Media Releases
Breaking new ground: Victoria leads on human rights
01/04/2009
It’s not often that we get a ‘front seat’ at the evolution of a major new area of law – but that’s what is happening in Victoria as courts and tribunals, legislators and lawyers grapple with the implications of the state’s new Charter of Human Rights and Responsibilities.
In June 2006, Victoria became the first Australian state to adopt a comprehensive human rights charter that enshrines civil, political and some cultural rights into law. After a period of preparation, January 2008 marked the formal incorporation of Victoria’s courts and tribunals into the operations of the Charter, with judges, magistrates and tribunal members now required to interpret legislation compatibly with human rights. One year down the track, the impact of the Charter on Victoria’s legal system is providing an emerging body of evidence that refutes some of the arguments being used to oppose a similar charter at the national level.
Before Victoria’s Charter was introduced, opponents warned that it would create ‘a tsunami of litigation’ and that it would undermine parliament and transfer power to the courts. While it’s still early days, Victoria’s experiences indicate that this is simply not the case, and that parliament and the judiciary, as well as the wider community, have much to gain from a well-designed human rights instrument.
In its second report on the operations of the Charter (released this week), the Victorian Equal Opportunity and Human Rights Commission has observed that the Charter is working effectively, has already achieved a great deal and is making steady progress towards building a community culture where human rights are recognised, respected and protected.
One of the reasons for the success of the Charter is that it is based on a ‘dialogue model’ – placing obligations on all three branches of government (executive, legislature and judiciary) and encouraging a public exchange of views about human rights between the three branches. By adopting this model, Victoria has ensured that parliament retains its sovereignty, because it cannot be forced to adopt a particular position on human rights and can enact legislation to override the Charter in certain circumstances. Already, we are seeing an expanded and much richer exchange between the three arms of government on human rights in Victoria, with parliament – in particular – much more actively engaged in scrutinising and debating the human rights implications of legislation.
Over the last year, the application of the Charter required the Victorian Supreme Court to examine the distinction between the administrative and judicial functions of courts and tribunals. The Court also considered the impact of the Charter on applications for bail, while the Court of Appeal considered the implications of the Charter on extended supervision orders for serious sex offenders. The Victorian Civil and Administrative Tribunal considered the impact of the Charter in relation to exemptions from equal opportunity legislation, involuntary treatment under the state’s Mental Health Act and supervised treatment of a person with a disability. These – and other – decisions have involved delicate and difficult legal issues, such as the balancing of a person’s human rights with the need to reduce the risk to others. An important aspect of the Charter is that – for the first time in Victoria – a formal, public discussion is taking place about the human rights associated with these issues and the human rights implications of decisions made by lawmakers and public authorities. In itself, this is a significant change.
The ‘rush’ of litigation predicted by some has not eventuated. This is largely because the Charter does not establish a new, independent cause of action that can be pursued by individuals who allege that their human rights have been breached. As lawyers gain confidence in using the Charter, more matters may come before the courts where human rights issued are raised directly. But even if these matters increase substantially, it should not be a cause for concern. As with any other type of dispute, if people believe their human rights are being restricted and they cannot resolve the issue, it is appropriate for them to pursue the matter and have it determined by the courts. After all, access to independent courts for the resolution of legal disputes is an essential element of democracy.
Victoria’s legal system is just beginning to implement and apply the Charter of Human Rights and Responsibilities. But as the Federal Government embarks on a national human rights consultation, it would be wise to examine Victoria’s experience to date. This experience enables us to say with confidence that a formal human rights framework can deliver significant improvements in public policy, decisions and services. We can show that adopting human rights principles improves the development and interpretation of our laws. Perhaps most importantly, we can demonstrate that a human rights charter is not something to be feared, but something that can make a real and lasting difference in protecting our rights and freedoms.
Dr Helen Szoke, Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission
