Charter of Human Rights and Responsibilities Act 2006 (Vic)

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

• John Tobin
• Melbourne Law School
• j.tobin_at_unimelb.edu.au
• 8344 7679

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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

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But wait theres 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

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Is this a case of false and misleading
advertising?

• Lets 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?

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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

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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

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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 intl 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)

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And the performance to date

• Consider
• Graffiti legislation
• Superannuation and same sex entitlements

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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

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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

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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

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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 hes right we need to think laterally

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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

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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

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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))

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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

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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)

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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

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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

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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

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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)