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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 j.tobin@unimelb.edu.au 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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  1. Charter of Human Rights and Responsibilities Act 2006 (Vic) – Better than a Bunnings Brochure? John Tobin Melbourne Law School j.tobin@unimelb.edu.au 8344 7679

  2. 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

  3. 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

  4. 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?

  5. 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

  6. 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

  7. 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)

  8. And the performance to date… • Consider: • Graffiti legislation • Superannuation and same sex entitlements

  9. 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

  10. 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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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))

  16. 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

  17. 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)

  18. 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

  19. 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

  20. 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’

  21. 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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