Charter of Human Rights and Responsibilities Act 2006 (Vic) – Better than a Bunnings Brochure?

John TobinMelbourne Law Schoolj.tobin@unimelb.edu.au8344 7679

The Advertising Pitch

Hulls Second Reading Speech Today the Govt fulfils its commitment to

provide better protection for HR for all people in Vic

The Bill will benefit all Victorians by recording in one place the basic … rights we all hold and expect govt to observe

But wait there’s more…

The Bill will promote better Govt … [and] … will make sure there is proper debate about whether the proposed measures strike the right balance between rights…

…this bill brings human rights to the Victorian community in a relevant and practical way

Is this a case of false and misleading advertising? Let’s take it for a road test: When can we buy it?

(commencement date) What features does it have?

which rights are included? who must comply?

How does it operate? what are the mechanisms for implementation?

Is it expensive to run?

1. Commencement

Section 2 (1) 1 Jan 2007 except Div 3 and 4 of Part 3 (2) Div 3 and 4 of Part 3 on 1 Jan 2008

Be aware of transitional provisions (s.49) (1) applies all Act b/4 or after commencement Part

2 (means all Acts) (2) does not apply proceedings b/4

commencement Part 2

2. Special features I: The Rights protected Part 2 – c and p rights only [FRED]

Based ICCPR but differences eg: s 10 treatment w/out consent; s 17 best

interests of child; s 20 property rights

Are esc rights irrelevant? Consider section 5 and 4 year review

But make sure you read the fine print Section 7(2) Rights may be subject to limitations that are:

Under law Reasonable as demonstrably justified in a free and

democratic society; and Take into account all relevant factors

Nature of right (status under int’l law) Purpose of limitation (legitimate aim) Nature and extent of limitation (proportionality) Relationship between limitation and purpose (rational

connection) Any less restrictive means reasonably available (minimal

impairment)

And the performance to date… Consider:

Graffiti legislation

Superannuation and same sex entitlements

2. Who must comply?

Public Authorities

What is a ‘public authority’? (s 4) ‘Core’ public authorities (s 4(1))

Consider courts and tribunals 4(1)(j)

‘Functional’ public authorities (s 4(2)): see YL v Birmingham City Council & Ors [2007] UKHL 27 Function conferred by statutory provision Function connected to or identified with functions of Govt etc

Obligations of public authorities Obligations of public authorities (s 38)

Must give ‘proper consideration’ to human rights in decision-making processes

Real, genuine and proportionate consideration

Must act compatibly with human rights

act includes failure to act

So what about the private sector? Consider:

Direct may be functional public authorities public authorities may impose HR conditions in contracts

Indirect legislation regulating private sector subject to section 32

interpretative obligation

3. Implementation Mechanisms No direct cause of action and no right to

damages: s 39(3)

Cf: Bongiorno J in Gray v DPP [2008] VSC 4 ‘The only remedy the Court can provide … is to release

him on bail…’

So….unless he’s right we need to think laterally

Consider the opportunities for litigation Exercise of administrative capacity by court

or tribunal: s 4(1)(j) and s 38 Element of a right to a fair hearing re criminal

or civil matter under s 24 and s 6(2)(b) Interpretation of legislative provision: s 32 Declaration of inconsistent interpretation: s36 Violation HR provides additional ground of

unlawfulness to pre-existing remedy: s 39

Consider the opportunities for advocacy Statement of Compatibility: s 28 and 29 SARC: s 30 (compatibility assessment)

s.t override declarations: s 31 Obligations of public service: s 38

Also: s 7(1)(f) Public Admin Act (active implementation) VEOHRC: s 40 (intervention) and s 41 (monitoring) Ombudsman:

consequential amendments: investigate compatibility of admin action with HR

Special focus: The Interpretative Obligation

All legislation, so far as possible consistent with statutory purpose, must be interpreted compatibly with human rights (s 32(1))

New, overarching principle of statutory interpretation: see, Ghaidan v Goden-Mendoza [2004] AC 557

May displace previous case law and interpretations No requirement of ambiguity or presumptive incompatibility Ordinary meaning of words may be displaced May permit ‘reading in’ or ‘reading down’ provision

Does not affect validity of legislation (s 32(3)(a)) but may affect validity of subordinate legislation where incompatibility is not ‘empowered’ by principal Act (s 32(3)(b))

Consider examples:

Vic Charter s. 24 right to a fair hearing in criminal and civil matters

Vic Charter s 23(3) child convicted of offence to be treated appropriate to age

CYFAct s 360(5) and mandatory penalties under RSAct

4. Is it expensive to run?

… batteries are not included so…

Onus on claimant to est on bal of Pr that right subject to limitation/interference Requires submissions

If yes, onus shifts to respondent to est that limitation justified in accordance s 7(2)

So it is worth buying

UK experience: No discernable increase in volume, costs or

length of litigation

Considered in 35% of House of Lords Cases and ‘substantially affected result’ in about 10%

Cases reached a ‘peak’ in 2001-02 and are now about ½ that

Litigation: Lessons from the UK HRA appears to have focused and stimulated

NGO and CLC litigation activity

Reference to HRA by practitioners and judges often cursory and unsophisticated, reflecting need for more extensive and effective legal professional and judicial education

Enhanced dialogue between UK and other human rights courts

Beyond litigation: Policy and Service Delivery

Improved legislative and executive transparency and accountability

Improved framework for design and delivery of public services. Awareness-raising, education and capacity building around human rights can empower people and result in:

Better public service outcomes

Improved levels of consumer satisfaction

More flexible, individualised and responsive policies and practices

Core principles of FREDA can trigger new thinking and help decision-makers ‘see seemingly intractable problems in a new light’

Key Resources

www.hrlrc.org.au Guide to the Charter Searchable Database of Charter Case Law Articles, Materials and Commentary Monthly E-Bulletin

www.justice.vic.gov.au

Evans & Evans, Australian Bills of Rights: The Law of the Victorian Charter and the ACT HRA (LexisNexis, 2008)

Pound & Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson, 2008)