Rights, Responsibilities and RespectThe Report of the Human Rights Consultation CommitteeChapter 3
Chapter 3 - Who should the Charter apply to?
3.1 SummaryHuman rights belong to all human beings, so the Charter of Human Rights and Responsibilities should cover all people in Victoria, regardless of whether or not they are citizens. The Charter should bind public authorities, creating an obligation upon the Victorian Government and local councils to observe the rights in the Charter. However, the Charter should not bind the Victorian Parliament with respect to proceedings in Parliament, nor can it bind the courts in their development of the common law. Because many public functions are now delivered by the private sector, the Charter should sometimes bind private organisations. However, it should only apply to private organisations when they are performing public functions on behalf of the Victorian Government (that is, when they are acting as ‘public authorities’). The Charter should not create new obligations between individuals or organisations. It should only extend to the relationship between people and government and those acting on behalf of government. Sometimes the Charter will have some effect upon the relationship between individuals when government has chosen to regulate those relationships. 3.2 Who has human rights?Australia’s Human Rights and Equal Opportunity Commission has said that human rights are for ‘everybody, everywhere, all the time’. (1) Our entitlement to human rights comes not from being a particular type of person, but rather from just being a human being. If we take this as a starting point, the answer to the question of who has human rights seems quite simple: we all have human rights. However, in different parts of the world, law-makers have taken different paths when deciding who should have legally enforceable rights under human rights legislation. For example, in some countries corporations as well as individuals are able to bring human rights cases. Some countries also give all people in their country the same freedoms and protections, whilst others treat citizens and non-citizens differently in regard to particular human rights. 3.2.1 Rights as human beings or citizens?The clear majority of people making submissions to the Committee or taking part in consultation meetings who talked about this issue said that the Charter should apply to all people in Victoria. Most people felt that human rights should apply to everyone because of their humanity, not just people who had been born in Australia or had become citizens. It is important that, as a Charter of Human Rights, lack of citizenship does not exclude some people from access to the guarantees provided for under the proposed law. Submission 1020: World Vision Australia The Committee’s view is that all people, regardless of immigration or other status such as their race or religion, should be protected under the Charter. It is a matter of common sense that human rights protections will apply in different ways, according to which right is in question. For example, no person, whether citizen, resident or visitor, should be subjected to cruel and degrading treatment. On the other hand, the Charter should not give tourists the right to vote. As we set out in Chapter 2, the Charter will allow for these types of distinctions by ensuring that the rights are not absolute and that they can be limited where it is reasonable to do so. 3.2.2 Individual and group rightsSome people were worried that cultural background might be used to decide who has or does not have human rights. Others thought that human rights should belong to groups of people, particularly in regard to cultural rights. This would mean that groups of people could enforce rights not just as a series of individuals but also as communities. People see their rights in different ways. In a consultation with the Ministerial Advisory Council for Cultural and Linguistic Diversity, the Committee was told that for many people, family and community rights are very real and may be more important than individual rights in the way people think about themselves and their connections with society. For example, the right to self-determination for Indigenous Australians can be important both as an individual and community right. Group rights provide a new way of looking at rights to which very few western-style human rights laws have responded. Other nations, like the United Kingdom, tend not to protect rights at the level of groups and attach rights only to individuals. Although the Committee recognises that many people see their rights as having a communal aspect, we note that generally human rights are seen as attached to individuals. Therefore, the Committee believes that the Charter should only confer rights upon individuals. This will not prevent protection of the right to practice culture. As discussed in Chapter 2, cultural rights based on Article 27 of the International Covenant on Civil and Political Rights should be included in the Charter. 3.2.3 Rights for corporations?Traditionally, human rights law has focused on the relationship between governments and people. However, when thinking about who holds human rights, the idea of corporations having rights also needs to be considered. Dr Andrew Butler from New Zealand, who attended the Committee’s expert’s roundtable, made the point that a lot of the freedoms we enjoy are through corporations, such as the right to a free press. He suggested that there might be important reasons to include corporations as being protected under some rights. Others stated that the negatives of allowing corporations to benefit from rights outweigh the positives. Conceptually, some people feel that human rights should be restricted to humans because the human dignity which is the source of human rights can only be found in humans, not corporations. The Committee found the submission of Professor Marcia Neave and Professor Spencer Zifcak to be useful in considering this issue: We have given thoughtful consideration to the question of who should be regarded as possessing human rights. On balance, we are of the view that only individuals possess human rights. It is a conceptual error to think that corporate entities have ‘human’ rights. We do not doubt that corporate entities should be entitled to a diverse array of economic entitlements and market-related freedoms. These, however, are conceptually and categorically distinct from human rights which have their foundation in the desire of all peoples to recognise, preserve and strengthen respect for individual human dignity and autonomy. (Submission 840). Or as Doug Pollard stated: Breaches of human rights are rarely clear-cut it is usually a case of balancing one person’s rights against another’s, but it is very important for the law to be quite clear that it deals with HUMAN rights: companies, for example, are not human individuals and do not in themselves have rights, though an individual manager or employee does have rights. (Submission 39) Overseas experience demonstrates that, unless human rights legislation clearly states that it gives rights only to individuals, corporations may be able to use human rights laws to promote their commercial interests. As the Cancer Council of Victoria said: [C]are needs to be taken in the drafting of any legislation to ensure that it does not inadvertently give rise to new rights or opportunities for other legal persons. Unless the language is clear, courts may interpret the legislation as creating corporate rights. It is almost certain that if the language is at all unclear, corporations will encourage them to do so. (Submission 473) For example, in Canada, the United States and in Europe, courts have found that the right of free speech extends to commercial speech. In Canada, the Supreme Court ruled that tobacco laws governing advertising and health warnings were inconsistent with the right of freedom of expression in the Canadian Charter of Rights and Freedoms 1982. (2) The Committee recognises the need to avoid unintended consequences arising from the Charter. We are also mindful that human rights legislation should not interfere with the legitimate regulation of commercial activity by government, especially where that regulation is aimed at improving matters such as public health, consumer protection and the environment. We also accept the argument put by the Cancer Council of Victoria that care needs to be taken in the drafting of the Charter to make sure that corporate rights cannot be implied. Accordingly, the Committee accepts that the Charter should be explicit about who does and does not have human rights under the legislation. In the South African and New Zealand Bills of Rights, rights extend to corporations recognised as ‘other legal persons’, but only so far as practicable taking into account the nature of the right. This allows the Courts to determine on a case-by-case basis which rights apply to corporations (for example freedom of expression for media organisations) and which do not (such as freedom from torture). However, this approach opens up uncertainty as to the application of the law. The Committee prefers the approach adopted by the Australian Capital Territory (ACT) Human Rights Act 2004, which includes a statement that the legislation confers rights only on individuals. This approach will provide certainty without losing important rights such as a free press. Journalists and other people will still be able to assert their right to freedom of expression. RECOMMENDATION 9The Charter of Human Rights and Responsibilities should provide that human rights belong to all people in Victoria and that only individual persons have human rights. 3.3 Who should be bound by the Charter?3.3.1 Rights between people and governmentThroughout our consultation, the Committee stressed that we are only looking at the idea of establishing rights between government and the people. Our job was not to examine the idea of establishing new rights or changing existing rights between individuals or between individuals and companies. However, where government has regulated the rights that lie between individuals by statute it may be that those relationships are somewhat affected by the Charter. The many existing laws that regulate relationships between individuals in Victoria include the Equal Opportunity Act 1995 and the Racial and Religious Tolerance Act 2001. We did receive some submissions that talked about these and other laws. While we note that there is some strong feeling in the community about such matters, both positive and negative, we make no recommendations about these or other laws. They lie outside the task set for us. 3.3.2 Government and the idea of a ‘public authority’One of the most important questions for the operation of the Charter is: if the government is to be bound by the Charter, what then is ‘the government’? Some human rights laws, such as in the United Kingdom, bind government in its dealings with the community by defining government and its component parts as being ‘public authorities’. Other systems, such as in the Australian Capital Territory, have not included a definition of government or of a public authority. While section 29 of the ACT Human Rights Act 2004 says that it ‘applies to all Territory laws’ it is silent on whether this exhausts the scope of its application. The lack of a clear definition in the ACT legislation has been criticised. For example, as Dan Meagher of Deakin Law School stated: If parliamentary sovereignty is taken seriously within the government’s preferred rights framework, then in my view two points emerge from the application ambiguity problem in the ACT … First, the Bill of Rights must make as clear as possible those persons and bodies to whom it applies. The sovereignty of Parliament in this regard – that is, the extent to which it wishes to provide rights protection – cannot be preserved and promoted by the courts (or other public officials and bodies) and private (legal) persons without this kind of clear textual guidance. (Submission 489) The Committee’s view is that it is important to bring as much precision as possible to the area by first, defining what is or is not a public authority and secondly, making it clear that the Charter only binds public authorities. People and organisations providing important public services should not be left uncertain about whether they must protect fundamental human rights under the Charter; nor should the people receiving those services be left in doubt about whether or not their rights are protected. The Committee does not want to create ambiguities that the courts may need to resolve. This view is also consistent with the Statement of Intent, which expresses a clear preference for Parliament to have the last say in regard to rights protection. That goal can be achieved by setting out how far the Charter will extend with as much clarity as possible. 3.3.3 ‘Public authority’Modern governance is complex and often interacts with the private sector, (including for-profit companies as well as not-for-profit or community based organisations). Capturing all modern governance arrangements in the public sector with a simple definition creates some challenges. There are a number of options that could be applied to define a ‘public authority’. One option is to include only designated government departments and statutory agencies. People making submissions and taking part in consultations were concerned that such a narrow definition would exclude significant amounts of public activity given the large amount of outsourcing or delegation of government services that has occurred in recent decades. The views of women who have experienced domestic and family violence reflected the views of many people: WHW [Women’s Health West] also regards the corporate or private sector as part of the community with a particular responsibility to promote and protect human rights … This is all the more important given the number of private sector agencies from which the public sector purchases services for disadvantaged groups (e.g. private prisons, care services for people who are elderly or have a disability), the impact of privatisation of infrastructure and essential services such as public transport and utilities, and the interaction between the public and private sectors in key areas such as Workcover. (Submission 476) People also feared that a too narrow definition could create an incentive to contract out services to avoid compliance. However, it is important to remember that governments cannot so easily evade their responsibility to safeguard the human rights contained in instruments such as the International Covenant on Civil and Political Rights 1966 by delegating their task to private bodies. Where government relies upon private organisations to perform essential public functions, such as the running of prisons, it still retains responsibility for those functions. While this idea of a non-delegable duty can apply in regard to things like prisons and health services, it is less clear cut in other areas of public activity. There is legitimate community concern that a narrow definition of ‘public authority’ might lead to inequity in rights protection. Another option would be to list all relevant public authorities in a schedule to the Charter, either as individual bodies or as classes of organisations. However, the danger of listing agencies is that the flexibility required to cover future governance arrangements can be lost. If the list was a short one, it would also be contrary to the aim in the Statement of Intent to improve standards of governance and promote a culture of human rights across the spectrum of public activity. To capture this intention, private sector organisations (both for-profit and not-for-profit) undertaking a public function on behalf of the Victorian government could be bound by the Charter in addition to those entities expressly included in a list, for example, government Departments, statutory authorities, Victoria Police and local councils. This was the preferred option amongst many community members participating in the consultation. The Victorian Council of Social Service stated that: Acknowledging the increasing role of private and community sector organisations in the delivery of Government and essential services in Victoria, VCOSS recommends that the measures … apply to such private and community sector organisations through their inclusion as conditions of Government contracts. (Submission 1014) The Victorian Institute of Forensic Mental Health concurred: [A]ny Charter should apply to public and private providers of government services and the same consequences for breaches of human rights should exist for both public and private service provision. (Submission 1932) Some people thought that human rights obligations should rest with the private sector even when they are not performing public functions. Dr Ben Saul from the University of New South Wales argued that: If the objective of human rights law is the protection of human dignity, it is logical that remedies be available for violations of human rights whether committed by public or private actors. (Submission 1096) The Committee believes that the focus of the Charter should be on the obligations of government to the community, with government defined through the idea of a ‘public authority’. The Charter ought to bind a private sector organisation only when it is acting on behalf of government in performing a public function or duty. This is a similar approach to that now taken in the United Kingdom. Such a definition would require government departments to inform contractors of their obligations under the Charter. The risk is that businesses or organisations engaged in government work may be resistant to what may be perceived as an additional layer of regulation. However, with education and training there should be no reason why a private sector provider of a public service could not operate within human rights principles when delivering that service. We note from their submission that the Committee for Melbourne (3) has already recognised and is promoting human rights principles as part of a ‘Global Compact’ with the United Nations. This Compact encourages private companies to protect and promote an even wider range of human rights than would be contained in the Charter. We are also aware that Victorian companies operating overseas may have to be aware of and comply with human rights laws in the countries where they operate. In this way, complying with human rights is now seen by many companies as good business practice. The first principle of the Global Compact is for companies to ‘support and respect the protection of international human rights within their sphere of influence’. The second is to ‘make sure that they are not complicit in human rights abuses’. (4) It is already a common feature of government contracts and funding agreements that organisations be required to act lawfully in regard to occupational health and safety, equal opportunity and similar obligations. Requiring compliance with human rights standards would be a natural progression in this process of ensuring the best possible outcomes for the people of Victoria, irrespective of which organisation is carrying out the public or government function. In the United Kingdom, while it is possible for government departments to include human rights protections in contracts with service providers, there is no legal obligation to do so. However, the United Kingdom Audit Commission has produced a contracting checklist for use by public authorities and has advised that: A good practice public body will adopt a pro-active approach to protecting service users’ convention rights when contracting out the provision of its services. Some authorities are beginning to build human rights concerns into their risk management systems … The contracts secured will be better tailored to the needs of the individual and, in particular, will seek to protect their Convention rights. (5) This form of management is intended to reduce the likelihood that the private organisation avoids liability for human rights breaches while the contracting government department remains liable. RECOMMENDATION 10The Charter of Human Rights and Responsibilities should bind ‘public authorities’. 3.4 How should ‘public authority’ be defined?The Committee prefers a definition of a public authority that captures the range of ways that public functions are carried out in Victoria. This is for reasons of certainty, equity and comprehensiveness, and reflects accepted practice in New Zealand and the United Kingdom. Section 3 of the New Zealand Bill of Rights Act 1990 states: This Bill of Rights applies only to acts done
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. Section 6(5) further states: ‘In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’. The United Kingdom Parliament was given a limited exclusion from this definition to avoid compelling it to amend legislation which the courts have declared incompatible with the European Convention on Human Rights and Fundamental Freedoms 1950. The same exclusion should be made under the Victorian Charter to ensure that it reflects the continuing sovereignty of the Victorian Parliament. Even in countries like the United Kingdom where there is express guidance on the definition of a public authority, there is still room for disagreement as to the bodies to which it applies. In effect, the United Kingdom legislation creates two categories of public authorities. The first are ‘core’ public authorities, such as the central and local government and the courts, which must act compatibly with the list of human rights in all they do. They must meet human rights standards both as institutions and as service providers. The second category covers entities such as corporations that are bound by the Human Rights Act 1998 only when performing ‘functions of a public nature’. For example, a private security firm would be required to comply with human rights in its running of a prison, but not in providing security to a supermarket. These bodies have been termed ‘hybrid’ or ‘functional’ public authorities. The Victorian community told us that it is important that the definition of public authority be given a wide meaning that includes those who exercise ‘hybrid’ or devolved public power. The question then becomes: which test to apply? During 2003 and 2004, the Joint Committee on Human Rights of the British Parliament undertook an inquiry into the meaning of public authority under the Human Rights Act 1998. The inquiry looked at a number of court cases where the definition of a public authority had been considered. In the lower courts, the approach has been to look at the relationship between the government and the private organisation. This includes looking at how ‘enmeshed’ the relationship was, as well as the nature of the function performed. In contrast, the House of Lords focussed primarily on the nature of the function being performed. The United Kingdom Joint Committee preferred the ‘functional’ approach taken by the House of Lords (7) as compared to the approach taken by the lower courts. It concluded that ‘there is a fundamental problem not with the design of the law, but with its inconsistent and restrictive application by the courts’. (8) The UK Home Secretary, when debating this issue in Parliament, pointed out that public functions are evolving over time so that it is vital that the test of a public function for these ‘hybrid’ or ‘functional’ bodies relate to the ‘substance and nature of the act, not to the form and legal personality’. (9) In other words, the best test is to look at what is being done, not who is doing it. The ‘functional test’ first asks: is the activity a public function? If the answer is yes, then the next question becomes: is the activity being undertaken on behalf of the Victorian Government? For example: A private transport company could be bound by the Charter when transporting prisoners between a court and a prison, but not when it transports livestock. A charity delivering services to people with disabilities under a contract or service agreement for the Victorian Government could be bound by the Charter when delivering those services, but not when it is running a charity shop to raise funds. A fully privatised utility would not be bound by the Charter when it delivers electricity as it is not doing so on behalf of the Victorian Government. It is important to remember that some organisations, such as independent, non-government schools although not bound as public authorities, are already regulated by government by way of standards for registration. These standards should comply with Charter rights, because they form part of Victorian law and policy, all of which will be measured against the Charter. 3.4.1 Should the courts be a ‘public authority’?In the United Kingdom and New Zealand, the courts are bound to protect human rights, both as institutions and in the functions they perform. In these and other nations, this has led courts to develop the common law in its application to relations between private individuals, where there is no government involvement to pay greater heed to human rights. This is sometimes called a ’horizontal effect’. It gives judges a framework through which they can apply human rights across the broad range of decisions they make. However, the inclusion of the courts as a ‘public authority’ may create challenges in Australia’s federal system, which according to the High Court has one unified common law. As the Australian Human Rights Centre at the University of New South Wales pointed out: [T]he prospects of a Charter of Human Rights having an indirect horizontal effect in Victoria are limited. Following the decisions of the High Court of Australia in Lipohar v The Queen (10) and Esso Australia v The Commissioner of Taxation, (11) the current position… is that there is one unified common law of Australia, which is not susceptible to direct influence by legislation in any one State. (Submission 1080) This means that, while the Victorian courts may be bound by the Charter as institutions, there is a limited capacity for them to be required to apply the rights in the development of the common law. This is because no one State can change the ‘unified common law’ of Australia. If Victoria attempted to do so, there is a real risk that the High Court would strike down part of the Charter as being inconsistent with the Australian Constitution. The Committee believes that the courts should be bound by the Charter in carrying out their normal functions as institutions, such as in hiring staff and the like, but should not be compelled to apply the common law in compliance with the Charter. The courts may still find the Charter useful in their development of the common law, as they do a range of other values and principles. 3.4.2 Should local government be a ‘public authority’?The Committee believes that the Victorian Charter should apply to both State and local government, but is mindful that local government should not be overburdened with compliance costs. As The Charter Group stated in their submission: All levels of government have a responsibility to ensure our human rights are protected and promoted, and local government is no exception and indeed can provide leadership on this when other levels of government fail to protect rights. (Submission 842) Local Government plays a unique role in Victoria. As decision makers, as providers of services and as drivers of community development and participation, local councils have been described as the level of government with which people often have closest contact. It is local governments, rather than federal or State Governments, which are instrumental in establishing a sense of community and providing a democratic forum whereby local people of diverse backgrounds can participate in political debates and be heard. Local government determines the immediate environment in which we live our daily lives. It is the first level of government and the one at which citizens gain their most direct experience of representative democracy and participation. Submission 947: Victorian Local Governance Association Throughout the consultation, the Committee was reminded of excellent examples of human rights principles implemented by local government. Councils throughout Victoria have established initiatives that promote local democracy, citizen rights and community wellbeing. The Committee was keen to hear from councils about whether they thought local government should be bound by the Charter and met councils throughout metropolitan, regional and rural Victoria. The Committee also attended a roundtable organised by the Municipal Association of Victoria. Meetings were also held with the Victorian Local Governance Association. Submissions were received from many more local councils. When asked whether local government should be bound by the Charter, some councils said yes and others said no. All stressed the importance of not creating a financial burden on local government as this would be counter-productive to building a human rights culture because it could divert resources away from service delivery. The Committee notes the view expressed by the Municipal Association of Victoria ‘that there is no urgent need to improve human rights protection at this time’. It went on to say It has been argued that the promotion of human rights can strengthen communities and assist in the development of individuals’ capacity to participate within communities. On this basis the recognition and protection of human rights is generally supported by the local government sector in Victoria. The Municipal Association of Victoria also reported that: All councils that have communicated with the MAV have indicated a willingness for local government [to] play a role in protecting human rights, particularly in promoting human rights at the local level. There is a clear need to ensure that any responsibilities given to local government are adequately resourced considering the limited revenue raising capacity of councils. (Submission 811) The Committee takes the view that existing reporting mechanisms should be utilised to ensure that local councils are fulfilling their obligations under the Charter rather than creating additional layers of accountability. The Committee would not like to see resources of local government diverted from service provision. However, we agree with people attending the Indigenous consultation meeting in Warrnambool that ‘any general standards in a Human Rights Act need to be enforceable at the local government level’. We agree that simplicity is the key to making sure local government can engage with the Charter. As Mayor David Vendy of the City of Ballarat suggested ‘it is better to have a common standard across local government’. (12) The Committee also notes the danger identified at the Municipal Association of Victoria roundtable that the Charter might only get ‘picked up in social documents. It needs to go across all aspects of local government’. The roundtable suggested that to ensure both comprehensiveness and flexibility, local councils could build their human rights strategies into local plans. It was felt this would provide for practical application within local government without being too prescriptive. It is important to remember that Charter rights such as the right to a fair hearing can apply to civil matters, and so local councils will be mindful to avoid delays in decision making, for example in planning matters. The right to equality will also be of significance to local government. In this regard the Committee is confident that the Charter will give added impetus to the good work already being done by local government to deliver services and to work in ways that promote a culture of human rights. RECOMMENDATION 11The definition of a ‘public authority’ should include government departments, statutory authorities, Victoria Police, and local government. It should also extend to all persons or bodies that perform public functions on behalf of the State of Victoria, when they are performing those public functions. The definition should not include the Victorian Parliament in regard to proceedings in Parliament, nor should it bind the courts in their development of the common law. The Charter should include a power to make regulations that add or remove organisations, or classes of organisations, from the category of public authority. 3.5 What should be the duties of ‘public authorities’?The Statement of Intent stresses the importance of developing a human rights culture within government. One way to make that commitment effective is to include in the Charter an obligation on public authorities to implement human rights standards. This could mean that all legislation, policies and practices would be covered by the Charter. There may be concern that adopting a human rights framework in policy making and service delivery will lead to delay and make departments risk averse. However, other countries routinely include human rights considerations in the day-to-day work of government and the policy making process has survived intact. Based upon the experience in other jurisdictions, it is clear that policy making and services can be improved by such arrangements. In the United Kingdom, the Lord Chancellor’s Department found that after two years of the Human Rights Act 1998, public decision-making had improved by harnessing it to a clear set of fundamental standards. The ACT is also reporting positive incremental change in how government undertakes its work, including the delivery of human services, after only one year of operation of the ACT Human Rights Act 2004. There are some signs that the government is becoming increasingly conscious of the Act in developing new Bills, and that the courts are aware of the Act in interpreting legislation. We may also be witnessing the beginnings of a cultural change in the ACT government bureaucracy towards accepting the place of human rights in policy development. Submission 2520: Gabrielle McKinnon, Regulatory Institutions Network, Australian National University (13) Submissions to the Committee indicated strong support for human rights standards being incorporated into the development and delivery of government policy. There was also strong support for an obligation to be placed on all public authorities, including government departments, agencies and enterprises, to consider the Charter generally in their practices and procedures. Robert Wade, a client of the Homeless Persons’ Legal Clinic, said a Charter would: make me feel safe in the knowledge that we as humans are having a major input into the daily decisions that government makes … Ensure that the actual Charter is being run and respected, by all agencies, officials, advocates and everyone associated with it. (Submission 212) People attending community consultation meetings stated that all activities of government should be covered by any Victorian Charter. As most community members have contact with government through day-to-day decision-making and service delivery, they expect that human rights standards should be met by all people carrying out a public function. Community members have also stressed the need for public servants to be given training and education on human rights. The ACT Human Rights Act 2004 does not clearly set out any such duty. Section 29 only states that the Act ‘applies to all Territory laws’. It is arguable that public bodies operating under Territory laws are bound. It has been stated by Jon Stanhope, Chief Minister of the ACT, and Elizabeth Kelly, Acting Chief Executive of the ACT Department of Justice and Community Safety, that, in effect, the legislation creates a duty on all public officials to act consistently with human rights, so far as it is possible to do so. However, Dr Simon Evans and Dr Carolyn Evans from the University of Melbourne suggested in their submission (14) that the lack of clarity in this area may lead to conflicting views being taken by different departments and may require the issue to be settled by the courts. This contrasts with the United Kingdom’s Human Rights Act 1998, under which public authorities are expressly required to act compatibly with Convention rights. Section 6 of the Act states:
The Committee considers that including a duty in such clear terms is preferable to the course taken in the ACT, which leaves room for debate and lacks clarity. Based on the lessons learnt from other jurisdictions, the Committee believes that the Charter should be as explicit as possible regarding the duties imposed on public authorities. This would provide clear direction to public authorities, assist senior public servants in their efforts to promote a human rights culture within their departments and give life to human rights standards for everyone engaged in public service in Victoria. A duty to comply with human rights would impose new checks and balances on how government undertakes its work. The Committee believes that human rights standards are both necessary and desirable, are consistent with good practice in service delivery and help to build trust in our public services. For example, policies and practices should be fair and non-discriminatory, participatory and empowering, holistic, transparent and accountable. (15) However, the Committee recognises that the changes required should not be too excessive or burdensome. The inclusion of a duty to comply with human rights would require a preparation period for public authorities to allow them to undertake analysis and review of their practices and policies and to make any necessary changes before the duty comes into effect. In the United Kingdom, a two year lead-in period was allowed for this preparation. This period was necessary given the size of government across the United Kingdom. As we recommend in Chapter 7, an eighteen month preparation period would be appropriate for Victoria. RECOMMENDATION 12All ‘public authorities’ should be required to comply with the Charter of Human Rights and Responsibilities.
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