Transcript Charter of Human Rights and Responsibilities Act 2006 (Vic

Charter of Human Rights and
Responsibilities Act 2006 (Vic) –
Better than a Bunnings
Brochure?
John Tobin
Melbourne Law School
[email protected]
8344 7679
The Advertising Pitch
Hulls Second Reading Speech
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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…
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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?
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Let’s take it for a road test:
When can we buy it?
(commencement date)
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What features does it have?
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How does it operate?
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which rights are included?
who must comply?
what are the mechanisms for implementation?
Is it expensive to run?
1. Commencement
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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
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Be aware of transitional provisions (s.49)
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(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
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Part 2 – c and p rights only [FRED]
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Based ICCPR but differences
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eg: s 10 treatment w/out consent; s 17 best
interests of child; s 20 property rights
Are esc rights irrelevant?
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Consider section 5 and 4 year review
But make sure you read the fine print
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Section 7(2)
Rights may be subject to limitations that are:
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Under law
Reasonable as demonstrably justified in a free and
democratic society; and
Take into account all relevant factors
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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…
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Consider:
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Graffiti legislation
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Superannuation and same sex entitlements
2. Who must comply?
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Public Authorities
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What is a ‘public authority’? (s 4)
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‘Core’ public authorities (s 4(1))
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Consider courts and tribunals 4(1)(j)
‘Functional’ public authorities (s 4(2)): see YL v
Birmingham City Council & Ors [2007] UKHL 27
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Function conferred by statutory provision
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Function connected to or identified with functions of Govt etc
Obligations of public authorities
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Obligations of public authorities (s 38)
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Must give ‘proper consideration’ to human
rights in decision-making processes
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Real, genuine and proportionate
consideration
Must act compatibly with human rights
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act includes failure to act
So what about the private sector?
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Consider:
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Direct
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may be functional public authorities
public authorities may impose HR conditions in contracts
Indirect
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legislation regulating private sector subject to section 32
interpretative obligation
3. Implementation Mechanisms
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No direct cause of action and no right to
damages: s 39(3)
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Cf: Bongiorno J in Gray v DPP [2008] VSC 4
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‘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
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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
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Statement of Compatibility: s 28 and 29
SARC: s 30 (compatibility assessment)
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Obligations of public service: s 38
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s.t override declarations: s 31
Also: s 7(1)(f) Public Admin Act (active implementation)
VEOHRC: s 40 (intervention) and s 41 (monitoring)
Ombudsman:
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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))
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New, overarching principle of statutory interpretation: see,
Ghaidan v Goden-Mendoza [2004] AC 557
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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:
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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?
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… batteries are not included so…
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Onus on claimant to est on bal of Pr that
right subject to limitation/interference
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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:
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No discernable increase in volume, costs or
length of litigation
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Considered in 35% of House of Lords Cases
and ‘substantially affected result’ in about
10%
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Cases reached a ‘peak’ in 2001-02 and are
now about ½ that
Litigation: Lessons from
the UK
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HRA appears to have focused and stimulated
NGO and CLC litigation activity
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Reference to HRA by practitioners and judges
often cursory and unsophisticated, reflecting
need for more extensive and effective legal
professional and judicial education
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Enhanced dialogue between UK and other
human rights courts
Beyond litigation: Policy
and Service Delivery
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Improved legislative and executive transparency and
accountability
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Improved framework for design and delivery of public services.
Awareness-raising, education and capacity building around
human rights can empower people and result in:
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Better public service outcomes
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Improved levels of consumer satisfaction
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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
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Guide to the Charter
Searchable Database of Charter Case Law
Articles, Materials and Commentary
Monthly E-Bulletin
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www.justice.vic.gov.au
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Evans & Evans, Australian Bills of Rights: The Law of the
Victorian Charter and the ACT HRA (LexisNexis, 2008)
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Pound & Evans, An Annotated Guide to the Victorian
Charter of Human Rights and Responsibilities (Thomson,
2008)