Rights, Responsibilities and RespectThe Report of the Human Rights Consultation CommitteeChapter 2
Chapter 2 - Which rights should the Charter protect?2.1 SummaryThe Charter of Human Rights and Responsibilities should protect civil and political rights. As its starting point, the Committee has used those rights contained in the International Covenant on Civil and Political Rights 1966. Some of these rights should be included in the Charter, without change. Other rights should be adapted to suit Victoria’s circumstances. Some rights should not be included at all. The Charter should state that, in protecting these rights, it does not limit or exclude any of the other rights a person may hold. The idea that people, as the bearers of human rights, also owe responsibilities should be reflected in the preamble to the Charter. The Charter should also make it clear that rights need to be balanced against the other important interests that arise in a free and democratic society. The Committee believes that the Charter should include civil and political rights taken from the International Covenant on Civil and Political Rights 1966, but not the economic, social and cultural rights contained in the International Covenant on Economic, Social and Cultural Rights 1966. However, the level of community support for these latter rights means that they should be considered for inclusion when the Charter is reviewed after four years. [A] Charter… will enumerate areas in which the government can not interfere with the individual. A Charter will empower the individual by enabling him or her to point to a document which comprehensively states his or her human rights. That document will stand as sure testament to the fact that all persons are entitled to human rights and therefore count. Civil and political rights of the individual are declared and stated for the world to see. Submission 954: The Justice Project 2.2 Which rights?2.2.1 Civil and political rights95 per cent of submissions to the Committee said that a Charter should protect civil and political rights, such as the right to vote, to expression and to peaceful assembly. For example, Mark Hood made these comments: I support a Bill which contains principles such as those listed in the International Covenant on Civil and Political Rights. I advocate the right to a fair trial, the right to not be held in slavery (or detention for asylum seekers), and the right not to be subject to torture or cruelty. Furthermore, I particularly advocate the right to life, and the right to freedom of thought, and freedom of assembly and association. (Submission 301) Some submissions focussed on particular civil and political rights, such as freedom of religion: As a church body we are especially concerned to see that institutions of government uphold the right to religious freedom. We believe there is a need for it to be clear that people should be able to express and teach their peaceful religious beliefs both in private and in public. We believe that the expression of religious beliefs should be permitted in government controlled facilities and institutions, provided that they do not unduly impinge on the rights of others. However, we recognize that the right to religious freedom is not absolute and should not be used as a shield to justify violations of other basic human rights. Particularly, religious freedom should not allow for cruel and inhuman practices such as female genital mutilation, nor should it allow for people to incite hatred against others. Submission 164: Justice & International Mission Unit, Synod of Victoria and Tasmania, Uniting Church In Australia Muslims in Victoria have contacted the ICV [Islamic Council of Victoria] expressing their deep concern about suggestions from some prominent figures that the hijab be banned in certain schools. In undertaking this consultation process for the purposes of producing this submission, the ICV notes that the overwhelming majority of Muslim women that were consulted viewed any ban on the wearing of the hijab as a fundamental derogation of their right of freedom of religion… There has been overwhelming feedback from the Muslim community in Victoria that the provisions of Article 18 of the ICCPR be enshrined in a charter on the basis that it will serve to protect the right to wear religious clothing such as the hijab. The ICV places on record its support for the proposition that the right to wear religious clothing should apply to all without discrimination. This includes, for example, the right for people of Jewish faith to wear a yarmulke or people of Sikh faith to wear a turban. Submission 1194: Islamic Council of Victoria The Committee considers that civil and political rights are essential entitlements of all Victorians and should be included in the Charter. While civil and political rights such as the right to be free from torture, to liberty and security of the person and to freedom of movement and association are always important, they have come into sharper focus as governments and broader communities consider the protection of fundamental liberties in light of the threat of terrorism. The Committee considers that a Charter containing civil and political rights would be of assistance in dealing with the tensions and questions that arise in the area of community safety and civil liberties. 2.2.2 Economic, social and cultural rights41 per cent of submissions wanted the Charter to also include economic, social and cultural rights (ESC rights) such as the right to food, health, housing and education. The Committee noted with interest the wide range of people and organisations who argued strongly in favour of including such rights, including many individuals, legal firms, judges, professional bodies, advocacy organisations from a range of sectors and Indigenous communities from across the State. People told us that these rights are very important for ordinary Victorians who are concerned about healthcare, education and other basic services. One of the most common arguments expressed in submissions is that human rights are indivisible and that civil and political rights are best secured by ensuring protection for economic, social and cultural rights. I would also like to see the articulation of economic and social rights because they are often necessary to ensure the attainability of civil and political rights. For instance, while we might articulate the right to liberty and security of the person, it will be somewhat meaningless to a young homeless person who faces a lack of security every night on the streets. Submission 134: Marg D’Arcy Many said that economic, social and cultural rights are the most important rights for disadvantaged people in the community. For example, a number of people making submissions spoke of the need for ESC rights for people with a disability. One person said that these rights are more ‘practical and relevant to the lives of people with disabilities’, (1) while another made the point that ‘much of the marginalisation and disadvantage experienced by people with disabilities (and especially people with intellectual disabilities) arises from social and economic exclusion’. (2) Some people making submissions pointed to the particular significance of ESC rights for women. These people argued that ESC rights are more often exercised by women as carers in the family and that a Charter that omits these rights in favour of the more ‘masculine’ civil and political rights effectively discriminates against women. (3) Others, such as the State-wide Steering Committee to Reduce Family Violence noted the link between ESC rights and freedom from domestic violence: The Committee wishes to acknowledge however that a woman’s right to be free from violence is inherently linked to economic and social rights such as the right to education, the right to work and the right to the highest attainable standard of mental and physical health. Without access to these rights, women’s options in responding to family violence and protecting themselves are severely limited. (Submission 1011) A number of other arguments were advanced. The Public Advocate made the point that a Charter that protects only civil and political rights may hinder the use of the Charter for education: Omitting economic, social and cultural rights creates the possibility that in the minds of the general public, rights will be regarded as limited to those enshrined within the Charter, rather than the whole range covered by international covenants and declarations to which Australia is party. The education process that must accompany the introduction of a charter would be hindered by this omission. (Submission 456) ESC rights are contained in the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), to which Australia is a party. Unlike the International Covenant on Civil and Political Rights 1966 (ICCPR), which requires that nations take steps to give effect to the rights within the Covenant and to ensure that people have an effective remedy for rights violations, (4) the ICESCR provides that States must take steps ‘to the maximum of [their] available resources, with a view to achieving progressively the full realisation’ of the ICESCR rights. (5) This difference reflects the view that ICESCR rights may involve significant resources in order to be fully enjoyed. As such, nations are given greater latitude in their implementation of the rights contained in ICESCR. ESC rights do not form part of the human rights Charters in New Zealand, Canada or the United Kingdom (although the right to education was incorporated in the United Kingdom Charter from the European Convention on Human Rights and Fundamental Freedoms 1950). Neither are they contained in the Australian Capital Territory (ACT) Human Rights Act 2004, although the ACT Consultative Committee did recommend their inclusion. While a few nations such as South Africa do protect such rights, there is limited experience on what effect ESC rights may have within a legal system like Victoria’s. The inclusion of ESC rights would make Victoria exceptional amongst the models of human rights protection enacted in similar jurisdictions. The Committee recommends that ESC rights not now be included in the Charter. The Committee considers that a Charter containing civil and political rights is a significant step along the journey towards the better protection of human rights in Victoria. That journey is in its early days and it should be for future governments to determine, in light of Victoria’s experience with the Charter, whether the protected rights should be expanded to include ESC rights. In making this recommendation, the Committee is mindful of the strong concerns and arguments regarding ESC rights. The Committee’s view is that the Victorian Government should adopt a formal process of review of the Charter and that this review should include consideration of whether the range of rights protected by the Charter should be expanded to include some or all ESC rights. The idea of a review and matters that should be considered as part of the review are discussed in Chapter 7. 2.2.3 Other rights35 per cent of submissions supporting a Charter also supported the inclusion of other human rights such as those contained in other treaties to which Australia is a party, for example women’s rights as set out in the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) and children’s rights as set out in the Convention on the Rights of the Child 1989 (CRC).
For example, the Honourable Alastair Nicholson, Danny Sandor and John Tobin said in relation to children’s rights: The inclusion of such provisions is of practical and symbolic significance. It ensures that the development of legislative and social policy is informed by the special needs of children and in some States, notably South Africa, provides children with the right to enforce their rights within the Courts. Just as importantly, it counters the historical invisibility of children within the law and serves as a powerful reminder of their value and importance within a society. (Submission 1063) The Committee recommends that these rights not be included in the Charter at this stage. As noted above, the Committee considers that it is appropriate to take an incremental approach to rights protection and that it is preferable to start with a Charter that applies to all people generally, rather than incorporate rights from more detailed and specific human rights instruments such as CEDAW and CRC. The Committee recommends that the four year review process include consideration of whether the Charter should be expanded to include other rights such as women’s rights and children’s rights. 2.2.4 ResponsibilitiesApproximately 1 per cent of all submissions said that a Charter should specify a statement of enforceable responsibilities. As Danna Grills stated: Moreover, care should be made not to emphasise ‘rights’ to the exclusion of ‘responsibilities’. Both these are necessary and a focus on rights often leads to judicial challenges whenever I feel that my ‘rights’ have been breached. (Submission 329) Other submissions specifically rejected the idea that a Charter should specify a statement of responsibilities. For example, the Justice and International Mission Unit, Synod of Victoria and Tasmania, Uniting Church in Australia, expressed this view: The Unit does not support the inclusion of a specific statement of responsibilities in a Charter of Human Rights, as we believe that the statement of basic human rights carries with it an obligation and responsibility on all members of a society to ensure that all other members of that society have their basic human rights. (Submission 164) The Committee agrees that human rights include the idea of responsibilities. Indeed, rights and responsibilities can be seen as the two sides of the same coin because neither can exist without the other. Hence, it is not necessary to include in a Charter separate provisions dealing with responsibilities. However, to emphasise the importance of responsibilities to the protection and enjoyment of rights and to a just and inclusive society, we recommend in Chapter 1 that the concept of responsibilities be included in the Preamble to the Charter. 2.2.5 Charter not intended to limit rightsThe Committee believes that, at this initial step of better protecting the rights of Victorians, the Charter should only contain civil and political rights. However, these are only some of the rights that Victorians hold under international law and it is important that the Charter not override or limit these other rights, including ESC rights. The Charter should state that, in protecting civil and political rights, it does not limit or exclude any of the other rights a person may hold. This should be achieved by including in the Charter a provision similar to section 26 of the Canadian Charter of Rights and Freedoms 1982, which states: The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada. RECOMMENDATION 5The Charter of Human Rights and Responsibilities should protect civil and political rights. The Charter should state that, in protecting these rights, it does not limit or exclude any of the other rights that a person may hold. 2.3 Which source of civil and political rights?The Victorian Government has asked the Committee to determine which civil and political rights should be protected in a Charter for Victoria. In formulating a list of Charter rights, there are a number of human rights instruments that could be used as a starting point. These include the ICCPR, the ACT Human Rights Act 2004, the United Kingdom Human Rights Act 1998 and the New Zealand Bill of Rights Act 1990. Alternatively, the Committee could recommend that Victoria draft a completely new document not based on any of the existing models. A number of people mentioned the advantages of using the ICCPR as a starting point. Dr Julie Debeljak from Monash University, who attended our expert’s roundtable, suggested that it is sensible to model Victoria’s law on the ICCPR so that Victorian law is consistent with Australia’s international obligations. The Mallesons Stephen Jaques Human Rights Group made the additional point that the Victorian Government and courts will have the benefit of the substantial international jurisprudence that has built up around the ICCPR rights: The further the rights… align with the original ICCPR wording, the more assistance can be gained from the extensive jurisprudence that has developed in relation to the rights contained in the ICCPR. This will aid not only the judiciary where they are required to consider or apply provisions of a Charter, but also the legislature when it is considering the compatibility of legislation, and, just as importantly, the general community. (Submission 807) Some people making submissions noted that the ICCPR, drafted in the 1960s, contains some language that is outdated and is not appropriate for a Victorian law. They suggested that if the rights in the Charter are based on the ICCPR, this language needs to be updated. This includes changing language to make provisions gender neutral. Others thought that it would be beneficial to use the ACT Human Rights Act 2004, which adapts the ICCPR, as a starting point to promote a uniform approach to rights protection in Australia. Many people expressed the view that as various state and territory laws act to protect human rights, these laws should be consistent and use the same language to protect the same rights. The Committee takes the view that the ICCPR is the appropriate starting point for determining which rights should be included in a Victorian Charter. We are mindful that the Statement of Intent asks the Committee to ‘focus on the rights in the International Covenant on Civil and Political Rights’ and we note that the ICCPR was the starting point for the other human rights instruments mentioned above. By adopting this approach, the Victorian law would also be consistent with the ACT approach. The ACT experience is that the ICCPR rights resonate despite cultural or other differences. Being a human being entitles a person to the same basic protections whether they are in the ACT, Victoria, New Zealand or South Africa. The universality of the ICCPR rights has been experienced by those involved in the implementation of the Human Rights Act 2004 (ACT) in a way that would not have occurred had we attempted to compile some form of ‘ACT-specific’ list of human rights. We now draw heavily on international jurisprudence, literature and commentary in the development of public policy. This opening up of processes to new and different influences has had a profoundly positive effect on public policy. Submission 1060: The Honourable Jon Stanhope MLA, Chief Minister of the ACT The Committee agrees that some of the language in the ICCPR is no longer appropriate. This issue was noted by the ACT Consultative Committee, which recommended that the rights language be updated in certain cases and adopted a ‘plain language’ approach. The Committee prefers this approach to the Canadian Charter of Rights and Freedoms 1982 where the rights were, in some cases, substantially reworded. The Committee recommends that the language in the ICCPR should be updated in line with the ACT Human Rights Act 2004 or modified where required to fit the Victorian context. The modifications to the ICCPR required for a Victorian law are considered more fully in the next section. RECOMMENDATION 6The starting point for the Charter of Human Rights and Responsibilities should be the civil and political rights contained in the International Covenant on Civil and Political Rights 1966. Where necessary, the language should be modernised in line with the language used in the ACT Human Rights Act 2004 or modified as required for the Victorian context. 2.4 Specific rights issuesThe Committee believes that the ICCPR rights should be included in the Charter, subject to specific recommendations about the rights examined below. 2.4.1 Right to lifeArticle 6(1) of the ICCPR provides: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. The right to life has been described as the ‘supreme’ human right that is necessary for the enjoyment of all other rights. (6) It is one of few rights in the ICCPR from which States may not derogate, even in times of war or emergency. The right involves safeguarding and preserving life. However, it has been found not to include as a corollary a right to die with the help of another person. (7) In a few limited cases taking life might not contravene the provision, such as if the act was done in lawful self-defence. The ACT Human Rights Act 2004 contains a right to life provision that updates the language of the ICCPR provision and adds a second subsection. Section 9 reads:
The inclusion of the second subsection in the ACT provision prompted a large amount of discussion in the submissions we received. Some people welcomed the sub-section, saying it gave certainty to the law. Many other people expressed concern about the provision. Some said that it was making a statement about when life begins and is therefore inappropriate. Others said that the right to life from conception is the principal human right and that without it there is no sense speaking of other rights. (8) The following statement from Sandra Johnson expresses the sentiment of a number of people: The first human right is the right to life. I most strongly urge that this right be protected from conception to natural death. (Submission 514) The question of whether the right to life extends to the unborn child is a controversial one. The submissions do not reveal any clear common ground but rather that it remains a matter of often heated debate. The Committee notes these views and believes that, in the absence of consensus, the issue should not be resolved through the Charter. In any event, to include a right to life in the form of the ICCPR would not resolve the issue because it is not explicit on the issue of abortion. It would merely leave the matter to the courts. The view often taken by courts in other nations is that the right to life protects people from birth and does not prohibit abortion. (9) As such, sub-section (2) in the ACT provision sets out the interpretation of the law that is most often favoured internationally. The Committee’s view is that the Charter should include a provision similar to sub-section (2) in the ACT legislation. In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law. We also stress that this provision is not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement. Nevertheless, the Committee is mindful of the concerns expressed in the community and considers that for the Charter to be effective in promoting broader cultural change, it needs to be acceptable to Victorians generally. As such, the Committee recommends altering the ACT provision along the lines of:
The Committee prefers this wording because it emphasises that:
2.4.2 Right to equalityThe need to ensure that human rights are enjoyed without discrimination was one of the strongest messages communicated to the Committee. As discussed in Chapter 1, different communities reported particular concerns: for example, Indigenous communities reported racial discrimination and people with a disability spoke of discrimination in regard to participation and access to services. Age-based discrimination was reported by both the elderly and young people. Protection of women from discrimination based on family responsibilities was also highlighted. (10) Some people made the point that non-discrimination and equality are not necessarily achieved by treating everyone equally. In some cases, special measures and more favourable treatment are needed to overcome structural barriers to equality faced by marginalised and disadvantaged members of the community. The Arnold Bloch Leibler Public Interest Law Group made this suggestion: ABL recommends that that the Consultation Committee endorses the principle that equality before the law does not mean absolute equality, namely equal treatment without regard to the individual. Rather, it means relative equality … the principle of treating equally what is equal and unequally what is unequal. (Submission 1053) Given the strong message from the community, the Committee believes that the Charter should contain a broad prohibition of inappropriate discrimination. Article 26 of the ICCPR is one of the cornerstones of the ICCPR and of national human rights instruments. It states: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The provision prohibits direct discrimination: that is, a law or policy that expressly treats people differently on the basis of a particular characteristic. It also prohibits discrimination that is indirect: for example, an apparently general law or policy that, in its effect, impacts differently on different groups. Article 26 has been interpreted to prohibit ‘discrimination in law or in fact in any field regulated and protected by public authorities’. (11) This means that a government must not discriminate in regard to any human rights, not just those contained in the ICCPR. This includes protecting people from discrimination in areas that affect other rights such as economic, social and cultural rights. In coming to a view on the most appropriate non-discrimination provision for Victoria, the Committee is mindful of the need for consistency with the Victorian Equal Opportunity Act 1995. That Act currently prohibits discrimination on a broad range of grounds including age, breastfeeding, gender identity, impairment, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race, religious belief or activity, sex, sexual orientation or personal association with someone who has any of the above attributes. The Committee considers that rather than list all of these grounds in the Charter, it is preferable that the provision contain a shorter list of grounds based on those in the ICCPR. The list should not include discrimination on the ground of property as this is not one of the prohibited grounds of discrimination under the Equal Opportunity Act. (A separate property right is recommended by the Committee, as explained in the following section.) The Charter provision should expressly refer to the following grounds taken from the Equal Opportunity Act, which the Committee considers are important omissions from the ICCPR list: age, sexual orientation, gender identity and impairment. The Committee considers that a list ending with the open-ended phrase ‘or other status’ might be difficult for government and service providers to interpret in their daily work. The Committee prefers the wording ‘or other status provided for under the Equal Opportunity Act 1995’. This formulation gives certainty to the list of prohibited grounds of discrimination, is broad in its coverage and would ensure that the Charter remains consistent with the Equal Opportunity Act as the grounds in that Act are amended over time. The Committee also recommends that the equality provision contain a sub-section to recognise that special measures may be required to achieve equality for some groups in the community. The sub-section should state that such measures are not unlawful under the Charter. The Committee recommends a provision similar to section 19(2) of the New Zealand Bill of Rights Act 1990, which states: Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part II of the Human Rights Act 1993 do not constitute discrimination. The Committee further recommends that as part of the four year review of the Charter, consideration be given to whether additional grounds of discrimination should be added to the provision. 2.4.3 Property rightsSome people making submissions to the Committee mentioned that that the Charter should contain rights relating to property. For example, Luke William Martin considered that the Charter should state: No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Submission 303) The Committee was also interested in the submission of Dr Simon Evans from the University of Melbourne. He argued for a property right that ‘ensures that the institution of property is recognised, protects against arbitrary deprivation, and acknowledges the reality that Victoria is a market economy’. (Submission 471) The Committee notes that property rights are contained in a number of international instruments. For example, the ICCPR prohibits discrimination on the ground of property. (12) In Australia, the Federal Constitution contains a property right dealing with deprivation of property. It states that in making laws the Federal Parliament may only acquire property if the acquisition is made on ‘just terms’. (13) This guarantee does not apply to property taken under state law. The Committee agrees with Dr Evans that it is appropriate to include in the Charter a provision providing safeguards in relation to the deprivation of property by the State. People should not be deprived of their property except where this is expressly provided for in the law. The Committee does not, however, consider it appropriate to provide for an open-ended right to compensation for property deprivation. The Committee recommends that the following provision be included in the Charter: A person must not be deprived of his or her property other than in accordance with law. 2.4.4 Self-determinationSelf-determination, in the sense of a right to control your own destiny, is a human right with relevance to many groups in the Victorian community, including people with a disability and older people. It has particular significance for Indigenous communities. The Committee gave consideration to whether a right to self-determination should be included in the Charter, especially for the purpose of recognising Indigenous rights. Many submissions argued in favour of Indigenous-specific rights. For example, the Social Concerns Committee of the Deepdene Uniting Church said: While there may be difficulties in framing appropriate measures to uphold and protect the rights of Australia’s Indigenous people, we believe that their situation warrants special consideration. As Australia’s first people, their place is unique but given two hundred years of dispossession, colonisation, removal of children from families and current disadvantages, we would urge that recognition be given to the fact that they have special long standing rights as well as special needs. (Submission 322) Indigenous peak bodies emphasised self-determination as a crucial right for Indigenous Australians in their submissions and discussions with the Committee. They argued that respecting self determination and building capacity within Indigenous communities are critical principles that will lead to positive outcomes. For example, Reconciliation Victoria said: A Charter of Rights founded in justice should be based on (1) recognition of Indigenous rights (2) recognition of the rights to self-determination of Indigenous peoples, which is defined by the United Nations as the right to ‘…freely determine their political status and freely pursue their economic, social and cultural development.’ (Submission 1112) The Committee also received a petition from 278 groups and individuals, specifically addressing Indigenous issues. The petition included a call for self-determination to be included in the Charter. The term ‘self-determination’ was heard less often in consultations with individual Indigenous communities. People had different views about its meaning. Some thought that only a Treaty with Indigenous peoples would result in concrete benefits for their communities. Indigenous communities expressed a number of ideas under the heading of self-determination. For example, the Yorta Yorta Nation said that self-determination involves Indigenous communities taking control of their future and deciding how they will deal with issues facing them. (14) Submissions also referred to the effective participation of Indigenous communities in public life and in decision-making for the community. This may include determining governance arrangements within the existing State framework. (15) Some submissions referred to specific benefits of self-determination for Indigenous communities. For example, Muriel Bamblett stated that ‘a comparison of life expectancy statistics shows that Indigenous peoples who have treaties and various self-determining rights have far better health outcomes.’ (16) The Victorian Aboriginal Child Placement Principle was given as an example of existing good practice that is consistent with Indigenous self-determination. (17) The Committee notes that Aboriginal Affairs Victoria is currently undertaking a substantial consultation process with Indigenous communities across Victoria with regard to future representative arrangements, following the abolition of the Aboriginal and Torres Strait Islander Commission. The Committee is also mindful of the recently released report concerning the Victorian implementation of recommendations regarding Indigenous deaths in custody. The key recommendations include the need to develop a set of standards to increase effective Indigenous participation, a recommendation consistent with the notion of self-determination for Indigenous communities. (18) Self-Determination: What does it mean? The Equal Opportunity Commission Victoria suggested that self-determination incorporates an entitlement to:
Submission 816 Self-determination is a concept long debated in international law. Historically, it has meant a right to succession (or separation) for minorities under colonial control or the right of a State to be free from external domination. (19) More recently, it has come to be understood as a right of peoples within a State to participation in the political process. Self-determination has been recognised as ‘an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights’. (20) It was for this reason that it was placed as the first article in the ICCPR. An international treaty body has said that nations should ‘ensure that members of Indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent’. (21) To fulfil its obligations under the ICCPR, Australia has been called upon to ‘take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources’. (22) The United Nations Draft Declaration on the Rights of Indigenous Peoples refers to the right to self-determination. (23) The declaration contains a number of related provisions including the right of Indigenous peoples to participate in decision-making via their chosen representatives and to develop their own decision-making institutions. (24) It should be noted that this declaration is a draft and does not have any formal status. Self-determination was not included in the human rights instruments enacted recently in the ACT, New Zealand, or the United Kingdom (although New Zealand does have a Treaty with its Indigenous peoples). The Committee notes that there is a lack of consensus both domestically and internationally on what the right of self-determination comprises beyond the idea that it involves participation in decision-making. The Committee is concerned that, in the absence of settled precedent about the content of the right as it pertains to Indigenous peoples, the inclusion of a right to self-determination may have unintended consequences. The Committee wants to ensure that any self-determination provision contains some detail about its intended scope and reflects Indigenous communities’ understanding of the term. This is not something that can be achieved in a Charter that must be general in its terms and operate across all of the varied communities in Victoria. Accordingly, the Committee recommends that the Charter not include a right to self-determination. However, as we set out below, we do recommend the inclusion of specific cultural rights for Indigenous peoples. We accept the view of Indigenous scholar Professor Larissa Behrendt that the rights of Indigenous peoples are generally best advanced through laws that are applicable to everyone in the community. (25) As discussed in Chapter 1, the Committee also believes that the specific recognition of the rights of Indigenous peoples should form part of the preamble to the Charter. This could mean that self-determination principles underpin policy decisions relating to Indigenous peoples. It may also ensure that the other rights in the Charter are applied equally and fairly to Indigenous peoples. In addition, the Committee recommends that the four year review discussed in Chapter 7 include a requirement that the Victorian Government conduct consultations with Victorian Indigenous communities to assess whether self-determination should be included in the Charter and, if so, the appropriate definition and scope of that right. 2.4.5 Cultural rightsThe Committee considers that the Charter should contain specific cultural rights for minority groups, recognising that it is particularly important in Victoria’s multicultural society to ensure that cultural heritage and cultural practices are respected and protected. Article 27 of the ICCPR contains the following provision: In those [nation] States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Article 27 ‘is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole’. (26) It confers rights on individuals who belong to minority groups ‘who share in common a culture, a religion and/or a language’. (27) Since the right depends upon the ability of the group to maintain its culture, language or religion, the provision may require ‘positive measures … to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group’. (28) The Committee considers that the cultural rights provision in the Charter should be based upon the wording in article 27 of the ICCPR. In addition, the Committee notes that section 4 of the Multicultural Victoria Act 2004 enshrines in law a number of important principles of multiculturalism. The Committee considers that it is appropriate to reflect these principles in the cultural rights provision. This will help to ensure that mutual respect and understanding is encouraged and that government promotes and preserves diversity and cultural heritage within the context of shared laws, values, aspirations and responsibilities. The Committee also considers that the right to culture should specifically recognise the right of Indigenous peoples to enjoy their own culture, profess and practise their own religion and use and enjoy their own language. The Committee noted in an Indigenous forum held in Melbourne (29) that a number of Victorian Traditional Owner Groups have written a Statement to the Victorian Government which provides: ‘Traditional Owners have traditional and human rights and responsibilities for protecting their cultural heritage in their country.’ The Statement refers to customary rights in relation to land, cultural heritage, natural resources, forests and national parks, traditional hunting, gathering and fishing activities and water resources. Providing explicitly for an Indigenous right to culture is consistent with the views of a large proportion of Indigenous and non-Indigenous people who stressed the importance of cultural rights for Indigenous peoples. This would also be consistent with Australia’s international human rights obligations. It would reflect article 27 of the ICCPR, which has already been interpreted by the United Nations Human Rights Committee as extending to cultural rights of Indigenous peoples, such as the relationship of Indigenous peoples to their lands and waters. (30) [W]e believe that there is a corresponding need for greater protection of Aboriginal cultural interests and a commitment to processes of cultural restoration. Disconnection from culture was cited in the latest Department of Human Services report of Inquiries into Child Deaths as a critical issue facing Aboriginal children and families. We therefore believe protection, restoration and promotion of culture is essential for human rights and addressing disadvantage. Submission 1176: Victorian Aboriginal Child Care Agency The right to take part in cultural life is essential for all young people, as it is for all community members. It is important that the ability to participate in all forms of cultural life are recognised, not just the right to participate in dominant cultural spheres … A greater recognition of Indigenous culture can be an important element in giving students the skills and knowledge they need to ‘walk in two worlds’. Submission 956: Youth Affairs Council of Victoria 2.4.6 Right to found a familyA number of submissions to the Committee argued that the right to found a family is a fundamental right that must be protected in the Charter. For example, the Melbourne Sexuality Law Reform Committee made these comments: Our Committee believes that a right to found a family could help to ensure that the rights of same-sex couples in respect of access to adoption and reproductive technologies are adequately protected by law … Many LGBT [lesbian, gay, bisexual, transgender] people live in long-term relationships and seek to found families. There is no biological or sociological reason to suggest that a same-sex couple is any less capable than an opposite-sex couple to raise children and found a family. (Submission 165) The right to found a family is contained in article 23(2) of the ICCPR and is coupled with the right to marry (which for many years has been a Federal matter and would not be included within the Charter). The provision states: The right of men and women of marriageable age to marry and to found a family shall be recognised. This right was not included in the ACT Human Rights Act 2004. However, it is contained in the United Kingdom Human Rights Act 1998, which recognises the right to found a family ‘according to the national laws governing the exercise of this right’. (31) The Committee considers the right to found a family to be an essential civil and political right that people would expect to see in a human rights instrument. However, the Committee is mindful that the Victorian Law Reform Commission is currently undertaking a reference on assisted reproduction and adoption. This has involved the release of interim position papers and significant community consultation. The results of this reference will have implications for the right to found a family for single people and for same-sex couples in areas such as access to assisted reproductive technologies, recognition of legal parentage and rights to adoption. The Victorian Law Reform Commission has stated in its latest position paper that it anticipates tabling its final report in Parliament during 2006. The Committee does not wish to pre-empt the results of this comprehensive process and therefore does not make a recommendation to include the right to found a family in the Charter. The Committee does, however, recommend that consideration be given to whether the Charter should be expanded to include the right to found a family as part of the four year review process. 2.5 Adapting civil and political rights to the Victorian contextApart from changes to the ICCPR rights referred to already in this Chapter and the modernising of language consistent with provisions in the ACT Human Rights Act 2004, the Committee considers that other rights in the ICCPR should either be modified or not included in the Charter. For example, some modifications or exclusions are necessary because the matters are regulated by Federal law, rather than State law. In other cases, the changes are necessary to ensure consistency with existing Victorian laws. The following paragraphs list the modified or excluded rights and the reason for the proposed modification or exclusion. Right to life: ICCPR articles 6(2)–6(6) are not included in the Charter. Articles 6(2), (4), (5) and (6) concern countries that have not abolished the death penalty and are not relevant in Australia. Article 6(3) speaks of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide 1948. The Committee considers that, as a stand-alone human rights law for Victoria, the Charter should generally express rights without qualifying material such as references to international treaties. Protection from torture, cruel, inhuman or degrading treatment: The Charter modifies article 7 of the ICCPR by providing that a person must not be ‘subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.’ Other Victorian laws concerning medical consent stress that consent must be both voluntary and that the person must have been given sufficient information for an informed decision to be made. (32) The Committee considers that this modification (adding the words and informed) is desirable to ensure that the provision is consistent with existing Victorian law. Freedom from forced work: The Charter does not include ICCPR article 8(3)(c)(ii) which says that work is not considered to be forced or compulsory labour if it is military service or national service required to be performed by conscientious objectors. The Committee notes that military service and national service are generally Commonwealth matters and as such this provision is not appropriate for a State Charter. Right to liberty and security of the person: The Charter modifies ICCPR article 9(2) by providing that a person who is arrested or detained must be told of the reason for the arrest or detention. ICCPR article 9 also contains a right to compensation for anyone who has been unlawfully arrested or detained. Consistent with the Committee’s recommendations concerning damages in Chapter 5, the Committee does not consider that this compensation provision should be included in the Charter as it may amount to a right to damages. The Committee also notes that unlawful detention may give rise to a claim for damages under existing tort law. Humane treatment when deprived of liberty: The Charter modifies ICCPR article 10(2)(a) by requiring that accused persons be segregated from people who have been convicted, except where reasonably necessary. In addition, the Charter does not include the part of ICCPR article 10(3), which states: ‘The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation’. The Committee considers that this is not an appropriate provision for inclusion in the Charter as the prison system may have other aims apart from the reform and rehabilitation of offenders and this remains a matter for public debate. Children in the criminal process: The Charter provision does not include the part of ICCPR article 10(3) that states: ‘Juvenile offenders shall be segregated from adults.’ The Committee decided not to include this provision on the basis that the current system for the punishment of young offenders in Victoria represents best practice. The Committee was concerned that the inclusion of the provision may have the unintended consequence of requiring the automatic removal of offenders, who were under 18 when the crimes were committed, to adult prisons when they turn 18. However, the Committee stresses that, as a general principle, the segregation of young offenders from convicted adults is a fundamental human right. Freedom of movement: The Charter modifies ICCPR article 12 by adding an exception regarding people subject to specific court orders restricting movement. An example might be some Intervention Orders. Expulsion of non-nationals: Article 13 of the ICCPR is not included in the Charter. It specifies conditions that must be met before non-nationals can be expelled from the territory. This provision is not relevant to a State Charter. Right to a fair hearing: The Charter contains a modified form of ICCPR article 14(1) which concerns the exclusion of the press and the public from a trial. The Charter provision includes an additional sub-section to allow exclusion where ‘an Act or the rules of the court or tribunal permit the exclusion’. The Committee considers that this addition is required to ensure that the Charter is consistent with existing Victorian law. The Charter provision also modifies the ICCPR provision by permitting the suppression of all or part of a judgment where the court considers that there are special circumstances which make it reasonably necessary to do so. Rights in criminal proceedings: The Charter provision modifies ICCPR article 14(3) in a number of important respects. First, the Committee has modified the provision to reflect the fact that some people charged with a criminal offence will need, and are entitled to, specialised communication tools and technology in order to understand the nature and reason for the criminal charge and to participate in the judicial process. Secondly, the Committee has adapted the sub-sections dealing with the provision of legal assistance to include references to the Victorian Legal Aid Act 1978 to ensure consistency with current Victorian law. In addition, the Charter provision qualifies the rights of a criminal accused in relation to the attendance and examination of witnesses by including the words ‘unless otherwise provided by law’. The Committee considers that this qualification is necessary to ensure that the special rules in relation to the cross-examination of children or of victims of sexual assault would continue to apply. Compensation for wrongful conviction: Article 14(6) of the ICCPR is not included in the Charter. It provides for the right to compensation in certain circumstances where a person has been wrongly convicted and punished for a crime. Like the right to compensation for unlawful detention, the Committee considers that this provision should not be included in the Charter as it may amount to a right to damages. We note that wrongful conviction may also give rise to a cause of action under existing tort law. Freedom of thought, conscience, religion and belief: The Charter does not contain article 18(4) of the ICCPR, which concerns the liberty of parents and guardians to ‘ensure the religious and moral education of their children in conformity with their own convictions’. The Committee has omitted this provision as it is concerned that it may have the unintended consequence of leading to an enforceable right to education when the Committee has decided that economic, social and cultural rights should not be included in the Charter at this first stage. Freedom of expression: The Charter includes the specific limitation to the freedom of expression contained in ICCPR article 19(3). The Committee considers that this provision is important in recognising that a person’s freedom of expression may be limited having regard to such matters as the rights or reputation of others, the protection of national security or public health. The Committee considers that it is important to make this limitation explicit to avoid situations such as occurred in Canada, where freedom of expression in tobacco advertising was upheld by the courts, even though it was contrary to the interests of public health. Propaganda for war and advocacy of national, racial or religious hatred: ICCPR article 20(1), which prohibits war propaganda, is not included in the Charter. The Committee considers that the provision was primarily included in the ICCPR as a response to the experience of World War II and is less relevant to a modern Victorian Charter. ICCPR article 20(2), which prohibits advocacy of national, racial or religious hatred that incites discrimination, hostility or violence, has also been omitted because it does not express a human right per se, but is rather a direction to government. In addition, the Victorian Racial and Religious Tolerance Act 2001 deals with such matters. Peaceful assembly and freedom of association: The Charter incorporates ICCPR articles 21 and 22(1), which includes the right to form and join trade unions. The Charter does not contain article 22(3) of the ICCPR which refers to Australia’s obligations under International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organise. As mentioned earlier, the Committee prefers a Charter that is a stand-alone document containing core human rights, rather than a Charter that also contains qualifying material based on international treaty obligations. Protection of families and children: The Charter incorporates ICCPR articles 23(1) and 24(1). The Committee has modified the wording of article 23(1) to read ‘Families are the fundamental group unit of society’ rather than ‘The family is the natural and fundamental group unit of society’. The Committee considers that use of the term ‘Families’ is appropriate as it recognises that families can take many and varied forms, all of which are worthy of protection. The Committee has not included the article 23 provisions concerning marriage, nor have we included the article 24 provision concerning children’s right to a nationality as these are essentially Commonwealth matters. In addition, the Committee has not included the article 24 provisions concerning the right to birth registration and to a name. While these rights were more relevant in the post- World War II context in which the ICCPR was drafted, they are less relevant for inclusion in a modern Victorian Charter and are covered by other Victorian laws. Taking part in public life: The ICCPR article 25 has been modified to restrict the right to vote and to occupy public office to eligible persons. The Charter also stresses that in order to participate in public life, people need both the opportunity and access. The Charter contains an additional sub-section, which provides that people have the right to participate in public decisions that affect their lives. This right was stressed by Indigenous communities, young people and people with disability. Right to utilise natural wealth and resources: ICCPR article 47 has also not been included in the Charter. This provision concerns the inherent right of all peoples to enjoy and utilise their natural wealth and resources. The Committee has decided not to include this as an express right because of the difficulties internationally found in the interpretation of the term ‘peoples’ and because the Charter is concerned with individual rights rather than rights attaching to groups. Specific limitations of rights: A number of provisions in the ICCPR contain specific limitation clauses. Apart from the limitations to the freedom of expression explained above, the specific limitations are not included in the Charter as the Committee considers that it is preferable to rely on a single general limitation clause. This is discussed in the following section. RECOMMENDATION 7The following rights from the International Covenant on Civil and Political Rights 1966 should be dealt with in the Charter of Human Rights and Responsibilities as follows:
2.6 How should the rights be balanced?The Committee believes that human rights should not generally be seen as absolute. Rights need to be balanced against each other and other competing public interests. The balancing of rights can happen through an express limitation on a clause-by-clause basis (as in the ICCPR) or through a general limitation clause (as is the case in the ACT, Canada, New Zealand and South Africa). The ICCPR contains specific express limitation clauses. For example, the right to freedom of expression (Article 19) is subject to restrictions such as defamation laws. While this approach can provide more certainty for the listed exceptions, it does not capture the broader balancing process. Many submissions acknowledged the need for the human rights contained in the Charter to be subject to limitations set out in a general limitation clause. As the Office of the Public Advocate stated: The Public Advocate stresses that as well as outlining the rights to be protected and promoted, a charter of human rights must set the parameters for the restriction or denial of rights … the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. (Submission 456) Section 28 of the ACT Human Rights Act 2004 provides one form of limitation clause: Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society. This is consistent with provisions in the human rights instruments in New Zealand and Canada. The provision embodies what is known as the ‘proportionality test’. The Canadian Supreme Court has stated that in order for a limitation on a right to be reasonable and demonstrably justified, two key conditions must be met:
In considering what is most appropriate for Victoria, the Committee found useful the comments of New Zealand practitioners at the academic round-table, who said that the unstructured New Zealand provision (and by implication the ACT and Canadian provisions) can be difficult to interpret and apply on a day-to-day basis. The Committee wants to make sure that the Charter, which will more often be interpreted within government than by the courts, is as easy as possible to apply. As such, a more certain form of guidance about the limitations on rights is needed. The South African Bill of Rights 1996 specifically sets out the matters to be taken into account in deciding if a limitation is reasonable and justifiable. The Committee has drawn on this example and recommends that the limitation clause be drafted as follows: Human rights may be subject only to such reasonable limits set by Victorian laws that can be demonstrably justified in a free and democratic society taking into account all relevant factors, including:
RECOMMENDATION 8The Charter of Human Rights and Responsibilities should state that the rights it protects ‘may be subject only to such reasonable limits set by Victorian laws that can be demonstrably justified in a free and democratic society’. This provision should also provide specific guidance on the factors to be taken into account in this balancing process.
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