land, members of its most enduring cultures, and individuals for whom the issue of rights protection has great and continuing importance. Preamble to the ACT Human Rights Act 2004 RECOMMENDATION 4The Charter of Human Rights and Responsibilities should contain a preamble that emphasises rights, responsibilities and respect and that recognises the special significance of human rights to Indigenous peoples as the traditional owners of the land. |