Reform of the Charter

The four-year review was conducted in 2011 by the Scrutiny of Acts and Regulations Committee. We reported on this review in our 2012 Charter Report.

In March 2015, the Attorney-General appointed Michael Brett Young to conduct the eight-year review and, in September 2015, Mr Brett Young tabled the 2015 independent review of the Charter’s operation (the 2015 Review).

The findings of the 2015 Review indicated that the Charter has helped to build greater consideration and adherence to human rights principles within the Victorian public sector, Parliament and the courts in key areas.

However, the 2015 Review also found that initial efforts to embed the Charter in government processes and practices had waned in recent years, which had set back the development of a human rights culture in Victoria.

The 2015 Review contained 52 legislative and policy recommendations to make the Charter more accessible, effective and practical. These recommendations related to eight key policy areas, outlined below.

1. Building our human rights culture

The 2015 Review found that, for the Charter to be effective, the Victorian Government must prioritise work to build a stronger human rights culture, particularly in the Victorian public sector.

It found that Victoria needs a culture that makes human rights real in people’s everyday interaction with government, and that a strong human rights culture facilitates better government decision-making.

2. Clarifying responsibilities for human rights

The 2015 Review made a number of recommendations clarifying the role of public sector organisations, and their responsibilities in relation to protecting and promoting human rights.

These included recommendations to ensure greater certainty about who is a public authority, in order to help individuals be aware of their rights and entities be aware of their obligations.

3. The role of statutory authorities

The 2015 Review considered the roles of relevant statutory authorities under the Charter, including what is needed to build an effective regulatory framework. It set out recommendations to better facilitate compliance with the Charter, to support the resolution of issues when a member of the community is concerned government has not complied with the law, and to clarify oversight roles.

The 2015 Review found the Charter is missing key elements of an effective regulatory system. It recommended the Charter be enhanced to enable the Commission to offer dispute resolution under the Charter (as it does under the Equal Opportunity Act 2010 and the Racial and Religious Tolerance Act 2001).

4. Remedies and oversight – the role of the courts

The 2015 Review examined the role of the courts in determining whether a person’s human rights have been breached and in deciding what should happen if a breach has occurred.

The 2015 Review proposed a remedies provision modelled on section 40C of the Human Rights Act 2004 (ACT) to provide a clear framework to achieve these outcomes.

The proposed model would give community members access to dispute resolution at the Commission, and an avenue to have the Victorian Civil and Administrative Tribunal decide whether their rights have been breached. People could continue to raise the Charter in other legal proceedings where relevant. Government oversight bodies could continue to look at Charter issues that are relevant to their jurisdiction.

5. Interpreting and applying the law

The 2015 Review considered other issues that relate to the Charter’s operation, including some of the more technical legal debates about its operation.

It recommended the Charter require statutory provisions to be interpreted, as far as possible, in the way that is most compatible with human rights. When a choice must be made between possible meanings that are incompatible with human rights, the provision should be interpreted in the way that is least incompatible with human rights.

The Review noted the Attorney-General and the Commission play useful roles intervening in proceedings that raise the Charter.

6. More effective parliamentary scrutiny

The 2015 Review considered the role of human rights scrutiny in law making. It noted that parliamentary human rights scrutiny has had a positive impact on the human rights compatibility of new laws, but some small changes are needed to increase the robustness and transparency of this process.

The main criticism of the scrutiny process was the short timeframe within which the Committee must consider and report on Bills. This timeframe means that the public has little opportunity to make submissions on the human rights impacts of proposed legislation, and the Committee lacks the time and capacity to consider any submissions in detail.

7. Emerging issues

The 2015 Review examined other issues, including the application of the Charter to national schemes, the introduction of additional rights into the Charter and the definition of discrimination.

8. The need for a further review

The 2015 Review also recommended that the Charter be amended to require a further review.

In July 2016, the Victorian Government provided a response to the recommendations made in the 2015 Review. The government accepted in full or in principle 45 of the 52 recommendations.

The table available to download below provides a summary of the actions undertaken on all recommendations during 2017. It demonstrates that, while considerable work has begun on some recommendations, the majority of recommendations accepted by government are yet to progress.

The Commission will continue to track the implementation progress of all recommendations.

Over half of the recommendations that were supported by the Victorian Government require legislative amendment. The reforms recommended would greatly improve the operation of the Charter and the protections it offers all Victorians, and the Commission urges the progress of the necessary legislative changes.

There has been significant progress in implementing recommendations designed to build and strengthen a human rights culture in Victoria.

All members of the Victorian Secretaries Board issued statements to their organisations reiterating the importance of the Charter and encouraging them to seek Charter training to make human rights ‘part of the everyday business of government’.

In addition, the Department of Justice’s Human Rights Unit has worked with the Commission to establish the Charter Leaders Group, an inter-departmental executive sponsors group with a mandate to foster a human rights culture within the Victorian public sector.

A total of $1.8 million funding was made available to deliver human rights education for 18 months until 30 June 2018. The education program has been highly successful to date. Approximately 3000 officers across the public sector have received tailored human rights education and feedback has been overwhelmingly positive.

In addition, government departments and the Commission continue to highlight the importance of human rights through events and awareness-raising activities.

As the Table of Progress on recommendations illustrates, progress on implementing other key policy areas has been limited. The majority of recommendations that were supported by the government have yet to be completed. Numerous remain under consideration or pending.

Detailed information regarding the implementation of all recommendations from the 2015 Review can be found in the table. This information has been provided by the agency responsible for implementation.

The following organisations are referred to throughout the table:

• Department of Justice (DJR)
• DJR’s Human Rights Unit (HRU)
• Independent Broad-based Anti-corruption Commission (IBAC)
• Judicial College of Victoria (JCV)
• Victorian Civil and Administrative Tribunal (VCAT).