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

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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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