A Victorian Parliament committee has recommended changes to the Charter of Rights and Responsibilities which would weaken in considerably. But in a late and surprising move, Premier Ted Bailleau has moved management of issue into his department, where it may be cultivated, and out of Attorney-General’s, where it is likely to wither from a drought of enthusiasm. Author of CLA’s submission to the committee, Rhys Michie, reports on developments.
Premier emerges as possible Charter champion
By Rhys Michie*
The review of the Victorian Charter of Human Rights and Responsibilities Act is complete, and the Scrutiny of Acts and Regulations Committee (SARC) released its final report to the Victorian Parliament in September 2011.
Rhys Michie, who was lead author of the CLA submission, has analysed the long and detailed report to provide this brief summary:
- SARC has taken a soft approach to the inclusion of more civil and political rights, saying that consideration should be given to re-examining them. SARC has recommended against including any further rights; specifically economic, social and cultural rights, children’s rights, women’s rights and right to indigenous self determination. (Recommendations 1, 2 & 3).
- There are a number of proposed changes to the Charter that have the effect of improving the operation of the Charter. For example there are recommendations aimed at improving the public and parliamentary scrutiny of Bills, to make the processes clearer, open and easier for the lay person to understand. (i.e. Recommendations 9, 10 & 11). These scrutiny provisions are supported by both sides of politics.
- However, there is a division between the ruling Coalition and Labor (SARC is a Coalition-dominated committee) on the role of the courts. The really important part is Recommendation 35 where the Coalition wants to remove the courts’ role.
- The Labor minority expressed the view that retaining the role of the courts would provide an opportunity to conduct an additional human rights assessment that complemented the Parliament’s function, encourage MPs to engage in long term risk assessments of the impact of legislation, would allow the human rights of vulnerable Victorians to be enforced beyond the parliamentary chamber, and provide a mechanism to hold public authorities to account.
The Labor minority supports retaining the core elements of the ‘dialogue model’ and making improvements, such as:
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- potentially including more civil and political rights,
- fewer and shorter statements of compatibility,
- fewer gaps in provisions for parliamentary scrutiny of new legislation, and redrafting provisions in plain language,
- revising interpretation provisions to maintain traditional interpretation methods and the primacy of purpose,
- replacing the complex definition of “public authority” with a list of bodies and the functions the Charter applies to,
- transferring the Supreme Court’s role in making declarations of inconsistency to an independent, non-judicial body that reports to parliament, and
- express identification of remedies.
The Coalition majority on SARC supports repealing the obligations on public authorities to act in accordance with the Charter, and repealing provisions that require laws to be interpreted in accordance with the Charter.
The reforms to improve scrutiny are supported by both Coalition and Labor, as are the recommendations not to include economic, social and cultural rights, children’s and women’s rights and the right to indigenous self determination.
The effect of the Coalition majority’s position would be to dramatically weaken the applicability of the Charter and the protections it affords to the people in Victoria. This would be the first time in the world that a democratic government had wound back a human rights charter and would be deleterious to vulnerable sections of the Victorian community.
In a late-September development, Premier Ted Baillieu has indicated he supports the Labor minority position.
It appears to be highly relevant that he has decided that the Department of Premier and Cabinet will oversee the government’s response, rather than the Department of Justice, run by the Attorney-General – AG Robert Clark is a Charter critic.
While people feared that the Charter may be repealed when the SARC report was handed down, it appears that rights and liberties may have found a new and unsuspected champion in the persona of the Premier.
* Rhys Michie is a graduate of Charles Darwin University in the Northern Territory and the Australian National University in Canberra. He is a member of CLA and specialises in civil and political rights.
CLA Civil Liberties Australia
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