A DELICATE BALANCE: Is the Victorian Charter feeble and fragile, or ready to grow?

In the annals of public discussion and debate across Australia, seldom has an issue divided Australians - and Australian lawyers - more than the topic of the protection and promotion of fundamental human rights.

The division is not down the lines of those who believe human rights should be protected and those who do not, but rather, in terms of the method by which they should be safeguarded.

In 2006, Victoria took the bold step of being the first state in Australia to implement a comprehensive legislative document in which fundamental human rights and freedoms are enshrined (The ACT implemented a Human Rights Act in 2004).

The Charter of Human Rights and Responsibilities Act 2006 (the Charter) was hailed by supporters as a win for the marginalised and the fulfillment of a basic requirement of any developed democracy.

Detractors saw it as an unnecessary and divisive document which would open the floodgates of litigation, create a "lawyers' picnic" and undermine democracy by placing crucial decisions about human rights into the hands of unelected judges.

Earlier this year, the Scrutiny of Acts and Regulations Committee (SARC) commenced an official review of the Charter. Within a defined set of terms of reference, the Committee received 325 submissions and held five days of public hearings in which proponents and opponents of the Charter fervently expressed their views.

On 1 October this year, the Committee is due to release a report based on the evidence put before it and make recommendations to Victoria's Baillieu Government in regards to both its performance over the last four years, and also as to its future.

INTERACTIVE GRAPHIC: Click on the image below to see our infographic on Human Rights in Australia

Off the back of the Committee's report, the Government could take numerous courses of action, including strengthening the Charter by adding financial penalties and creating a stand alone right of action; paring it back so it applies only to parliamentary scrutiny; introducing guidance as to how it is to be implemented by government and public authorities; or repealing it altogether.

With a swathe of submissions calling for a weakening or repealing of the Charter in its current form, there is every possibility that this might happen, particularly given that the Baillieu Government has made no secret of the fact it has myriad problems with the Charter.

For proponents of the Charter, this would be a devastating blow and Australia would be the first democratic country in the world to implement and then repeal a human rights act.

All about the evidence

One of the state's most vocal supporters of the Charter has been Caroline Counsel, the president of the Law Institute of Victoria (LIV). Counsel openly admits she has a serious "divergence of opinion" with those who oppose the Charter and says that one simply has to look at the evidence to see that the Charter's naysayers are misguided.

"When I appeared before SARC, it was heartening to hear that a lot of the detractors simply stood up and said, 'This Charter should be abolished'. They had no evidence," she says. "We were the only body that I know of that conducted an audit [of 209 cases], and we were able to measure where the Charter had been invoked. We were able to dispel the myth that somehow this Charter was being abused or manipulated in the court process."

Of all the audited cases, Counsel says there was one which "leapt off the page" in terms of the level of human rights abuse and the way in which the Charter was used to rectify an absurd situation.

"A strong society that focuses on human and civil rights is not a scared society. My question is, 'What are we so afraid of that we cannot live with this Charter?'" Caroline Counsel, President of the Law Institute of Victoria

The case, says Counsel, involved four Indigenous siblings who were placed by a government authority into four, separate, non-Indigenous homes.

"The Charter was correctly invoked to ensure that another option was explored, and that other option was the grandmother of the four siblings," she says. "All four children were reunited and placed in her care. Bear in mind, we have just had a case in Victoria whereby the Government paid money in an out-of-court settlement when they realised that the Department of Human Services had failed in its duty to reunify an Indigenous man with his mother. So the Charter is good for government. It is a reminder for government to get things right."

It is this very point which Charter supporters say is at its heart: the legislation is not in place to provide an avenue for litigation, but is instead an instrument which guides government during the law-making process, and which directs public authorities when implementing that law.

"When the Charter first came into operation, there were lots of concerns about, for example, the Charter being a 'lawyers' picnic' and that there would be a massive tsunami of litigation. That is simply not borne out by the evidence," says Ben Schokman, a senior associate with DLA Piper seconded to the Human Rights Law Centre (HRLC) in Melbourne.

"We know that in actual fact there has been a paucity of human rights cases considered by the courts. The very real impact of the Charter has been at the front end of service delivery and decision making."

According to Counsel, the audit of the 209 cases was a very real reminder that this is where the Charter needs to be most effective.

"The Charter provides an overarching framework of reference for the Government to remind itself, when it is formulating legislation, of human rights."

Judging the judges

For all its supporters, the Charter has just as many detractors. Amongst them are Deakin University Professor Mirko Bagaric and well-known barrister and political commentator Peter Faris QC.

Bagaric and Faris made a combined submission to SARC, in which they said there was "no evidence" to suggest that the Charter had any positive impact on public authorities incorporating human rights into their decision-making process.

"There is no evidence to support this," they said. "Aspirational phrases of the type found in the Charter cannot drive outcomes. More likely, they are used by people to mask their pre-determined decisions in a moral language - thereby discouraging inquiry and challenge."

They also critiqued the Charter for the responsibility it confers on the judiciary.

"The process of demarcating the scope and application of rights requires a rigorous analysis of the relevant cause and effect systems operating in the community against a backdrop of desirable moral outcomes," they said. "Judges are not trained to undertake this process and do not have the resources and information necessary to accomplish the task. The process of conferring and protecting rights is innately a role for Parliament."

"When the Charter first came into operation, there were lots of concerns about the Charter being a 'lawyers' picnic' and that there would be a massive tsunami of litigation. That is simply not borne out by the evidence" Ben Schokman, senior associate, DLA Piper and Human Rights Law Centre

Melbourne barrister Joseph Santamaria QC also questions the role of the judiciary which is inherent in the Charter, and says it has the ability to undermine what is presently considered to be an independent body.

"My principal criticism of the Charter is that, by requiring judges to determine questions of public policy, it has the tendency to cause damage to the reputation of courts as being impartial and independent in the administration of justice," he says.

According to Counsel, however, the Charter's effect has never been to impede the supremacy of government when it comes to human rights - and that is something she says the LIV was able to show within their submission to SARC.

"We made it very clear that government remains supreme," she says. "Government is the one which dictates to the court what the law does and how laws are to be enacted. The implementation and decision-making process at the coalface, of course, is up to the individual member of the judiciary. But ultimately, it does not diminish government's power. It simply creates a framework in which government then works that reminds government of those basic human rights."

If it isn't broken

Another high-profile opponent of the Charter is Sir James Gobbo, the former Governor of Victoria, who argued in his submission to SARC that proponents of a human rights charter "seldom list examples of injustice or unanswered complaints which demonstrate the need for a charter".

Gobbo also referred to a speech given by Attorney-General Rob Hulls in April 2009, when he said there was no right in the Charter which was new or not already found in existing law.

"Assuming this is so, why not enforce the existing law rather than creating a new and somewhat vague one?" asked Gobbo in his submission.

"It is absurd to set up a widely-phrased Human Rights Charter suggesting to the public at large that it is a panacea for all ills or unfairness."

Robin Banks, the Tasmanian anti-discrimination commissioner, says the lack of a perceived need for a human rights charter has been a recurring theme in public consultations regarding a Tasmanian charter.

"Most of us don't see the reasons for doing things differently unless we know there is a problem. Unless there are complaints, people won't see that there is a problem," she says.

"They'll ask, 'Why are we protecting human rights? Is there really a problem that needs to be fixed?'"

As such, Banks says that with any charter to be implemented in Tasmania, it would be useful to have a mechanism - such as an easily accessible and visible complaints process - which identifies where exactly there are problems.

"I do think it is important ... that there is a process which allows people to understand that this is something worth doing," she says. "You won't get that unless the community is engaged."

Banks is at the forefront of ongoing debate about the implementation of a charter in Tasmania, and says she is keeping a very close eye on what is happening in Victoria.

While she admits that the current Victorian model is flawed, she adds that the possibility of a watering-down or repeal of the Victorian Charter would do great damage to the charter movement in Tasmania.

"It is absurd to set up a widely-phrased Human Rights Charter suggesting to the public at large that it is a panacea for all ills or unfairness" Sir James Gobbo, former Governor of Victoria

To Banks, though, the Victorian Charter is an incredibly positive legacy of the former Labor Government and she applauds the courage shown in taking up the issue.

"It's not an easy [decision], for some reason," she says. "I do have days where I puzzle over why it's not an easy one, because the idea of fundamental rights shouldn't be all that tough."

Give the tiger teeth

Even though Counsel, Schokman and Banks are all in favour of the Charter, they all admit that in its current form, it is not living up to expectations.

It "needs teeth", they say, and the introduction of a distinct right of action under the Charter - as opposed to one which must be "piggybacked" by another cause of action - is a modification crucial to its efficacy.

"Currently, the legal proceedings provision under the Charter is unnecessarily complex and convoluted," says Schokman. He would also like to see the addition of social and economic rights, such as the right to housing and education, while the LIV is advocating for monetary remedies for those aggrieved under the Charter.

Another shortcoming, says Schokman, is the lack of education and knowledge around the Charter's role and purpose.

"While there have been some good steps made around education about the Victorian Charter, a lot more needs to be done [in regards to] what the Charter actually means and how it operates," he says.

For Counsel, the overarching message is that if Victoria is to retain the Charter, it absolutely must be strengthened if it is to be useful.

"Our fervent wish is that the Charter be strengthened," she says. "If you have a government that is brave enough to have introduced it - and admittedly that was under the [previous Labour government] - and you have a Liberal Government that says, on consideration of all things put before it, it is not a bad thing to have, our challenge to them is to give it teeth and actually make it mean something at the implementation stage."

One step forward, two steps back?

While there has been months of speculation in the media about the outcome of the review and the Government's impending action, Counsel says it is difficult to predict. She adds, though, that it would be disastrous if the Government eventually decided to weaken or repeal the Charter.

"To me, the thought of having a Charter and then having it repealed is a retrograde step," she says. "A strong society that focuses on human and civil rights is not a scared society. My question is, 'What are we so afraid of that we cannot live with this Charter?'"

Schokman agrees, and says that any such move would not only affect those whose rights need protecting the most, but also do significant damage to Australia's already battered human rights reputation on the world stage.

"[Implementing a charter] is not an easy decision, for some reason. I do have days where I puzzle over why it's not an easy one, because the idea of fundamental rights shouldn't be all that tough" Robin Banks, Tasmanian Anti-Discrimination Commissioner

"One of the things that Australia - as an affluent, modern society - needs to consider is that when it comes to our interaction on an international stage, human rights are at the forefront of what we expect of other countries," he says. "It is inconsistent of Australia, on the one hand, to advocate for human rights to be protected in Sri Lanka, Iraq or Afghanistan and, on the other hand, not to have our own house in order when it comes to the protection of fundamental human rights."

For opponents like Santamaria, though, it is not so much a question of fear or reputation as one of questioning the Charter's utility.

"There are several obscurities about the Charter," he says. "It subjects all of the rights it recognises, which include many rights long since recognised by the common law, to an overarching limitation ... The Charter has the tendency to undermine the administration of justice by putting at risk the reputation of the judiciary for independence and partiality ... The Charter should be repealed. [It] is not necessary for the protection of fundamental rights and freedoms in Victoria."

For all those who made submissions to SARC, the next few months will no doubt be an anxious wait, though Counsel, for one, is hopeful that the review will have a desirable outcome.

"If [the Government] has heard, and if they have taken on board the learning that was available in those submissions to SARC and in the conversations that we were able to have with SARC, I am hopeful that the Charter is not considered to be the repository of all evil, but is in fact a beacon, a cauldron of light shining hope for all Victorians that we have a stable government that is not afraid of putting human rights at the centre of the conversation," she says.

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