The report recommends a fundamental - and in my opinion, deleterious - winding back of the Charter.
The Committee's terms of reference were to -
inquire into and report by 1 October 2011 on the first four years of operation of the Charter of Human Rights and Responsibilities Act 2006, including:The Chair's summarises the response to those Terms as follows -1. the matters referred to in s 44(2) of the Charter Act
2. the effects of the Charter Act ona) the development and drafting of statutory provisions3. the overall benefits and costs of the Charter Act; and
b) the consideration of statutory provisions by Parliament
c) the provision of services, and the performance of other functions, by public authorities
d) litigation and the roles and functioning of courts and tribunals
e) the availability to Victorians of accessible, just and timely remedies for infringements of rights
4. options for reform or improvement of the regime for protecting and upholding rights and responsibilities in Victoria.
1. Section 44 (2) of the Charter requires the consideration of the expansion of the Charter rights and how, with their Charter obligations and tested and enforced.Sarah Joseph, Julie Debeljak & Adam Fletcher of the Castan Centre offered the cogent comment that -
SARC finds that the case for adding new categories of rights, reviews and proceedings to the existing Charter has not been made.
2. The impact of the Charter on the development of legislation, Parliament, public authorities, courts and tribunals and remedies.
Various recommendations are made to address the problems identified pursuant to this term of reference, such as; the redrafting of the provisions on reasonable limits and obligations of public authorities in plain, localised language, reconsideration and revision of the interpretation provision to preserve traditional interpretation methods and the primacy of the purpose of statutory provisions, replacement of the complex definition of public authorities with a clear statutory list of each body and function, transfer of the Supreme Court’s role in making declarations of inconsistent interpretation to an independent non-judicial body reporting to a Parliamentary Committee, and express identification of specific remedies (if any) to be made available for breaches of the provisions for obligations of public authorities.
3. The overall costs and benefits of the Charter.
The difficulty in identifying costs and benefits, as noted in numerous submissions, was demonstrated by the Government submission which detailed costs of $13,488,750. This figure captured part of the total direct costs to date and did not include indirect costs. As a consequence, SARC was unable to make any specific conclusions about the costs and benefits of the Charter.
4. Options for reform or improvement of the regime for protecting and upholding rights and responsibilities in Victoria.
Having made recommendations pursuant to the above terms of reference, SARC presents for consideration two options for reform and improvement of the human rights regime in Victoria.
Option 1, preferred by the minority, retains the current Charter framework with the significant reforms and simplification recommended in chapters 3, 4 and 5.
Option 2, preferred by the majority, retains the provisions for scrutiny of new law while removing the obligations of public authorities and returning the courts and tribunals to their traditional role. These changes create flexibility and enable the consideration of additional rights and new forms of dispute resolution with the prospect of justiciability removed.
In essence, the majority of the Committee recommends stripping most of the operative provisions from the Charter, leaving only the Executive and Parliamentary scrutiny functions. The whole point of a Charter or Bill of Rights is to improve transparency and accountability regarding the human rights impact of government actions. The Committee’s proposal would remove layers of accountability for the Executive, Parliament and public authorities in Victoria, sending the message that the Charter is not to be taken seriously.They conclude that -
The Committee’s recommendation (Recommendation 35) to remove the judiciary’s independent oversight role is regrettable. For the Executive and Parliament to commit to a statement of fundamental rights, but to deny independent scrutiny of their actions, risks rendering the document pointless. A key reason to protect human rights is to ensure that minorities, the unpopular, and the vulnerable can be heard, and the majoritarian-driven executive and parliament cannot guarantee this. Moreover, the judiciary is not supreme under the current Charter: the Parliament can override its decisions and, in the case of a Declaration of Inconsistent Interpretation, ignore them.
The proposal, again in Recommendation 35, to remove all obligations on public authorities in s.38 and to repeal the (already weak) cause of action in s.39 further neuters the incentive for the rights-respecting administration of government. The protection of rights is largely about protecting the individual against unjustified government decision making. If the State has no human rights obligations when making decisions that impact on the individual, what is the point of having rights?
All in all, the Committee appears to want to go back to the days when Victorians had very little legal redress with regard to human rights abuses. As it stands, the Charter does not allow the Courts to overrule Parliament, nor does it allow individuals to institute civil proceedings for a breach of their human rights. What it does do is provide an extra layer of transparency and accountability in the hope that this will encourage the Government to act consistently with human rights. Yet the Committee recommends that the Government reduce this relatively low level of independent scrutiny, and reduce the obligations and independent scrutiny of public authorities; any reasonable person must question its motives.