Queensland on high alert as human rights bandwagon starts to roll … Eight year review of Vic’s Charter of Rights calls for more teeth, less gum
The conference also passed a motion from Peter Russo MP, unopposed that, “calls on the Palaszczuk government to conduct a parliamentary inquiry and to introduce a charter of human rights and responsibilities as a matter of priority”.
A fortnight later there was a packed meeting at parliament house attended by deputy premier Jackie Trad and attorney general Yvette D’Ath, where it was announced that a parliamentary committee would get cracking on a human rights project for Queenslanders.
Last time we checked, the terms of reference were still being discussed. The idea is that to get this proposal into law there first of all needs to be tons of community consultation.
No doubt Prof Jim Allan will be consulted. He’s a Canadian who blew into Qld foaming and frothing about the need for more “originalist” judges and the evils of human rights legislation.
His views are, as they say, way out there. However, the general tide has turned on this topic as a result of the activities of the sledge hammer Newman government and its boy attorney general, Jiving Jarrod Bleijie.
They exercised power so crudely and trampled on human rights and the rule of law so clumsily that a shift to a protecting rights was inevitable.
A thuggish conservative agenda, where the winner took all, now has had the effect of seeding a human rights groundswell.
Public authorities would have to respect, protect and promote human rights under reforms suggested for Victoria’s Charter of Human Rights.
And that includes the corruption-busters.
A review suggests the Victorian Ombudsman, the Independent Broad-based Anti-Corruption Commission, and other relevant oversight bodies be given the power to request the Victorian Equal Opportunity and Human Rights Commission to help them with human rights issues when they exercise their statutory powers.
The question of where human rights begin and end when it comes to corruption fighting is a testing issue.
The former chief of the Law Institute of Victoria, Michael Brett Young was commissioned by Vic AG Martin Pakula to do a review of the eight years the Charter of Human Rights and Responsibilities Act has been operating.
He came up with a swag load of recommendations – 52 in all, including giving the Charter more bite by enabling someone who claims a public authority has acted incompatibly with their human rights, in breach of section 38 of the Charter, to either apply to the Victorian Civil and Administrative Tribunal for a remedy, or rely on the Charter in any legal proceedings.
The amendment should be modelled on s.40C of the Human Rights Act 2004 (ACT).
The tribunal’s jurisdiction to determine whether a public authority has breached the Charter should be similar to its jurisdiction in relation to unlawful discrimination under the Equal Opportunity Act 2010 (Vic).
If the tribunal finds that a public authority has acted incompatibly with a Charter right, it should have power to grant any relief or remedy that it considers just and appropriate, excluding the power to award damages.
What’s more, if the Charter is raised in another legal proceeding, the court or tribunal should retain the ability to make an order, or grant a relief or remedy, within its powers in relation to that proceeding.
A person is not entitled to be awarded any damages because of a breach of the Charter.
Brett Young says:
“Without a clear way to remedy a breach of someone’s human rights, the regulatory model for the charter will continue to be flawed. The likelihood of consequences drives change in behaviour …”
He suggests amending the Charter to make it clear that a person who claims that a decision of a public authority is incompatible with human rights, or was made without proper consideration of relevant human rights, can seek judicial review of that decision on the ground that the decision is unlawful, without having to seek review on any other ground.
The eight-year review also recommends the development of a national human rights scheme.
“Alternatively, the national scheme should incorporate human rights protections equivalent to, or stronger than, the Charter.”
The Charter itself is an odd beast, somewhat pious and with little force. It says it works to protect human rights in three main ways:
- Public authorities in state and local government must act in ways that are compatible with human rights;
- Human rights must be taken into account when developing new laws;
- People and public institutions, including the courts, must interpret and apply all laws in a way that is compatible with human rights, as far as possible.
Currently, the human rights regime in Victoria is a bit airy-fairy. The Act seems to be more a “guide” than anything else. Now Brett Young says some bite should be put into those rheumy old gums.
Brett Young’s report notes that, for instance, a private company managing a Victorian prison has human rights obligations – a surprise to many.
And every new Bill introduced into parliament is accompanied by a statement of compatibility and all new regulations must have a human rights certificate.
But the Charter does not prevent Parliament passing laws incompatible with human rights. And it does not override other legislation or allow the courts to strike down legislation that is incompatible with human rights.
“Courts must try to interpret laws in a way that is compatible with human rights, but they cannot go against the purpose of a legislative provision to make it compatible with human rights. Instead, the Charter promotes human rights compatible laws by making sure that human rights are taken into account in the legislative process. It sets up a mechanism for the Supreme Court to notify the government and parliament if it considers a law cannot be interpreted compatibly with human rights.”
Other recommendations include: