Simon Evans and Carolyn Evans look at the issues facing a new committee.
Australian political history is littered with unsuccessful attempts to pass broad ranging human rights Acts. The recent passage of the ACT Human Rights Act contrasts with, for example, the failed attempts of Dr Evatt in the 1940s, Senators Murphy and Evans in the 1970s and 1980s and the Carr government’s rebuff to the NSW Parliamentary Inquiry into a NSW Bill of Rights.
Victorian Attorney-General Rob Hulls is the latest to venture into the rights arena. He has appointed a committee to consult with the community and to submit a report on how best to preserve and protect human rights in Victoria. The committee will be chaired by Professor George Williams, who will be joined by OurCommunity founder Rhonda Galbally, former Attorney-General Haddon Storey QC and basketballer Andrew Gaze. It will be guided by a statement of intent published by the Attorney-General, in which the Victorian government sets out a broad framework within which it wants the committee’s consultations to proceed.
Which rights to protect?
The statement of intent asks the committee to focus on the civil and political rights found in the International Covenant on Civil and Political Rights (ICCPR) (91) which are ‘often taken for granted but are not clearly expressed or fully protected’ by Victorian law. The ICCPR is an international treaty which 152 nations, including Australia, have ratified. In ratifying the ICCPR Australia has undertaken to ‘respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind’. These rights include the right to life; to be free from torture or cruel, inhuman or degrading treatment or punishment; to be free from slavery; to liberty and security; to be free from arbitrary detention; to free movement; equality before the law; to freedom from arbitrary interference with privacy or family; freedom of religion; freedom of belief; and freedom of expression. These rights form the core of the New Zealand Bill of Rights and the ACT Human Rights Act. Although they are widely accepted, some aspects are likely to prove controversial in the committee’s consultations. These include:
• To whom does the right to life apply? (The ACT Human Rights Act defines it to apply from birth onwards.)
• Should property rights be protected? (They are not mentioned directly in the ICCPR although they are mentioned in the Universal Declaration of Human Rights. (25))
• Should corporations’ rights be protected? (The ICCPR refers to individuals and peoples.)
• How should the rights of Victoria’s indigenous peoples be recognised? (The ICCPR includes to the right to self-determination by virtue of which peoples may ‘determine their political status and freely pursue their economic, social and cultural development’. How should that right be given effect in a federal system?)
• Are the existing protections against religious vilification that proved so controversial in the Catch the Fire Ministries case consistent with the ICCPR? (The ICCPR states: ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’)
The statement of intent makes clear the government’s reticence about incorporating broader social and cultural rights like those found in the International Covenant on Economic, Social and Cultural Rights (ICESCR) (12). The ICESCR commits Australia to ‘take steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognised in the present Covenant by all appropriate means’. The rights recognised in the ICESCR include rights to just and favourable conditions of work; adequate food, clothing and housing; education; the highest attainable standard of physical and mental health; the formation of trade unions; the participation in cultural life; and the enjoyment of the benefits of scientific progress. The statement of intent indicates that these rights ‘raise difficult issues of resource allocation’ and often ‘deal with responsibilities that are shared between the State and Commonwealth governments’. These rights, whose content is more likely to attract more controversy than political rights already ‘taken for granted’, are regarded by the government as more appropriately dealt with by the parliament, where ‘social and fiscal policy are scrutinised and debated’, than in the courts. Whether a bill of rights which only addresses ‘issues of inequality and disadvantage’ in the context of the justice system and which only advances cultural and economic rights indirectly can be seen as an effective and meaningful measure for protecting human rights in Victoria is a key question the committee will need to address.
The statement of intent asks the committee not to consider specific international treaties such as the Convention on the Elimination of all forms of Discrimination Against Women because they are already implemented through antidiscrimination legislation. The committee should consider how far to take this directive. There are significant rights-protecting treaties that are not broadly implemented in Victorian law, including the Convention on the Rights of the Child (10).
How to protect rights?
The government stresses that the focus should be on ‘mechanisms that promote dialogue, education, discussion and good practice rather than litigation’. The committee may therefore start by considering whether there should be a Victorian Human Rights Commission with responsibility for human rights education, investigation and conciliation of complaints, building on the role of the existing Equal Opportunity Commission. Other mechanisms that the committee identifies as desirable, perhaps including a bill of rights, are not likely to prosper unless there is an established culture of rights - a culture in which it is accepted by the community and its political representatives that some interests of individuals and groups deserve special protection and should not be subject to the horse-trading and compromise of daily politics.
The statement of intent makes clear the government’s view that, if a bill of rights is adopted in Victoria as an appropriate mechanism for protecting human rights, it must not compromise parliamentary sovereignty - the idea that the parliament, as a representative democratic institution, should be responsible for the ultimate political decisions about rights rather than the courts. (Equally, according to the statement, a Victorian bill of rights should not invest individuals with new causes of action to seek legal remedies for alleged human rights violations.) This means that any Victorian bill of rights would not be like the US bill of rights where the courts have the final word on whether legislation is compatible with rights. The government appears to have in mind the UK, New Zealand and ACT models, where the courts are instructed to interpret laws in a way that is consistent with human rights if they possibly can do so. If they cannot, they only have the power to declare that laws are incompatible with human rights - they cannot strike down the laws - and it is up to the parliament to decide whether or not they agree with the courts’ determination and whether or not to amend the laws to make them compatible with human rights.
Another option that the committee may consider, although it is not mentioned in the statement of intent, is the Canadian model where the courts can strike down laws but where the parliament retains the power to override the courts’ determination. Although in principle this gives the final word to the parliament, the override power has been rarely used in practice. It is controversial whether this reflects an undesirable automatic deference to the courts’ decisions on questions about rights or a series of deliberate decisions made by parliaments that the determinations given by the courts on these questions should stand.
The choice between these models - and indeed if any of them is necessary at all - depends in part on a judgement about the effectiveness of the parliamentary mechanisms for identifying and dealing with legislation that violates human rights. (That question is the subject of our ongoing research.) Regardless of which model is chosen, it is important that a Victorian bill of rights build on the UK, New Zealand and ACT models and include some scrutiny mechanism for ensuring that legislative proposals are consistent with human rights requirements before they are debated in parliament. It is better that legislation that violates human rights are never passed, even if redress can be obtained from the courts subsequently. Under the UK, New Zealand and ACT models, government departments and ministers first certify whether legislative proposals are consistent with rights and a parliamentary committee then scrutinises proposals against the applicable list of rights. The consultative committee may want to consider whether an independent agency should be given the initial certification role (and the equally important role of educating government departments about human rights) and what improvements might be made to the operation of the existing parliamentary scrutiny committee (that may be as simple as listing in a statute the specific rights that the committee should take into account).
A bill of rights for Victoria?
The Attorney-General has asked the committee to report by the end of November. It has a large task ahead of it. The broad questions that we have identified here are complex enough. It will face a myriad technical issues as well.
The key lesson learnt from the ACT experience seems to have been the importance of community consultation and the need for broad community support for any move to enhance the protection of human rights. The committee should support attempts to educate the community about human rights in general and the advantages and disadvantages of bills of rights in particular. It should seek out as wide a spectrum of opinions as possible. It should take into account the experience under other bills of rights.
Ultimately however it should make a recommendation for Victoria that promotes human rights most effectively in the context of Victorian conditions and institutions.