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12 March 1991 - Current

 
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES BILL
Page 1289
4 May 2006
ASSEMBLY Second Reading HULLS
               CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES BILL
                                 Second reading

  Mr HULLS (Attorney-General) -- I move:
  That this bill be now read a second time.
This  is  an  historic  day for  Victoria.  Today  the  government  fulfils  its
commitment to  provide  better protection  for  human rights for  all  people in
Victoria through the enactment of a charter  of rights and responsibilities that
will strengthen and support our democratic system.

Whether  you  are a man or a woman,  young  or old, whether you live in Mildura,
Moe, Melton or Mordialloc,  whether you are  living with a disability,  whatever
your income  or your  background or  your religion  -- this bill is about  those
rights and values that belong to all of us by virtue of our shared humanity.
Australia has a proud record  of  respect and acknowledgment of human rights. In
1948 the United  Nations adopted the Universal  Declaration on Human Rights, and
Australia played a  significant  role in  developing  several of  its  resulting
treaties. In 1980 


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Australia ratified the International Covenant on Civil and Political Rights. Signed by a federal Labor government in 1972 and later ratified by a federal coalition government, the ICCPR represents a widely recognised and accepted standard of democratic civil and political rights and values which transcend political differences and have widespread acceptance in our community. However, Australia is the last major common law-based country that does not have a comprehensive human rights instrument that ensures that fundamental human rights are observed and that the corresponding obligations and responsibilities are recognised. Many other common-law countries have recently enacted human rights charters, and it is to these countries which we have often looked for guidance in developing our laws. This bill is based on human rights laws that now operate successfully in the Australian Capital Territory, the United Kingdom and New Zealand. Importantly, it is nothing like the United States Bill of Rights. This bill promotes a dialogue between the three arms of the government -- the Parliament, the executive and the courts -- while giving Parliament the final say. Unlike the United States, courts will not have the power to strike down legislation. The bill represents the first legislated charter of human rights for an Australian state. It follows a comprehensive community consultation undertaken in 2005, during which around 2500 people and organisations took the time to provide views about whether human rights could be better protected in Victoria. That consultation revealed overwhelming community support for a change in Victorian law to better protect human rights. This support came from across the state, in city and rural areas, and across all sections of the community. After giving detailed consideration to the human rights consultation committee's report and the views of the Victorian community, the government has decided to introduce a bill based on the model recommended in the committee's report, but modified in light of responses to the report. This bill further strengthens our democratic institutions and the protections that currently exist for those human rights that have a strong measure of acceptance in the community -- civil and political rights. We must always remember that the principles and values which underlie our democratic and civic institutions are both precious and fragile. The bill will benefit all Victorians by recording in one place the basic civil and political rights we all hold and expect government to observe. There are of course many laws operating at both the commonwealth and state level that protect human rights and set out the responsibilities of governments, organisations and citizens in the general community. However, as these rights are included in a variety of places they are often hard to find. In addition, there are gaps in the existing legal protection of human rights. The bill will be a powerful tool in assessing whether human rights protection in Victoria reaches minimum standards. The bill will promote better government, by requiring government laws, policies and decisions to take into account civil and political rights. The charter will make sure that there is proper debate about whether proposed measures strike the right balance between the rights of Victorians and what limits can be justified in a free and democratic society. The bill will also be a powerful symbolic and educative tool for future generations and new arrivals in Victoria. This will help us become a more tolerant society, one which respects diversity and the basic dignity of all. Importantly, the charter recognises that with rights come responsibilities, and that everyone in the community has a responsibility to respect the human rights of others. The bill explicitly states that nothing in the charter gives a person, entity or public authority a right to limit or destroy the human rights of any person. In other words, nothing in the charter may be interpreted as giving any group or person any right to engage in any activity aimed at destroying any of the rights recognised by the charter or aimed at limiting them to a greater extent than is provided for in the charter. Human rights cannot be used as a pretext to violate the rights of others. For this reason, the bill provides that rights should not generally be seen as absolute but must be balanced against each other and against other competing public interests. Some people would have preferred other human rights to be protected in the bill, including economic, social and cultural rights, and rights specific to particular groups in the community. Victoria's experience of a formal human rights instrument is only just beginning. It will be a matter for us as a community to determine, in light of Victoria's experience with this charter, whether further rights should be protected by the charter in the future. These are issues that can be looked at as part of the review of the charter in four years time. Furthermore, nothing in this bill abrogates or limits any human rights or freedoms, including economic, social and cultural rights, children's rights and women's
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rights, which are protected in any other law, including international law. I will now turn to the features of the bill. I would first like to focus on the rights which will be protected in the bill. Part 2 -- Human rights to be protected in the bill The human rights which are protected by the bill are set out in part 2. The bill focuses on civil and political rights. These are the rights which have a strong measure of acceptance in the community. As in other jurisdictions, the International Covenant on Civil and Political Rights has been the starting point for the rights set out in the bill, making it consistent with other human rights instruments in places such as the Australian Capital Territory and New Zealand. However, there are some ICCPR rights which have been modified by the bill to ensure consistency with existing Victorian laws. In some instances, a right or part of a right contained in the covenant has been omitted from the charter. Where there is a lack of consensus within Australia and internationally on what a right comprises, or where rights cover matters of commonwealth jurisdiction and are consequently inappropriate in state legislation, the rights have not been included in this bill. Part 2 reflects that rights should not generally be seen as absolute but must be balanced against each other and against other competing public interests. Clause 7 is a general limitations clause that lists the factors that need to be taken into account in the balancing process. It will assist courts and government in deciding when a limitation arising under the law is reasonable and demonstrably justified in a free and democratic society. Where a right is so limited, then action taken in accordance with that limitation will not be prohibited under the charter, and is not 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, such as those in the ACT, New Zealand, Canada, and South Africa. The general limitations clause embodies what is known as the 'proportionality test'. The weight to be attached to each of the factors listed in clause 7 will vary depending on the particular right and circumstances that are being considered. Laws which are necessary in order to protect security, public order, public safety or public health which limit human rights are examples of laws which can be demonstrably justified in a free and democratic society. This bill provides a way of discussing how new powers can be balanced against existing rights. This bill will not stop the government from taking strong action to protect the community from terrorist threats or criminal activity. Similarly, the reasonable limitations provision will apply in well recognised situations where full, free and informed consent to medical treatment might not be possible because of an emergency or because the person is incapable of giving consent. Recognising that some types of therapeutic research are integrated with medical treatment, recent amendments to the Guardianship and Administration Act provide procedures for the conduct of such research, including where consent is not able to be obtained. These are also expected to be within the ambit of the reasonable limitations provision. Again, the reasonable limitations clause will apply in respect of the right to freedom of movement when there is a properly made order whereby a person is imprisoned or detained, and also where those with legal responsibilities for people who may present a risk to themselves or others, such as a guardian under the Guardianship and Administration Act, have a discretion to act to restrain their freedom of movement or decide where a person for whom they are responsible should live. Nor should the right to move freely within the state apply when someone is subject to a lawful order that restricts their movement, such as a family violence intervention order. It is also important to state that the right to freedom of movement is observed through government restraint and is not a positive right to services, such as public transport services, to facilitate people's movement. There are some particular rights where it is necessary to detail some specific limitations. Such limitations are not exhaustive and do not exclude the application of the general limitations provision in clause 7. There are obviously many situations in which consideration of a human right may arise and it reflects common sense that the limits of the right should be determined by reference to the general limitations clause if there is no specific exception. The charter builds upon the existing strengths of Victorian law, for example, the charter adopts Victoria's existing antidiscrimination legislation as the basis for the grounds of discrimination addressed in the charter. The right to freedom of thought, conscience, religion and belief includes the freedom to choose a religion or belief, and the freedom to demonstrate the religion in
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various ways, either individually or as part of a community and either in public or private. The right to life is a key civil and political right and is protected by the bill. As the provision is not intended to affect abortion laws, a clause is included to put beyond doubt that nothing in the charter affects the law in relation to abortion or the related offence of child destruction. The government is mindful of the range of strong community views on this issue and has never intended the charter, which is aimed at enshrining the generally accepted core civil and political rights, to be used as a vehicle to attempt to change the law in relation to abortion. The bill also provides for the widely accepted and recognised rights in the criminal justice system, such as the right to humane treatment when deprived of liberty, the right to a fair hearing, rights in criminal proceedings, rights of children in the criminal process, and the right not to be tried or punished more than once. In relation to rights in criminal proceedings, the bill provides that a person charged with a criminal offence has certain rights, without discrimination, including the right to choose a defence lawyer or to be defended through legal assistance provided by Victoria Legal Aid if eligible. It is intended that the bill reflect the limits on the right to representation at public expense under current Victorian law. The terminology 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 person must not be subject to interference with his or her privacy, family, home or correspondence that is either unlawful, or that is arbitrary (even if lawful). It is intended that the right to privacy be interpreted consistently within the context of Victoria's extensive information privacy and confidentiality or health records framework, which allows for disclosure of information in limited circumstances. Consistent with the international covenant's protection of ethnic, linguistic or religious rights, the bill provides for the rights of all persons to enjoy their identity and culture, declare and practise their religion and maintain and use their language. Recognising the special importance of the Aboriginal people as descendants of Australia's first people, the bill provides for indigenous people to maintain their kinship ties, and to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources to which they have a connection under traditional laws and customs. Part 3 -- Application of human rights in Victoria The processes for the parliamentary and court functions under the bill are set out in part 3. Clause 28 of the bill gives effect to the government's preferred model for protecting human rights -- namely, a parliamentary-based model, including a mechanism whereby legislation being introduced into Parliament is certified as compatible with the jurisdiction's human rights obligations. The tabling in Parliament of a statement as to the compatibility of a proposed bill with the charter is a key feature of successful human rights laws in the United Kingdom, New Zealand and the Australian Capital Territory. The bill requires a member of Parliament introducing the bill to prepare a statement of compatibility for the bill. This statement must indicate whether in the member's opinion, the bill is consistent with the charter, and if so, how it is consistent, or, if the member considers that the bill is inconsistent with human rights, the nature and extent of the inconsistency. A failure to comply with the requirements for preparing and tabling a statement of compatibility does not affect the validity of any statutory provision. Clause 30 of the bill provides a role for the Scrutiny of Acts and Regulations Committee to consider any bill introduced into Parliament and to report to the Parliament as to whether the bill is inconsistent with human rights. There is also a consequential amendment in the bill's schedule to recognise the committee's new role. Consistent with preserving the sovereignty of Parliament, clause 31 of the bill provides that in exceptional circumstances Parliament can declare in an act that the act or a provision within the act will operate notwithstanding that it is incompatible with one or more of the human rights contained in the charter. 'Exceptional circumstances' may include threats to national security or a state of emergency which threatens the safety, security and welfare of people in Victoria. It is the intention of the government that this override power should only be used in such circumstances where it can be shown that the public interest will be best served by doing so. The member of Parliament who introduces a bill containing an override declaration must make a statement to Parliament explaining the exceptional circumstances that justify the inclusion of the override declaration. The consequence of Parliament making such an express declaration would be that the charter would have no application to the act or provision for a period of five
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years. This would mean that for five years after the provision comes into operation, the Supreme Court would not be able to make a declaration that it cannot interpret a statutory provision in a way that is consistent with a human right and that the courts would not be required to interpret the statutory provision in a way that is consistent with human rights. The override declaration does not remove the usual rules of statutory interpretation or the application of the common law. The bill also provides for Parliament to be able to re-enact the override declaration at any time where exceptional circumstances continue to exist. Clause 32 of the bill recognises the traditional role for the courts in interpreting legislation passed by Parliament. While this bill will not allow courts to invalidate or strike down legislation, it does provide for courts to interpret statutory provisions in a way which is compatible with the human rights contained in the charter, so far as it is possible to do so consistently with their purpose and meaning. It allows for international law and international judgments to be considered in interpreting a statutory provision. This means that the judgments and determinations made in respect of the International Covenant on Civil and Political Rights will be relevant in interpreting a statutory provision. The bill states that statutory provisions are still valid even if they are inconsistent with a human right. Clause 33 of the bill allows a court or tribunal to refer a question of law or statutory interpretation that relates to the application of the charter to the Supreme Court upon application by a party to the proceeding and if the court or tribunal considers that such a referral is appropriate. This recognises the need for a court with the authority of the Supreme Court to determine the significant issues that may arise under the charter. Clause 34 of the bill provides for the Attorney-General to intervene in any proceeding before any court or tribunal involving the application of this charter. Clause 35 provides that a party to a proceeding must give notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission if an issue arises in a Supreme Court or County Court proceeding regarding the interpretation of a statutory provision in accordance with the charter or if a question is referred to the Supreme Court. This will ensure that the government and relevant statutory bodies are not caught unawares by possible developments in the interpretation of the charter and that the government has the opportunity to make representations on these important issues. Where the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, clause 36 provides that it may make a declaration that such statutory provision cannot be interpreted consistently with a human right. Such a declaration does not affect the validity of the statutory provision, nor does it create in any person any legal right or give rise to any civil cause of action. Its purpose is to allow the Parliament to reconsider the provision in light of the declaration of inconsistent interpretation. This will be achieved by requiring a notice of the declaration to be sent to the Attorney-General. Pursuant to clause 37, the notice will be tabled in Parliament at the same time as the relevant minister's formal response to the notice. These provisions ensure that there is transparency and parliamentary accountability in the way the government responds to such findings by the court. This is consistent with the dialogue model of human rights that seeks to address human rights issues through a formal dialogue between the three branches of government while recognising the ultimate sovereignty of Parliament to make laws for the good government of the people of Victoria. Clause 38 of the bill provides that it is unlawful for a public authority to act in a way that is incompatible with a human right protected by the bill or to fail to give proper consideration to a human right protected by the bill. This is a key provision of the charter. It seeks to ensure that human rights are observed in administrative practice and the development of policy within the public sector without the need for recourse to the courts. The experience in other jurisdictions that have used this model is that it is in the area of administrative compliance that the real success story of human rights lies. Many public sector bodies that already deal with difficult issues of balancing competing rights and obligations in carrying out their functions have welcomed the clarity and authority that a human rights bill provides in dealing with these issues. In conjunction with the general law, the charter provides a basic standard and a reference point for discussion and development of policy and practice in relation to these often sensitive and complex issues. The definition of 'public authority' in clause 4 is an important provision that determines the limits of the duty in clause 38. The intention is that the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature. To promote consistency with existing statutory definitions, the bill makes reference to the definition of 'public official' contained in the Public Administration Act 2004. This definition includes within the scope of the charter public sector employees, certain judicial employees, certain parliamentary
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officers, persons holding a statutory office or a prerogative office and directors of public entities. Other core government bodies which will be bound by the charter include Victoria Police, local councils and entities created by statute that perform a public function (for example, the Office of the Ombudsman). The charter does not apply to private businesses or entities or non-government organisations, except to the extent that they may be exercising functions of a public nature on behalf of the state or a public authority. The obligation to comply with the charter extends beyond 'core' government to other entities when they are performing functions of a public nature on behalf of the state. This reflects the reality that modern governments utilise diverse organisational arrangements to manage and deliver their services. The bill lists a number of factors that may be taken into account to determine if a function is of a public nature. These factors are intended to guide the courts and government on the scope of this concept but are by no means prescriptive. Similarly, the fact that one or more of the factors exists does not necessarily mean that the function is of a public nature. The tests for whether or not a body is exercising a public function need to be distinguished, however, from situations in which the private sector is merely being regulated by statute in the operation of a private business. In the latter case it is not intended that private businesses be covered by the charter merely as a consequence of being subject to regulation by a public authority. Clause 4 of the bill also provides guidance on the meaning of 'on behalf of the state or a public authority' by clarifying that this phrase is not intended to be confined to situations of agency, in the strict legal sense. In relation to entities acting on behalf of the state, the degree of government regulation and control of the functions being performed will be one factor to consider. For example, non-government schools are independent of government and, although subject to regulation, are not controlled by government. As such, they are not acting on behalf of the state for the purposes of the charter and will not be covered by the charter. Clause 46 of the bill sets out regulation-making powers to enable further certainty to be provided in relation to the application of the charter by prescribing entities to be public authorities or prescribing them not to be public authorities for the purposes of the charter, as provided for in the clause 4 definition of 'public authorities', including when exercising specific functions. In the 18-month period leading up to full implementation of the charter, the government will continue to work with interested organisations and will use the regulation-making power if and where necessary to give certainty to organisations by ensuring they are appropriately prescribed as public authorities or that they are not prescribed public authorities for the purposes of the charter in relation to the exercise of certain functions. Clause 39 of the bill also sets out who may seek a remedy for a breach of the obligation on public authorities to give proper consideration to a human right protected by the charter. It also provides for the circumstances in which a remedy may be sought. It is intended that there should be no new causes of action in respect of breaches of human rights and that damages should not be awarded for breaches of human rights. This reflects the government's intention that any available remedies should focus on practical outcomes rather than monetary compensation. Public authorities will still be bound by the charter, and existing causes of action that are available to address unlawful actions by public sector bodies are still available in respect of breaches of the charter in the same way that they are available for breaches of other laws. Part 4 -- The Victorian Equal Opportunity and Human Rights Commission Part 4 of the bill confers various additional functions on the Equal Opportunity Commission Victoria, which is renamed as the Victorian Equal Opportunity and Human Rights Commission. The bill recognises the need for an identifiable and independent monitor of the charter, as well as the importance of community education about human rights. Conferring these functions on the existing commission has the advantage of removing the need to establish a new statutory agency whilst building on existing expertise. Under clause 41, the commission will report each year on the operation of the charter. The annual report will examine the operation of the charter, including declarations made by the Supreme Court during the year and any override declarations made during the year. The commission, when requested by a government department, may review a public authority to determine the consistency of programs and practices with human rights. These types of cooperative activities would
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make a significant contribution to the development of a culture of human rights in Victoria. The bill provides for the commission to undertake community education about the charter. This bill does not allow individual complaints about human rights breaches to be made to the commission. Involving the commission in complaints handling would conflict with the primary responsibility of the courts and tribunals to interpret Victorian law. This bill seeks to achieve a rights respecting culture across government and the community. It is therefore appropriate that the energies of the commission be focused on achieving that cultural change across government and in the wider community. Part 5 -- General provisions The bill provides for a review of the operation of the charter after four years, and again after eight years of operation. Human rights are not static, nor are the values and aspirations of the Victorian community. These reviews will help to preserve the flexibility of the charter, to assess whether it is working effectively and to ensure that it continues to reflect the values and aspirations of the Victorian community. The range of matters to be considered in the review include whether the charter should include additional human rights and whether the right to self-determination should be included. Some of these matters were supported during the community consultation and it is appropriate that they be considered further once the charter has been implemented and there has been an opportunity to consider its impact. Conclusion This is a significant day in the history of the Victorian Parliament and, in fact, in the history of Victoria itself. We have a proud heritage of reform that puts the fair go front and centre and, in this tradition, this bill is the first human rights legislation enacted in any state in Australia. Having drawn on the experience of comparable jurisdictions such as New Zealand, the UK and the Australian Capital Territory, the government has developed a carefully tailored model that reflects the aspirations, values and circumstances of the Victorian community. It is a model which encourages and promotes dialogue about human rights between all the institutions of government -- the Parliament, the courts and the executive. It ensures that human rights are taken into account when developing new laws and policies. It ensures that the courts consider human rights when interpreting laws. And above all else, it promotes the need to respect and promote human rights across government and in the community. As with all human rights charters, the bill owes much to the vision enshrined in the Universal Declaration of Human Rights that arose in response to the horrors of the Second World War. Emerging from the shadow of so many atrocities and acts of inhumanity, the global community recognised that civilised societies needed a lasting statement of the fundamental values shared by everyone. Because they are so fundamental for the freedom and good government of our communities, those human rights are still relevant today. It is with this background and legacy that this bill brings human rights to the Victorian community in a relevant and practical way. It enshrines values of decency, respect and human dignity in our law, and lays the foundation for protecting human rights in the daily lives of all Victorians. I commend the bill to the house. Debate adjourned on motion of Mr McINTOSH (Kew). Debate adjourned until Thursday, 18 May.