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Improving the operation of the Charter

Our vision: For the fundamental human rights of all Victorians to be protected by a robust, effective and well-utilised Charter that reflects domestic and international human rights developments

The problem

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

While the Charter protects 20 essential rights, core economic and social rights – such as the rights to health, housing and education that ‘touch the substance 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. For example, the objectives of the Health Services Act 1988 (Vic) include ensuring that ‘an adequate range of essential health services is available to all persons resident in Victoria irrespective of where they live or whatever their social or economic status’. However, as a statutory objective, this is not enforceable.

Expressly recognising economic and social rights in the Charter would strengthen and clarify these protections. It would fill the gaps in existing Victorian legislation and put human rights in one place, making them easier for the community to identify and use.

The Charter does not sufficiently recognise the rights of Aboriginal Victorians

Recognition in the law is important. The inclusion of Aboriginal cultural rights in the Charter was a significant step in 2006 when the Charter was enacted – but it is just one step in overcoming the legacy of colonisation and dispossession faced by First Nations peoples.

Including self-determination in the Charter would enable Victoria’s Aboriginal communities to meet their social, cultural and economic needs and participate in decisions that affect them.

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 human rights breaches if they have another claim

The Charter does not allow a person to bring an independent action against a public authority for a breach of the Charter. 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 when their human rights are breached

This is despite the fact that breaches of human rights can have significant impacts and Victorians can seek damages for a breach of 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 solution

The Charter is now at the heart of the Victorian legal landscape and has provided 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.

In March 2015, the Attorney-General appointed Michael Brett Young, former CEO of the Law Institute of Victoria, to conduct an eight-year review of the Charter. Tabled in September 2015, the 2015 review contained 52 legislative and policy recommendations to make the Charter more accessible, effective and practical. Many of these recommendations are still relevant but yet to be implemented.

There are several important reforms that would align the Charter with contemporary domestic and international human rights developments:

  • The Charter should recognise the ‘progressive realisation’ of the economic and social rights to health, housing and education. This approach recognises that fully achieving these rights will take time and will be dependent on the resources that government has available.
  • The Charter should include a standalone right to self-determination for Aboriginal Victorians, which will provide stronger legal recognition of the rights of Aboriginal Victorians that is consistent with international law.
  • The Charter should enable Victorians to attempt to resolve a human rights complaint through alternative dispute resolution. The Commission is well placed to fulfill this function, with the addition of additional resources. The model for resolving human rights complaints could be based on the Commission’s existing process for dispute resolution under the EOA, ensuring a process that is provided as early as possible, appropriate to the nature of the complaint and fair and voluntary.
  • In addition to making a complaint to the Commission, Victorians should also be able to lodge a Charter complaint with VCAT and seek redress from government when a public authority breaches their human rights in the same way they can if it discriminates against them in the provision of services or unfairly evicts them from housing.
  • A person should be able to bring a judicial review action for a breach of a Charter right, without having to seek review on any other ground.
  • A person should be able to seek compensation for breach of a Charter right when a court or tribunal determines that administrative action does not adequately address the harm the person has experienced.

Work we are doing

We made a submission to the Royal Commission into Victoria’s mental health system, in which we advocated for Charter reform including a right to health and a dispute resolution function.

We also produce annual reports on the operation of the Charter, which allows us to take stock of efforts to embed human rights in Victoria, monitor how decision makers use the Charter and advocate for reform.