this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

LIV Library & Bookshop are open.

Limited access and COVIDSafe rules apply. Click the link for essential information:

Find out more
Select from any of the filters or enter a search term
Calendar
Calendar

Charter of Human Rights: Reforming the Charter

Charter of Human Rights: Reforming the Charter

By Josh Andrews

Human Rights 

0 Comments


While the introduction of the Victorian Charter of Human Rights was an important step, it is clear reform is required.

Snapshot
  • The limited scope of claims and remedies available in the Charter can operate as a barrier to an individual accessing justice.
  • Legislative reform to the damages provisions and piggyback requirement would allow the Charter to achieve the values espoused in the document. 
  • The introduction of a dispute resolution framework would support these reforms and the efficient use of the courts. 

When proposing the framework for the Victorian Charter of Human Rights (Charter), the Victorian independent Human Rights Consultation Committee recommended limiting the scope of claims and remedies to preventing and mediating disputes.1 In achieving this, two key prohibitions were included in the Charter of Human Rights and Responsibilities Act 2006 – that an individual may not bring a standalone claim against a public authority for a breach (the piggyback requirement) and that damages or other forms of monetary compensation are not available.2

In place of damages, the Supreme Court was given powers to make decisions and declarations that a public authority has infringed on the rights outlined in the Charter and may require the authority to reconsider its decision or action on human rights grounds. 

While these provisions were presented as common-sense measures to curtail unnecessary litigation proceedings, they have led to suboptimal outcomes. 

The first issue is that the piggyback requirement has acted as a barrier to the public accessing justice. The provision means that in the event of a severe breach of a human right which has caused cruel outcomes, the individual may not bring a claim against the authority, unless that authority has acted in a separately unlawful way. 

This proposition that an unlawful act should not have an enforcement mechanism as it would encourage the use of the courts would be dismissed in criminal law, contract law or tort law as subverting justice. To adopt this position in human rights law implies that government authorities should not be held to the standard of every other actor in the Victorian legal system. 

The second issue is that these measures have impacted how both the community and public authorities interpret the document.3 For the community, the removal of the capacity to bring an independent claim and absence of damages sends the message that the Charter is merely an aspirational document. 

For public authorities which operate within compliance orientated regulatory designs, the lack of an enforcement mechanism renders human rights compliance a low priority in the creation of policy and procedure. Certainly, there is a substantial body of research that suggests legal obligations are far more effective when supported by a sanctions regime for non-compliance.

The third issue is that limitations of the piggyback requirement and the confusing language of the provision have resulted in an inefficient use of court resources, with counsel forced to argue weak claims and the courts required to resolve jurisdictional questions rather than the matter in dispute.5

It is clear that in the interests of providing access to justice and ensuring the efficient use of court resources, the piggyback requirement should be repealed and damages should be available to harmed plaintiffs. 

There are two key models which can be drawn on to reform the Charter. The first is the ACT’s Human Rights Act 2004 which provides that an individual may bring a claim in the ACT Supreme Court against a public authority relying on their rights in the Act.

The second is the UK’s Human Rights Act 1998 which gives effect to the European Convention on Human Rights, making it unlawful for a public authority to act incompatibly with a Convention right.7 In the event that an individual alleges that a public authority has acted unlawfully, that person may bring proceedings against the authority without a separate cause of action.8 When a breach has been determined, the court or tribunal may grant any remedy or relief within its powers that it considers just and appropriate.

With the capacity for damages, the UK Human Rights Act is the preferable model. This legislation also contains provisions which reduce the possibility of unnecessary litigation. First, the claim must be brought within one year,10 thereby mitigating the risk of frivolous claims being brought long after the event. Second, awards of damages are restricted to circumstances that it is necessary to afford just satisfaction to the person concerned.11 The result has been that damages have been awarded in a limited number of cases.12 

Counter to the concerns raised by the Human Rights Consultation Committee in 2005, there is no evidence that stand-alone human rights claims lead to increased rates of litigation. An example is that while there was a spike in litigation in the ACT in 2009, the year that the direct cause of action provision was introduced into the Act, litigation rates soon returned to previous levels.13 

Another factor in Victoria’s case is that any increase in litigation from introducing a direct cause of action provision will likely be offset by the reduction in unnecessary litigation which currently occurs due to the obscurity of the existing provisions. A comprehensive and clear remedies provision will enable parties to focus on practical outcomes rather than abstract legal disputes.14 

To support the efficient use of court resources, it would be pragmatic to introduce an appropriate dispute resolution function which does not currently exist.15 In place of a single body to deal with complaints, there is currently a patchwork of internal complaints mechanisms – the Victorian Ombudsman and the Independent Broad-based Anti-corruption Commission.16 Unlike the Equal Opportunity Act 2010 (Vic) which allows the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to hear and manage discrimination complaints, the Charter does not provide a role for the VEOHRC. 

The VEOHRC has proposed that it would be an appropriate body to take on this role.17 This would mirror the role that it has in discrimination complaints under the Equal Opportunity Act

These reforms have been discussed for years. In 2015, the Victorian government commissioned a review of the Charter to be undertaken by former LIV CEO Michael Brett Young which put forward 52 recommendations including the removal of the piggyback requirement and the introduction of an alternative dispute resolution function. While 46 of these recommendations were supported by the Victorian government, since 2015, no amendments have been made. 

In addition to supporting a number of the 2015 review recommendations, the VEOHRC has also recommended the progressive realisation of health, housing and education rights as well as the right to self-determination for Aboriginal Victorians.

Following a deep dive analysis of the Charter, the LIV YL Law Reform Committee has identified that in addition to the aforementioned reforms, the override provision and religious freedoms exemptions should be repealed.

The introduction of the Charter was an important step in Victoria prioritising human rights and defining the relationship between government and the people that it serves. Over time, though, it has become clear that limitations in the Act have undermined its purpose and diminished its impact. In order to bring the Charter into line with the values espoused in the document, the Victorian government should implement these reforms immediately. ■


Josh Andrews is co-chair of the LIV YL Law Reform Committee, a paralegal at Phi Finney McDonald and a third year JD student at Melbourne Law School.

The author wishes to thank the YL Law Reform Committee members who contributed to the review of the Charter of Rights and Responsibilities Act 2006 including Rose Barnsley, Ashley Blanch, Viktoria Chenkov, Adriana Chipman, Brendan Lacota, Aiofe McDonald, Maxim Oppy, Emily Peck, Benjamin Stern and Ryan Will.

  1. Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, September 2015, 119; Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic).
  2. Charter of Human Rights and Responsibilities Act 2006 (Vic) s39.
  3. Note 1 above, 127.
  4. Note 1 above, 86.
  5. Note 1 above, 12.
  6. Human Rights Act 2004 (ACT), s40(C)(2).
  7. Note 6 above, s6(1).
  8. Note 6 above, s7(1).
  9. Note 6 above s7(1).
  10. Note 6 above, s7(1)(a).
  11. Note 6 above, 8(1).
  12. Dobson v Thames Water Utilities [2009] EWCA 28 [41]-[46]; R (Faulkner) v Secretary of State for Justice [2013] 2 AC 254; [2013] UKSC 23.
  13. Note 1 above, 127; ACT Human Rights Commission, Look Who’s Talking: A Snapshot of Ten Years of Dialogue under the Human Rights Act 2004 (2014) 8–9.
  14. Note 1 above, 127.
  15. VEOHRC, Submission to the Royal Commission into Victoria’s Mental Health System, (July 2019), 23.
  16. Ombudsman Act 1973 (Vic), ss13(2) and 13(AA); Independent Broad-based Anti-corruption Commission Act 2011 (Vic), ss15(3)(iii), 51-52 and 64(2).
  17. Note 15 above, 23.

Views expressed on liv.asn.au (Website) are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV).

The information, including statements, opinions, documents and materials contained on the Website (Website Content) is for general information purposes only. The Website Content does not take into account your specific needs, objectives or circumstances, and it is not legal advice or services. Any reliance you place on the Website Content is at your own risk.

To the maximum extent permitted by law, the LIV excludes all liability for any loss or damage of any kind (including special, indirect or consequential loss and including loss of business profits) arising out of or in connection with the Website Content and the use or performance of the Website except to the extent that the loss or damage is directly caused by the LIV’s fraud or wilful misconduct.

Be the first to comment