Charter and Parliament
The Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) is an Act of Parliament. The Charter does not automatically override other laws, but laws created in Victoria must take the Charter into consideration.
How is the Charter used in Parliament?
When Parliament enacted the Charter in 2008, it meant that any future laws created would have to consider the human rights values set out in the Charter.
When a new Bill (proposed law) is introduced, these steps are followed:
- Members of Parliament introducing Bills (proposed laws) are required to prepare and table in Parliament a statement of compatibility explaining the impact of the Bill on the human rights of Victorians.
- A Parliamentary Committee, the Scrutiny of Acts and Regulations Committee (SARC) reviews the Bill.
- SARC reports to Parliament on their assessment of the human rights issues involved and whether the Bill trespasses on rights and freedoms.
Organisations and the general public can make their own submissions on a Bill to SARC when they are in the process of reviewing the law.
- ensure that Parliament has considered whether a Bill is compatible with human rights and if any proposed limitations on rights and reasonable and proportionate
- help Parliament hold the government accountable for its consideration of human rights during the development of new laws
- send a message to the community and the courts about Parliament’s intention to ensure robust scrutiny about human rights and any limitations of human rights, and
- enhance the transparency of the work of government and Parliament by putting human rights considerations on the public record (through Hansard).
What is a statement of compatibility?
The Charter requires a Member introducing a Bill into Parliament to provide a statement of compatibility on the Bill. This means that members of Parliament can be made aware about the human rights implications of proposed laws.
A statement of compatibility must describe the rights raised by the Bill, whether it is compatible with the Charter and any part of the Bill that may be incompatible.
Having this requirement makes Ministers and members of Parliament:
- consider human rights when it is developing new laws
- explain to Parliament and the community when it wants to limit people’s human rights and why.
Why does the Scrutiny of Acts and Regulations Committee (SARC) need to review the law?
The Scrutiny of Acts and Regulations Committee (SARC) is a Parliamentary Committee that reviews any new Bill and reports to Parliament on whether it is compatible with Charter rights. SARC does this by publishing a report on a Bill that is circulated to members of Parliament to assist them understand the human rights implications of proposed laws being debated. Sometimes SARC will invite organisations to make submissions on legislation raising substantial human rights issues. This occurred during the COVID-19 pandemic when SARC invited submissions to be made on the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020.
SARC process can provide robust assessment of the human rights impacts of proposed laws. This is also called ‘parliamentary scrutiny’.
When it operates well, parliamentary scrutiny can improve the law-making process by focusing consideration on how best to achieve the government’s policy goals while encouraging the Government to adopt the least rights restrictive approach.
What is parliamentary debate?
Parliamentary scrutiny also helps to inform parliamentary debate. A large number of Bills over the years have generated parliamentary debate or comment on human rights issues.
- In 2019, the Government passed the Births, Deaths and Marriages Registration Act 1996, which will greatly assist trans and gender diverse Victorians to live their true identity. Parliament actively contemplated Charter rights – supporters and opponents of the Bill raised Charter rights during Parliamentary debate. Those in support argued that the reforms promote the human rights of trans and gender diverse Victorians, including the right to equality, the protection of families and children and the right to privacy, for example by not inappropriately medicalising a person’s sex or gender identity. Those in opposition argued that the Bill risks infringing the rights of women, for example by increasing the risk of women being harassed in women-only spaces.
- In 2017, Victoria became the first Australian state to legislate voluntary assisted dying in the Voluntary Assisted Dying Act 2017. Members in favour of the Bill argued that supporting voluntary assisted dying is a human rights issue – allowing people the choice to die with dignity, under the safest and most rigorous framework possible. Other members expressed reservations regarding safeguards surrounding the Bill and their concerns regarding whether the Bill limited the ‘right not to be arbitrarily deprived of life.
How can the charter influence law reform?
The Charter provides a mechanism for Members of Parliament and the community to consider the human rights implications of new laws, and can assist in positive law reform. Under the Charter, all Bills introduced into parliament must be accompanied by a statement outlining the Bill’s compatibility with human rights. The parliamentary Scrutiny of Acts and Regulations Committee (SARC) is also tasked with considering all Bills and reporting to parliament on whether the Bill is compatible with human rights.
For example, in 2020, public debate about the human rights implications of proposed new laws to deal with the COVID-19 pandemic resulted in more balanced and rights-respecting laws. The most significant amendments to laws occurred when government sought to expand and extend the operation of emergency powers in August 2020. At first instance, the Bill sought a 12-month extension to the use of emergency powers and to expand the pool of authorised officers, giving them new powers to pre-emptively detain people. After significant public debate and concern about the human rights implications of these provisions, the law was passed in an amended form that reflected a more proportionate limitation of Charter rights, including:
- a limited extension of the State of Emergency, with greater transparency of executive decision-making and added safeguards
- the proposed new powers to allow authorised officers to pre-emptively detain people being removed from the Bill
- a reduction in the proposed pool of people who could be appointed as authorised officers (and therefore exercise emergency powers) under the Public Health and Wellbeing Act 2008 (PWHA).
These amendments have resulted in more rights-compatible outcomes, while still achieving the primary purpose of the Bill.