Improving the operation of the Charter

Some key human rights that are important to Victorians are not currently protected by the Charter

While the Charter protects 20 essential rights, there are core economic and social rights – such as the rights to health, housing, a healthy environment and education that are fundamental of people’s everyday lives – are not yet included.

Although many of these rights are already recognised in Victorian law, they are not always clear or enforceable.

Victorians don’t have a simple and effective avenue to make human rights complaints

Currently there is no single body that can receive complaints about allegations of a human rights breach against all public authorities as defined in the Charter. Instead, Victorians must navigate a ‘patchwork’ of options for dealing with alleged human rights breaches.

Victorians can only pursue a legal remedy for a breach of the Charter if they have another claim

The Charter does not allow a person to bring an independent action against a public authority for a breach. Instead, a person can only raise the Charter by joining or ‘piggy backing’ a claim to separate proceedings against a public authority.

Significant resources including legal costs, court time and scarce pro bono resources are spent on resolving preliminary jurisdictional questions, rather than focusing on the real issue in dispute – whether a public authority has breached a person’s human rights.

Victorians are not entitled to compensation for breaches of the Charter

This is despite the fact that human rights breaches can have significant impacts and Victorians can seek damages for other common causes of action, such as discrimination law, tenancy and employment jurisdictions.

The lack of clear, accessible and enforceable remedies under the Charter creates little incentive for public authorities to comply as there are no obvious consequences for a breach.

The Charter sits at the heart of the Victorian legal landscape and provides Victorians with an important tool to question and challenge government policy, law and decisions. However, Victoria, once the trailblazer in recognising and promoting human rights, is now falling behind – Charter reform is long overdue.

There have been two statutory reviews of the Charter that have made thoughtful recommendations. The ACT and Queensland have incorporated many of these recommendations into their equivalent laws, and a federal parliamentary committee has recommended a national Human Rights Act reflecting many of the same reforms.

There are some key reforms that would align the Charter with these developments and would have a real-world impact on the lives of people in Victoria today, including:

• New rights – adding economic and social rights to housing, the right to education, the right to health, and the right to a healthy environment
• Participation duties – adding a right for children and people with disability to participate and to be consulted to ensure young people and people with disabilities have a say in decisions that impact their lives
• Stand-alone causes of action – allowing people to challenge a breach of their human rights the way they can challenge any other government decision
• Remedies and compensation – giving courts and tribunals the power to order effective remedies for breaches of rights, including damages where nothing else will repair the harm
• Dispute resolution – allowing people to bring human rights complaints to our Commission for fast, free, informal resolution
• Representative complaints – making it possible for representative complaints to be brought about Charter rights
• Costs – creating an equal access costs model so applicants aren’t punished for raising human rights complaints in court
• Removing overrides – removing the power of Parliament to override the Charter
• Simplifying interpretation – clarifying how courts and tribunals interpret other laws in relation to Charter rights, increasing confidence and creating more rights-respecting laws for all.

Since the Charter was introduced, the Victorian community has changed but the law has stood still. Through these measures, the Charter can remain fit for modern-day Victoria.

These reforms are set out in more detail in the Commission’s Charter reform discussion paper: Charter reform discussion paper: Ensuring our human rights laws are fit for modern-day Victoria  | Victorian Equal Opportunity and Human Rights Commission