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Focus: Victorian Government commits to human rights

23 March 2012

In brief: The Victorian Government has expressed a strong commitment to human rights, and will retain and improve the Charter of Human Rights and Responsibilities Act. Partner Alex Cuthbertson (view CV) and Lawyer Catie Shavin report.

How does it affect you?

  • The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) will be retained substantially in its current form. Some provisions and processes will be simplified and clarified.
  • Public authorities (including business entities that perform public functions) will remain subject to obligations under the Charter, pending consideration of further legal advice to be obtained by the State Government.
  • Courts and tribunals will continue to play an important role in human rights protection under the Charter framework. The nature of this role will be the subject of further legal advice to be obtained by the Government.

Background: Review of the Charter

The Charter was enacted in 2006, to ensure better protection of human rights in Victoria. In 2011, the Scrutiny of Acts and Regulations Committee (SARC) conducted a review of the first four years of the Charter's operation.1

Under section 44(2) of the Charter, SARC was required to consider whether:

  • additional human rights should be included in the Charter (including economic, social and cultural rights, and the right to self-determination);
  • regular auditing of public authorities to assess human rights compliance should be mandatory; and
  • further provision should be made regarding remedies available in relation to certain breaches of the Charter.

The terms of reference for the Review required consideration of further matters, including:

  • the role of courts and tribunals;
  • the overall benefits and costs of the Charter; and
  • options for reform or improvement of the regime for protecting and upholding rights and responsibilities in Victoria.

SARC received a significant number of public submissions and also conducted hearings.

The SARC Report

SARC's Report of the Review was tabled in Parliament on 14 September 2011.2

In the Report, SARC recommended that no further rights be included in the Charter. It made a number of further recommendations to address issues identified in the terms of reference, including in respect of the definition and obligations of public authorities, and the process under which declarations of inconsistent interpretation are made.

Significantly and controversially, SARC presented two alternate options for the Charter's reform:

  • Option 1: That the current Charter framework be retained with significant reforms and simplification.
  • Option 2: That provisions for the scrutiny of new law be retained but the obligations of public authorities and role of the courts be removed.

The second option was stated to be SARC's majority preference.

Government response to the Report

The Premier, Ted Baillieu, distanced the Victorian Government from the Report, stating on 14 September 2011 that '[t]he views expressed in the SARC report are those of the cross-party committee members and not necessarily those of the Coalition Government'.3 He indicated that the Government would consider the Report and the submissions received by SARC, and that the Department of Premier and Cabinet would coordinate preparation of the Government's response.

The Government response was tabled in Parliament on Wednesday, 14 March 2011. The Government affirmed its strong commitment to the principles of human rights and its view that legislative protection of these rights provides a tangible benefit to Victorians.

The Government agreed with SARC's recommendations that it is appropriate to:

  • simplify the process relating to statements of compatibility;
  • close gaps in parliamentary scrutiny provisions; and
  • improve complaints mechanisms.

Significantly, the Government rejected the second option that SARC proposed for reform of the Charter. The Government acknowledged SARC's concerns relating to the obligations of public authorities and the role of courts, but stated that it believes there is an ongoing place for the courts in protecting rights under the Charter framework. Rather than address these issues in its response to the Report, the Government has stated that it will seek specific legal advice on them, and on the potential inclusion in the Charter of additional civil and political rights.

Conclusion

In recent weeks, the split in Cabinet between moderates, such as Ted Baillieu, and key conservative ministers, such as Attorney-General Robert Clark, created significant uncertainty regarding the Charter's future.4 Following this uncertainty, human rights advocates have welcomed the Government's commitment to the Charter framework.5

The full extent of any amendments to be made to the Charter, and the framework for human rights protection it provides, will not be known until the Victorian Government has obtained and considered further legal advice. In the meantime, the Charter will continue operation in its current form.

Footnotes
  1. Information regarding the Review, including the terms of reference and copies of substantive submissions, is available here.
  2. Scrutiny of Acts and Legislation Committee, Review of the Charter of Human Rights and Responsibilities Act 2006, available here.
  3. Premier of Victoria, Charter of Human Rights SARC Report (14 September 2011), available here.
  4. Farah Farouqe, 'Liberals split on rights Charter', The Age (9 March 2012), available here.
  5. Philip Lynch, 'Keeping human rights Charter a victory for all Victorians', Herald Sun Blog (14 March 2012), available here.

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