Opinion piece in the Herald Sun - Protecting people

28/01/2008
by Helen Szoke, CEO

The fact that the Victorian Human Rights Charter has been so hotly debated since its introduction on 1 January this year is a testament to the health of our democracy. Rights and freedoms are of interest and concern to us all and this can only be positive.

But let's make sure the debate is based on fact.

There is a common misconception that the charter operates in the same way as the US Bill of Rights.

It does not.

Under the US Bill of Rights, citizens can individually pursue a breach of these rights by another in the courts.

Under the Victorian Human Rights Charter, an individual cannot pursue legal action because they believe their rights have been breached.

This means we will not suddenly see a rash of people suing each other because of an alleged breach of their human rights.

Under the charter, a human rights argument can only be introduced to support an existing action in the courts, not be the substance of the claim itself.

So the notion that the charter will lead to a "lawyers' picnic" is misleading at best.

What the charter does is compel state government departments, local governments and public authorities to consider our human rights when they deliver services, make decisions and draft legislation.

These rights include freedom of expression; protection from torture and cruel and inhumane or degrading treatment; the right to liberty and security; and the right to privacy and reputation.

Practically, this means that where a decision, law or service is likely to affect, say, a child's right to learn their parent's language in a classroom, or the ability of a person with a disability to cast their vote on election day, something practical is done about it.

Some argue that if breaches of the charter cannot be pursued in court then what is the point?

But under the charter the courts do have an important role in looking at human rights matters in the context of other proceedings before them.

Additionally, the Supreme Court has the power to declare a law inconsistent with the charter and refer it back to the Parliament for consideration.

This important responsibility enhances the court's traditional role of interpreting the law and should not be confused or misrepresented as the power to strike down law or, in effect, make law.

The court does not have the power to strike down a law because it breaches or limits human rights.

The power to make or amend laws lies with the Parliament and the Parliament alone.

It would be very unusual for any government to hand over its law-making power to the bench.

The charter's primary function is to affect the laws that shape our society at the back end: during the consultation, drafting and debate stages of the legislative process.

The charter does not protect people from dealing with the consequences of their criminal behaviour.

A person charged with a crime cannot misuse the protections of the charter to escape punishment.

However, we must remember that human rights apply to everyone because they are human, even people who have committed crimes.

A good example of this occurred this week when Justice Bongiorno cited the charter when deciding to grant bail to a man accused of violent crimes.

Justice Bongiorno granted bail with multiple conditions on the basis that the accused was facing an extended time in remand with the prosecution unable to set a timetable for the trial.

In deciding such matters, judges have always balanced the rights of the individual with the risk to the community.

The charter now explicitly requires a balance between individual rights, responsibilities and the protection of others and the community in general.

It is refreshing and in many ways unprecedented that a government would legislate so vigorously to enhance the democratic process. <

Fighting for the rights of those we know and love is second nature, but assuring the rights of everyone, regardless of their role or social status is the true test of a democracy.

We have long held the view that our society is modern, diverse and inclusive, and the introduction of the Victorian Human Rights Charter only goes further towards proving this.