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14 March 2012
Government Response to Charter Act review tabled
On 14 March 2012 the Victorian Government tabled its response to the Scrutiny of Acts and Regulations Committee's Report of its review of the Charter Act in Parliament.
Some of the key elements of the response, as set out in the Executive Summary, include:
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- The Government is strongly committed to the principles of human rights protection and considers that legislative protection for those rights provides a tangible benefit to the Victorian Community. The Government considers that this review process provides an opportunity to improve protection for human rights and to make the operation of the Charter clearer, simpler and more accessible.
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- The Committee made a number of recommendations on improving and clarifying the operation of the Charter. The Government supports the majority of these reommendations on whole or in part. The Government will adopt recommendations to improve parliamentary scrutiny processes under the Charter, improve internal complaints processes, clarify the legal status of certain provisions and repeal the parliamentary override provision.
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- In relation to SARC's majority recommendation relating to the role of courts or tribunals and the obligations of public authorities, the Government is seeking further, specific legal advice before responding. The Government believes that there is an ongoing place for the courts in protecting rights in relation to the Charter but acknowledges the concerns raised by the SARC majority as to the role of courts and the obligations of public authorities. The issues raised by SARC on these particular questions have generated controversies that are best considered on the basis of clear evidence.
Read the full response here. Read the Government media release here.
29 February 2012
The Court of Appeal has handed down a judgment considering the right of access to legal aid as it relates to the right to a fair hearing under section 24 of the Charter Act, and the rights in criminal proceedings in s 25(2)(d) and (f) of the Charter Act. It was held the power conferred on VLA is discretionary and the Charter Act does not extend VLA's obligations. The decision also sets out the Court of Appeal's approach to the interpretation section in 32 of the Charter Act following the High Court decision in Momcilovic.
Read the judgment here.
11 January 2012
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The Supreme Court has overturned the decision of the Magistrates’ Court to jail Mr Zakaria Taha, an intellectually disabled man, under section 160(1) of the Infringements Act 2006 (the Act) for his failure to pay $11,000 in parking and public transport fines. Section 32 of the Charter Act was employed by Emerton J in her interpretation of section 160(1).
Read the judgment here.
25 November 2011
Passage of the Commonwealth Human Rights (Parliamentary Scrutiny) Bill 2010
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The Commonwealth Senate passed the Human Rights (Parliamentary Scrutiny) Bill 2010 on Friday 25 November.
The Bill introduces a requirement for Statements of Compatibility (SOCs) to accompany all new Commonwealth Bills and disallowable legislative instruments and establishes a new Parliamentary Joint Committee on Human Rights.
The Commonwealth SOCs will differ from those in Victoria. Notably, Commonwealth SOCs must contain an assessment of whether the Bill or legislative instrument is compatible with the rights and freedoms recognised in the seven core international human rights treaties which Australia has ratified. These treaties are:
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* International Covenant on Civil and Political Rights
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* International Covenant on Economic, Social and Cultural Rights
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* International Convention on the Elimination of All Forms of Racial Discrimination
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* Convention on the on the Elimination of All Forms of Discrimination against Women
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* Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
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* Convention on the Rights of the Child
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* Convention on the Rights of Persons with Disabilities
The obligation to table SOCs will commence 28 days after the Bill receives Royal Assent.
The Parliamentary Joint Committee on Human Rights will have functions to:
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* examine Bills for Acts and legislative instruments for compatibility with human rights;
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* examine Acts for compatibility with human rights; and
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* inquire into any matter relating to human rights which is referred to it by the Attorney-General.
The Committee is to report on each of these matters to both Houses of Parliament.
14 September 2011
SARC releases report on Charter Act review
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The Scrutiny of Acts and Regulations Committee has released the report of the Review of the Charter of Human Rights and Responsibilities Act 2006. The report makes 35 recommendations. The most significant recommendation, number 35, provides two options for reform of the regime for protecting and upholding human rights in Victoria:
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* option 1 (agreed to by a minority of the Committee) would retain all of Part 3 of the Charter Act, subject to modifications recommended elsewhere in the report
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* option 2 (agreed to by a majority of the Committee) would retain only the Parliamentary scrutiny parts of Part 3 of the Charter Act and remove court functions (such as interpretation and declarations of inconsistent interpretation) and public authority obligations under section 38.
The Premier issued a statement thanking the Committee for its work and indicating that the Government will respond within six months.
Read the report. Read the Premier's statement. Read the Victorian Government submission to SARC.
8 September 2011
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The High Court has handed down its first major decision on the Charter Act.
The judgment discussed a number of important Charter Act issues, including:
* the constitutional validity of section 32 of the Charter Act (a majority of the Court found it was constitutionally valid)
* the constitutional validity of section 36 of the Charter Act (a majority of the Court found it was constitutionally valid)
* the role of limitations of rights under s 7 of the Charter in the functions under sections 32 and 36 of the Charter Act
The reasons on many of these issues are lengthy and complex.
The Court also found that the relevant parts of the Victorian Drugs Act was not invalid under section 109 of the Constitution.
Read the judgment.
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6 September 2011
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The Court of Appeal has handed down an important judgment on the application of the Charter Act in VCAT in the context of decision-making about public housing.
The Court of Appeal, overturning Bell J's decision, found that:
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* The principal mechanism for challenging decisions of public authorities is through judicial review proceedings.
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* While Charter Act issues may arise for determination in VCAT proceedings in other ways, the Charter Act does not confer upon VCAT a power to conduct a collateral review of a decision of the public authority.
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* A separate ground of unlawfulness is required before a person can rely upon unlawfulness based upon a breach of s 38 of the Charter Act.
Read the judgment. Read VGSO's summary.
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For more information on important Charter cases, visit our Charter Act cases page.
