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Title	CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES BILL
House	ASSEMBLY
Activity	Second Reading
Members	HULLS
Date	4 May 2006=20
Page	1289

4 May 2006 ASSEMBLY

Page 1289

CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES BILL

Second reading

Mr=20 HULLS (Attorney-General) -- I move:=20

That this bill be now read a second time.

This is an historic day for Victoria. Today the = government=20 fulfils its commitment to provide better protection for human rights for = all=20 people in Victoria through the enactment of a charter of rights and=20 responsibilities that will strengthen and support our democratic system. =

Whether you are a man or a woman, young or old, = whether you=20 live in Mildura, Moe, Melton or Mordialloc, whether you are living with = a=20 disability, whatever your income or your background or your religion -- = this=20 bill is about those rights and values that belong to all of us by virtue = of our=20 shared humanity.=20

Australia has a proud record of respect and = acknowledgment of=20 human rights. In 1948 the United Nations adopted the Universal = Declaration on=20 Human Rights, and Australia played a significant role in developing = several of=20 its resulting treaties. In 1980=20

Page 1290

Australia ratified the = International Covenant=20 on Civil and Political Rights. Signed by a federal Labor government in = 1972 and=20 later ratified by a federal coalition government, the ICCPR represents a = widely=20 recognised and accepted standard of democratic civil and political = rights and=20 values which transcend political differences and have widespread = acceptance in=20 our community.=20

However, Australia is the last major common law-based = country=20 that does not have a comprehensive human rights instrument that ensures = that=20 fundamental human rights are observed and that the corresponding = obligations and=20 responsibilities are recognised. Many other common-law countries have = recently=20 enacted human rights charters, and it is to these countries which we = have often=20 looked for guidance in developing our laws.=20

This bill is based on human rights laws that now = operate=20 successfully in the Australian Capital Territory, the United Kingdom and = New=20 Zealand.=20

Importantly, it is nothing like the United States = Bill of=20 Rights. This bill promotes a dialogue between the three arms of the = government=20 -- the Parliament, the executive and the courts -- while giving = Parliament the=20 final say. Unlike the United States, courts will not have the power to = strike=20 down legislation.=20

The bill represents the first legislated charter of = human=20 rights for an Australian state. It follows a comprehensive community=20 consultation undertaken in 2005, during which around 2500 people and=20 organisations took the time to provide views about whether human rights = could be=20 better protected in Victoria. That consultation revealed overwhelming = community=20 support for a change in Victorian law to better protect human rights. = This=20 support came from across the state, in city and rural areas, and across = all=20 sections of the community.=20

After giving detailed consideration to the human = rights=20 consultation committee's report and the views of the Victorian = community, the=20 government has decided to introduce a bill based on the model = recommended in the=20 committee's report, but modified in light of responses to the report.=20

This bill further strengthens our democratic = institutions and=20 the protections that currently exist for those human rights that have a = strong=20 measure of acceptance in the community -- civil and political rights. We = must=20 always remember that the principles and values which underlie our = democratic and=20 civic institutions are both precious and fragile.=20

The bill will benefit all Victorians by recording in = one place=20 the basic civil and political rights we all hold and expect government = to=20 observe.=20

There are of course many laws operating at both the=20 commonwealth and state level that protect human rights and set out the=20 responsibilities of governments, organisations and citizens in the = general=20 community. However, as these rights are included in a variety of places = they are=20 often hard to find. In addition, there are gaps in the existing legal = protection=20 of human rights.=20

The bill will be a powerful tool in assessing whether = human=20 rights protection in Victoria reaches minimum standards. The bill will = promote=20 better government, by requiring government laws, policies and decisions = to take=20 into account civil and political rights. The charter will make sure that = there=20 is proper debate about whether proposed measures strike the right = balance=20 between the rights of Victorians and what limits can be justified in a = free and=20 democratic society.=20

The bill will also be a powerful symbolic and = educative tool=20 for future generations and new arrivals in Victoria.=20

This will help us become a more tolerant society, one = which=20 respects diversity and the basic dignity of all.=20

Importantly, the charter recognises that with rights = come=20 responsibilities, and that everyone in the community has a = responsibility to=20 respect the human rights of others. The bill explicitly states that = nothing in=20 the charter gives a person, entity or public authority a right to limit = or=20 destroy the human rights of any person. In other words, nothing in the = charter=20 may be interpreted as giving any group or person any right to engage in = any=20 activity aimed at destroying any of the rights recognised by the charter = or=20 aimed at limiting them to a greater extent than is provided for in the = charter.=20 Human rights cannot be used as a pretext to violate the rights of = others. For=20 this reason, the bill provides that rights should not generally be seen = as=20 absolute but must be balanced against each other and against other = competing=20 public interests.=20

Some people would have preferred other human rights = to be=20 protected in the bill, including economic, social and cultural rights, = and=20 rights specific to particular groups in the community. Victoria's = experience of=20 a formal human rights instrument is only just beginning. It will be a = matter for=20 us as a community to determine, in light of Victoria's experience with = this=20 charter, whether further rights should be protected by the charter in = the=20 future. These are issues that can be looked at as part of the review of = the=20 charter in four years time. Furthermore, nothing in this bill abrogates = or=20 limits any human rights or freedoms, including economic, social and = cultural=20 rights, children's rights and women's=20

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rights, which are protected in any = other law,=20 including international law.=20

I will now turn to the features of the bill. I would = first like=20 to focus on the rights which will be protected in the bill.=20

Part 2 -- Human rights to be protected in the bill=20

The human rights which are protected by the bill are = set out in=20 part 2.=20

The bill focuses on civil and political rights. These = are the=20 rights which have a strong measure of acceptance in the community. As in = other=20 jurisdictions, the International Covenant on Civil and Political Rights = has been=20 the starting point for the rights set out in the bill, making it = consistent with=20 other human rights instruments in places such as the Australian Capital=20 Territory and New Zealand.=20

However, there are some ICCPR rights which have been = modified=20 by the bill to ensure consistency with existing Victorian laws. In some=20 instances, a right or part of a right contained in the covenant has been = omitted=20 from the charter. Where there is a lack of consensus within Australia = and=20 internationally on what a right comprises, or where rights cover matters = of=20 commonwealth jurisdiction and are consequently inappropriate in state=20 legislation, the rights have not been included in this bill.=20

Part 2 reflects that rights should not generally be = seen as=20 absolute but must be balanced against each other and against other = competing=20 public interests. Clause 7 is a general limitations clause that lists = the=20 factors that need to be taken into account in the balancing process. It = will=20 assist courts and government in deciding when a limitation arising under = the law=20 is reasonable and demonstrably justified in a free and democratic = society.=20

Where a right is so limited, then action taken in = accordance=20 with that limitation will not be prohibited under the charter, and is = not=20 incompatible with the right. It is intended that the law in this context = includes limitations specified by the common law as well as by statutory = provisions. This approach is adopted in many modern human rights = instruments,=20 such as those in the ACT, New Zealand, Canada, and South Africa. The = general=20 limitations clause embodies what is known as the 'proportionality test'. = The=20 weight to be attached to each of the factors listed in clause 7 will = vary=20 depending on the particular right and circumstances that are being = considered.=20

Laws which are necessary in order to protect = security, public=20 order, public safety or public health which limit human rights are = examples of=20 laws which can be demonstrably justified in a free and democratic = society. This=20 bill provides a way of discussing how new powers can be balanced against = existing rights.=20

This bill will not stop the government from taking = strong=20 action to protect the community from terrorist threats or criminal = activity.=20

Similarly, the reasonable limitations provision will = apply in=20 well recognised situations where full, free and informed consent to = medical=20 treatment might not be possible because of an emergency or because the = person is=20 incapable of giving consent. Recognising that some types of therapeutic = research=20 are integrated with medical treatment, recent amendments to the = Guardianship and=20 Administration Act provide procedures for the conduct of such research,=20 including where consent is not able to be obtained. These are also = expected to=20 be within the ambit of the reasonable limitations provision.=20

Again, the reasonable limitations clause will apply = in respect=20 of the right to freedom of movement when there is a properly made order = whereby=20 a person is imprisoned or detained, and also where those with legal=20 responsibilities for people who may present a risk to themselves or = others, such=20 as a guardian under the Guardianship and Administration Act, have a = discretion=20 to act to restrain their freedom of movement or decide where a person = for whom=20 they are responsible should live. Nor should the right to move freely = within the=20 state apply when someone is subject to a lawful order that restricts = their=20 movement, such as a family violence intervention order. It is also = important to=20 state that the right to freedom of movement is observed through = government=20 restraint and is not a positive right to services, such as public = transport=20 services, to facilitate people's movement.=20

There are some particular rights where it is = necessary to=20 detail some specific limitations.=20

Such limitations are not exhaustive and do not = exclude the=20 application of the general limitations provision in clause 7. There are=20 obviously many situations in which consideration of a human right may = arise and=20 it reflects common sense that the limits of the right should be = determined by=20 reference to the general limitations clause if there is no specific = exception.=20

The charter builds upon the existing strengths of = Victorian=20 law, for example, the charter adopts Victoria's existing = antidiscrimination=20 legislation as the basis for the grounds of discrimination addressed in = the=20 charter.=20

The right to freedom of thought, conscience, religion = and=20 belief includes the freedom to choose a religion or belief, and the = freedom to=20 demonstrate the religion in=20

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various ways, either individually = or as part=20 of a community and either in public or private.=20

The right to life is a key civil and political right = and is=20 protected by the bill. As the provision is not intended to affect = abortion laws,=20 a clause is included to put beyond doubt that nothing in the charter = affects the=20 law in relation to abortion or the related offence of child destruction. = The=20 government is mindful of the range of strong community views on this = issue and=20 has never intended the charter, which is aimed at enshrining the = generally=20 accepted core civil and political rights, to be used as a vehicle to = attempt to=20 change the law in relation to abortion.=20

The bill also provides for the widely accepted and = recognised=20 rights in the criminal justice system, such as the right to humane = treatment=20 when deprived of liberty, the right to a fair hearing, rights in = criminal=20 proceedings, rights of children in the criminal process, and the right = not to be=20 tried or punished more than once. In relation to rights in criminal = proceedings,=20 the bill provides that a person charged with a criminal offence has = certain=20 rights, without discrimination, including the right to choose a defence = lawyer=20 or to be defended through legal assistance provided by Victoria Legal = Aid if=20 eligible. It is intended that the bill reflect the limits on the right = to=20 representation at public expense under current Victorian law. The = terminology=20 used in the bill is consistent with that used in the Legal Aid Act 1978. =

The bill establishes a right to privacy and = reputation. A=20 person must not be subject to interference with his or her privacy, = family, home=20 or correspondence that is either unlawful, or that is arbitrary (even if = lawful).=20

It is intended that the right to privacy be = interpreted=20 consistently within the context of Victoria's extensive information = privacy and=20 confidentiality or health records framework, which allows for disclosure = of=20 information in limited circumstances.=20

Consistent with the international covenant's = protection of=20 ethnic, linguistic or religious rights, the bill provides for the rights = of all=20 persons to enjoy their identity and culture, declare and practise their = religion=20 and maintain and use their language. Recognising the special importance = of the=20 Aboriginal people as descendants of Australia's first people, the bill = provides=20 for indigenous people to maintain their kinship ties, and to maintain = their=20 distinctive spiritual, material and economic relationship with the land = and=20 waters and other resources to which they have a connection under = traditional=20 laws and customs.=20

Part 3 -- Application of human rights in Victoria=20

The processes for the parliamentary and court = functions under=20 the bill are set out in part 3.=20

Clause 28 of the bill gives effect to the = government's=20 preferred model for protecting human rights -- namely, a = parliamentary-based=20 model, including a mechanism whereby legislation being introduced into=20 Parliament is certified as compatible with the jurisdiction's human = rights=20 obligations. The tabling in Parliament of a statement as to the = compatibility of=20 a proposed bill with the charter is a key feature of successful human = rights=20 laws in the United Kingdom, New Zealand and the Australian Capital = Territory.=20

The bill requires a member of Parliament introducing = the bill=20 to prepare a statement of compatibility for the bill.=20

This statement must indicate whether in the member's = opinion,=20 the bill is consistent with the charter, and if so, how it is = consistent, or, if=20 the member considers that the bill is inconsistent with human rights, = the nature=20 and extent of the inconsistency. A failure to comply with the = requirements for=20 preparing and tabling a statement of compatibility does not affect the = validity=20 of any statutory provision.=20

Clause 30 of the bill provides a role for the = Scrutiny of Acts=20 and Regulations Committee to consider any bill introduced into = Parliament and to=20 report to the Parliament as to whether the bill is inconsistent with = human=20 rights. There is also a consequential amendment in the bill's schedule = to=20 recognise the committee's new role.=20

Consistent with preserving the sovereignty of = Parliament,=20 clause 31 of the bill provides that in exceptional circumstances = Parliament can=20 declare in an act that the act or a provision within the act will = operate=20 notwithstanding that it is incompatible with one or more of the human = rights=20 contained in the charter. 'Exceptional circumstances' may include = threats to=20 national security or a state of emergency which threatens the safety, = security=20 and welfare of people in Victoria. It is the intention of the government = that=20 this override power should only be used in such circumstances where it = can be=20 shown that the public interest will be best served by doing so. The = member of=20 Parliament who introduces a bill containing an override declaration must = make a=20 statement to Parliament explaining the exceptional circumstances that = justify=20 the inclusion of the override declaration.=20

The consequence of Parliament making such an express=20 declaration would be that the charter would have no application to the = act or=20 provision for a period of five=20

Page 1293

years. This would mean that for = five years=20 after the provision comes into operation, the Supreme Court would not be = able to=20 make a declaration that it cannot interpret a statutory provision in a = way that=20 is consistent with a human right and that the courts would not be = required to=20 interpret the statutory provision in a way that is consistent with human = rights.=20 The override declaration does not remove the usual rules of statutory=20 interpretation or the application of the common law. The bill also = provides for=20 Parliament to be able to re-enact the override declaration at any time = where=20 exceptional circumstances continue to exist.=20

Clause 32 of the bill recognises the traditional role = for the=20 courts in interpreting legislation passed by Parliament.=20

While this bill will not allow courts to invalidate = or strike=20 down legislation, it does provide for courts to interpret statutory = provisions=20 in a way which is compatible with the human rights contained in the = charter, so=20 far as it is possible to do so consistently with their purpose and = meaning. It=20 allows for international law and international judgments to be = considered in=20 interpreting a statutory provision. This means that the judgments and=20 determinations made in respect of the International Covenant on Civil = and=20 Political Rights will be relevant in interpreting a statutory provision. = The=20 bill states that statutory provisions are still valid even if they are=20 inconsistent with a human right.=20

Clause 33 of the bill allows a court or tribunal to = refer a=20 question of law or statutory interpretation that relates to the = application of=20 the charter to the Supreme Court upon application by a party to the = proceeding=20 and if the court or tribunal considers that such a referral is = appropriate.=20

This recognises the need for a court with the = authority of the=20 Supreme Court to determine the significant issues that may arise under = the=20 charter.=20

Clause 34 of the bill provides for the = Attorney-General to=20 intervene in any proceeding before any court or tribunal involving the=20 application of this charter. Clause 35 provides that a party to a = proceeding=20 must give notice to the Attorney-General and the Victorian Equal = Opportunity and=20 Human Rights Commission if an issue arises in a Supreme Court or County = Court=20 proceeding regarding the interpretation of a statutory provision in = accordance=20 with the charter or if a question is referred to the Supreme Court. This = will=20 ensure that the government and relevant statutory bodies are not caught = unawares=20 by possible developments in the interpretation of the charter and that = the=20 government has the opportunity to make representations on these = important=20 issues.=20

Where the Supreme Court is of the opinion that a = statutory=20 provision cannot be interpreted consistently with a human right, clause = 36=20 provides that it may make a declaration that such statutory provision = cannot be=20 interpreted consistently with a human right. Such a declaration does not = affect=20 the validity of the statutory provision, nor does it create in any = person any=20 legal right or give rise to any civil cause of action. Its purpose is to = allow=20 the Parliament to reconsider the provision in light of the declaration = of=20 inconsistent interpretation. This will be achieved by requiring a notice = of the=20 declaration to be sent to the Attorney-General.=20

Pursuant to clause 37, the notice will be tabled in = Parliament=20 at the same time as the relevant minister's formal response to the = notice. These=20 provisions ensure that there is transparency and parliamentary = accountability in=20 the way the government responds to such findings by the court.=20

This is consistent with the dialogue model of human = rights that=20 seeks to address human rights issues through a formal dialogue between = the three=20 branches of government while recognising the ultimate sovereignty of = Parliament=20 to make laws for the good government of the people of Victoria.=20

Clause 38 of the bill provides that it is unlawful = for a public=20 authority to act in a way that is incompatible with a human right = protected by=20 the bill or to fail to give proper consideration to a human right = protected by=20 the bill. This is a key provision of the charter. It seeks to ensure = that human=20 rights are observed in administrative practice and the development of = policy=20 within the public sector without the need for recourse to the courts. = The=20 experience in other jurisdictions that have used this model is that it = is in the=20 area of administrative compliance that the real success story of human = rights=20 lies.=20

Many public sector bodies that already deal with = difficult=20 issues of balancing competing rights and obligations in carrying out = their=20 functions have welcomed the clarity and authority that a human rights = bill=20 provides in dealing with these issues. In conjunction with the general = law, the=20 charter provides a basic standard and a reference point for discussion = and=20 development of policy and practice in relation to these often sensitive = and=20 complex issues.=20

The definition of 'public authority' in clause 4 is = an=20 important provision that determines the limits of the duty in clause 38. = The=20 intention is that the obligation to act compatibly with human rights = should=20 apply broadly to government and to bodies exercising functions of a = public=20 nature. To promote consistency with existing statutory definitions, the = bill=20 makes reference to the definition of 'public official' contained in the = Public=20 Administration Act 2004. This definition includes within the scope of = the=20 charter public sector employees, certain judicial employees, certain=20 parliamentary=20

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officers, persons holding a = statutory office=20 or a prerogative office and directors of public entities.=20

Other core government bodies which will be bound by = the charter=20 include Victoria Police, local councils and entities created by statute = that=20 perform a public function (for example, the Office of the Ombudsman).=20

The charter does not apply to private businesses or = entities or=20 non-government organisations, except to the extent that they may be = exercising=20 functions of a public nature on behalf of the state or a public = authority.=20

The obligation to comply with the charter extends = beyond 'core'=20 government to other entities when they are performing functions of a = public=20 nature on behalf of the state. This reflects the reality that modern = governments=20 utilise diverse organisational arrangements to manage and deliver their=20 services.=20

The bill lists a number of factors that may be taken = into=20 account to determine if a function is of a public nature. These factors = are=20 intended to guide the courts and government on the scope of this concept = but are=20 by no means prescriptive. Similarly, the fact that one or more of the = factors=20 exists does not necessarily mean that the function is of a public = nature. The=20 tests for whether or not a body is exercising a public function need to = be=20 distinguished, however, from situations in which the private sector is = merely=20 being regulated by statute in the operation of a private business. In = the latter=20 case it is not intended that private businesses be covered by the = charter merely=20 as a consequence of being subject to regulation by a public authority.=20

Clause 4 of the bill also provides guidance on the = meaning of=20 'on behalf of the state or a public authority' by clarifying that this = phrase is=20 not intended to be confined to situations of agency, in the strict legal = sense.=20

In relation to entities acting on behalf of the = state, the=20 degree of government regulation and control of the functions being = performed=20 will be one factor to consider. For example, non-government schools are=20 independent of government and, although subject to regulation, are not=20 controlled by government. As such, they are not acting on behalf of the = state=20 for the purposes of the charter and will not be covered by the charter.=20

Clause 46 of the bill sets out regulation-making = powers to=20 enable further certainty to be provided in relation to the application = of the=20 charter by prescribing entities to be public authorities or prescribing = them not=20 to be public authorities for the purposes of the charter, as provided = for in the=20 clause 4 definition of 'public authorities', including when exercising = specific=20 functions.=20

In the 18-month period leading up to full = implementation of the=20 charter, the government will continue to work with interested = organisations and=20 will use the regulation-making power if and where necessary to give = certainty to=20 organisations by ensuring they are appropriately prescribed as public=20 authorities or that they are not prescribed public authorities for the = purposes=20 of the charter in relation to the exercise of certain functions.=20

Clause 39 of the bill also sets out who may seek a = remedy for a=20 breach of the obligation on public authorities to give proper = consideration to a=20 human right protected by the charter. It also provides for the = circumstances in=20 which a remedy may be sought. It is intended that there should be no new = causes=20 of action in respect of breaches of human rights and that damages should = not be=20 awarded for breaches of human rights. This reflects the government's = intention=20 that any available remedies should focus on practical outcomes rather = than=20 monetary compensation.=20

Public authorities will still be bound by the = charter, and=20 existing causes of action that are available to address unlawful actions = by=20 public sector bodies are still available in respect of breaches of the = charter=20 in the same way that they are available for breaches of other laws.=20

Part 4 -- The Victorian Equal Opportunity and Human = Rights=20 Commission=20

Part 4 of the bill confers various additional = functions on the=20 Equal Opportunity Commission Victoria, which is renamed as the Victorian = Equal=20 Opportunity and Human Rights Commission.=20

The bill recognises the need for an identifiable and=20 independent monitor of the charter, as well as the importance of = community=20 education about human rights.=20

Conferring these functions on the existing commission = has the=20 advantage of removing the need to establish a new statutory agency = whilst=20 building on existing expertise. Under clause 41, the commission will = report each=20 year on the operation of the charter. The annual report will examine the = operation of the charter, including declarations made by the Supreme = Court=20 during the year and any override declarations made during the year.=20

The commission, when requested by a government = department, may=20 review a public authority to determine the consistency of programs and = practices=20 with human rights. These types of cooperative activities would=20

Page 1295

make a significant contribution to = the=20 development of a culture of human rights in Victoria.=20

The bill provides for the commission to undertake = community=20 education about the charter.=20

This bill does not allow individual complaints about = human=20 rights breaches to be made to the commission. Involving the commission = in=20 complaints handling would conflict with the primary responsibility of = the courts=20 and tribunals to interpret Victorian law. This bill seeks to achieve a = rights=20 respecting culture across government and the community. It is therefore=20 appropriate that the energies of the commission be focused on achieving = that=20 cultural change across government and in the wider community.=20

Part 5 -- General provisions=20

The bill provides for a review of the operation of = the charter=20 after four years, and again after eight years of operation. Human rights = are not=20 static, nor are the values and aspirations of the Victorian community. = These=20 reviews will help to preserve the flexibility of the charter, to assess = whether=20 it is working effectively and to ensure that it continues to reflect the = values=20 and aspirations of the Victorian community. The range of matters to be=20 considered in the review include whether the charter should include = additional=20 human rights and whether the right to self-determination should be = included.=20 Some of these matters were supported during the community consultation = and it is=20 appropriate that they be considered further once the charter has been=20 implemented and there has been an opportunity to consider its impact.=20

Conclusion=20

This is a significant day in the history of the = Victorian=20 Parliament and, in fact, in the history of Victoria itself. We have a = proud=20 heritage of reform that puts the fair go front and centre and, in this=20 tradition, this bill is the first human rights legislation enacted in = any state=20 in Australia. Having drawn on the experience of comparable jurisdictions = such as=20 New Zealand, the UK and the Australian Capital Territory, the government = has=20 developed a carefully tailored model that reflects the aspirations, = values and=20 circumstances of the Victorian community.=20

It is a model which encourages and promotes dialogue = about=20 human rights between all the institutions of government -- the = Parliament, the=20 courts and the executive. It ensures that human rights are taken into = account=20 when developing new laws and policies. It ensures that the courts = consider human=20 rights when interpreting laws. And above all else, it promotes the need = to=20 respect and promote human rights across government and in the community. =

As with all human rights charters, the bill owes much = to the=20 vision enshrined in the Universal Declaration of Human Rights that arose = in=20 response to the horrors of the Second World War. Emerging from the = shadow of so=20 many atrocities and acts of inhumanity, the global community recognised = that=20 civilised societies needed a lasting statement of the fundamental values = shared=20 by everyone. Because they are so fundamental for the freedom and good = government=20 of our communities, those human rights are still relevant today. It is = with this=20 background and legacy that this bill brings human rights to the = Victorian=20 community in a relevant and practical way. It enshrines values of = decency,=20 respect and human dignity in our law, and lays the foundation for = protecting=20 human rights in the daily lives of all Victorians.=20

I commend the bill to the house.=20

Debate adjourned on motion of Mr McINTOSH (Kew).=20

Debate adjourned until Thursday, 18 May.=20

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CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES BILL

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