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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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charter of human rights and responsibilities act 2006 vic better than a bunnings brochure

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
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
but wait there s more
But wait there’s 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
is this a case of false and misleading advertising
Is this a case of false and misleading advertising?
  • Let’s 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?
1 commencement
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
2 special features i the rights protected
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
but make sure you read the fine print
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 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
And the performance to date…
  • Consider:
    • Graffiti legislation
    • Superannuation and same sex entitlements
2 who must comply
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
obligations of public authorities
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
so what about the private sector
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
3 implementation mechanisms
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 he’s right we need to think laterally
consider the opportunities for litigation
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
consider the opportunities for advocacy
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
special focus the interpretative obligation
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))
consider examples
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
4 is it expensive to run
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)
so it is worth buying
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
litigation lessons from the uk
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
beyond litigation policy and service delivery
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’
key resources
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)
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