Human Rights and Equal Opportunity Commission Website

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Submission in response to the Tasmanian Law Reform Institute’s Issues Paper: A Charter of Rights for Tasmania?

15 December 2006

INTRODUCTION

The Human Rights and Equal Opportunity Commission (‘the Commission’) makes this submission to the Tasmania Law Reform Institute in response to its issues paper titled A Charter of Rights for Tasmania.
The Commission believes that a Tasmanian Charter of Rights could, depending on its form and content, significantly improve human rights protection in Tasmania.
While the human rights of people within Australia’s jurisdiction currently receive some protection from the common law, the Australian Constitution and anti-discrimination legislation, the Commission believes there are significant gaps in the existing protection of human rights.[1]
Incorporating Australia’s international human rights obligations into a Tasmanian Charter of Rights would set out the basic minimum standards that the Government and public authorities must protect in the legislative process, and in the administration of law.

WHAT FORM SHOULD A CHARTER OF RIGHTS TAKE?

There are various ways in which a Charter of Rights might be incorporated into Australian law, including by Constitutional amendment or by statute. The United Kingdom (UK), New Zealand, the Australian Capital Territory (ACT), and Victoria have all introduced statutory charter of rights.
The Commission believes that the statutory model is the most appropriate. The Commission notes that the Tasmanian Government has indicated to the Tasmanian Law Reform Institute that if a Charter of Rights is enacted, the recommended model should preserve parliamentary sovereignty. The Commission is of the view that a statutory Charter of Rights best preserves parliamentary sovereignty.
The Commission believes a statutory Charter of Rights could significantly improve human rights protection in Tasmania by:
- Creating a dialogue between the three arms of government – the Courts, the Executive and the Legislature – about human rights protection in Tasmania;
- Fostering a culture of human rights in the law and policy making process and in the broader community;
- Preserving parliamentary sovereignty by making sure that Parliament has the ‘last say’ about whether legislation complies with a Charter of Rights.
The Commission considers that the Charter should contain a provision requiring proposed amendments to the Charter to be scrutinised by a parliamentary committee. Such a provision would not prevent future Parliaments amending the Charter but it would signal the Government’s commitment to the protection of human rights and its intention that the Charter not be amended without careful consideration.

WHAT RIGHTS SHOULD BE PROTECTED?

Australia has ratified the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR provides that states must take steps to give effect to ICCPR rights and to ensure that victims of violations of the ICCPR have an effective remedy.[2] The ICESCR provides that states must take steps ‘to the maximum of [their] available resources’ to achieve the ‘progressive realisation’ of ICESCR rights.[3]
The Commission believes that as a starting point a Tasmanian Charter of Rights should protect the rights set out in ICCPR and take steps to achieve the progressive realisation of the rights set out in the ICESCR.[4]

11. The Human Rights and Equal Opportunity Commission Act 1986 (Cth) recognises that human rights are indivisible.[5] Protecting economic and social rights create the conditions in which political and civil rights become meaningful. For example, in order to protect the right to life you need to protect people’s right to food and adequate healthcare.

The Commission believes that, as a matter of principle, economic, social and cultural rights and civil and political rights should be treated as indivisible and interdependent. However, the Commission acknowledges there may be practical concerns about vesting responsibility in the courts to adjudicate on the implementation of economic, social and cultural rights, as political and economic considerations may be involved.
Domestic charters of rights in Victoria, the ACT, the United Kingdom, New Zealand and Canada incorporate ICCPR rights. So far, with the exception of the South Africa, domestic charters focus on expressly protecting civil and political rights, not economic social and cultural rights.[6]
While there may be concerns about the justiciability of economic, social and cultural rights, a Tasmanian Charter of Rights could recognise economic, social and cultural rights without involving the courts. For example, a Tasmanian Charter of Rights could require Parliament to consider the impact of new laws and policies on economic, social and cultural rights in its pre-legislative processes.
Instead of adopting an ‘all or nothing’ approach to the question of protecting economic, social and cultural rights, the Commission encourages the Tasmanian Law Reform Institute to consider all options for protecting economic, social and cultural rights.

WHO SHOULD A CHARTER OF RIGHTS APPLY TO?

The Charter of Rights should protect all people.

The Commission believes that human rights are for everybody, everywhere, all the time. Every human being has human rights. A Charter of Rights should protect the human rights of every person in Tasmania’s jurisdiction, regardless of their immigration status.
The Commission believes a Tasmanian Charter of Rights should expressly state that corporations do not have human rights.[7] Conceptually the ‘rights’ of corporations are distinct from human rights. In principle the purpose of human rights is to protect the inherent dignity of all members of the human family.[8] In practice protecting corporations’ human rights may give corporations a vehicle to advance commercial interests.[9]

Public authorities should be bound by the Charter of Rights.

The Commission believes a Tasmanian Charter of Rights should state it is unlawful for any public authority to act in a way that is inconsistent with the Charter. [10] The Charter should expressly state that an act by a public authority is not unlawful if:
1. as a result of one or more of the provisions of the primary legislation the authority could not have acted differently; or
2. in the case of one or more provisions of, or made under, primary legislation which can not be read or given effect to in a way which is compatible with Charter of Rights, the authority’s actions were to give effect to or enforce those provisions.[11]

A Tasmanian Charter of Rights should apply to any body which performs a public function with the exception of the legislature which retains the right to make laws which are inconsistent with the rights protected under the Charter. The definition of a public authority should not include proceedings in both houses of Parliament or the actions of judicial officers in developing the common law.
The interaction between the public sector and the private sector means that many private companies now undertake public functions. In this context the definition of a ‘pubic authority’ should ‘look at what is being done, not who is doing it’.[12]
The definition of a ‘public authority’ should include government departments, statutory authorities, local government and all persons or bodies that perform public functions on behalf of the Government, when they are performing those public functions.
Some commentators have argued that a Charter of Rights should bind corporations and private actors. The Commission notes the enormous resource implications of ensuring that the actions of all corporations and private citizens act in accordance with a Tasmanian Charter of Rights. The Commission believes the Charter should focus on the actions of Government and public authorities. It may be appropriate to revisit the question of whether a Charter should apply to corporations and private citizens in a review of the Charter’s operation.

CAN THE RIGHTS IN A CHARTER OF RIGHTS EVER BE LIMITED?

Most human rights are not absolute. At times, some individual human rights may need to be limited in the interests of national security, public order or general welfare in a democratic society. However, other human rights – like the right to life, the right to be free from torture and the right not to be held in slavery – are so basic that they should never be restricted or suspended.
There are a number of different ways which a Tasmanian Charter of Rights could recognise the fact that sometimes it may be necessary to restrict certain rights:
- A reasonable limits clause: under a reasonable limits clause the rights protected by the Charter would be subject to ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’;
- An ‘override clause’: under an override clause parliament can state that a statute is intended to operate notwithstanding the fact that it is inconsistent with the rights protected by the Charter.
The Charter of Human Rights and Responsibilities 2006 (Vic) (the Victorian Charter) includes a reasonable limits clause and an override clause.[13]
A Charter of Rights could also declare that certain rights – for example the right to life or the right not to be subject to torture – are non-derogable. ‘Non-derogable rights’ could not be restricted or infringed in any circumstances.
The Commission recognises that in certain circumstances some rights will have to be balanced against other rights and that, in extraordinary circumstances, it may be necessary to suspend or restrict certain rights.
If a reasonable limits clause was introduced the Commission considers that that clause should require the Government to take into account all relevant factors including:
1. What is the nature of the right that is limited;
2. What is purpose of limiting the right;
3. What is the nature and extent of the limitation;
4. Whether the limitation is necessary to achieve the purpose;
5. Whether any less restrictive means is reasonably available to achieve the relevant purpose.[14]

HOW SHOULD THE CHARTER OF RIGHTS IMPACT ON THE LAW AND POLICY MAKING PROCESS?

Human rights should play a vital role in the law and policy making process that leads up to the enactment of legislation. The best way to do this is to make sure that both the Executive and the Legislature consider the human rights impact of proposed policies and laws.
Strengthening the mechanisms of parliamentary scrutiny will increase parliamentary accountability and transparency in relation to human rights issues and assist in the development of a strong parliamentary culture of human rights compliance. It will also contribute to the creation of a robust human rights culture within the broader community.

A Charter of Rights should establish a Parliamentary Standing Committee on Human Rights.

Committees play a vital role in scrutinising proposed legislation and facilitating public debate about the human rights implications of proposed laws.
A Tasmanian Charter of Rights should require a Parliamentary Standing Committee on Human Rights to:
- Inquire whether any Bill introduced into Parliament complies with the Charter;
- Inquire into questions referred to the Committee by Parliament.
The Committee should be a joint committee to minimise partisanship and increase legitimacy. The Committee should also have adequate time and resources to properly assess the human rights implications of proposed legislation.
The Committee should be dedicated to considering human rights issues. This enables a permanent committee to build expertise in analysing human rights issues and recognises the vital role of the Charter as a minimum standard with which Government legislation and policy must comply with.

A Charter of Rights should require a human rights compatibility statement.

When a Minister introduces a Bill to Parliament, the Tasmanian Attorney-General should be required to prepare a human rights compatibility statement which sets out the reasons why the Attorney believes the Bill is consistent or inconsistent with the Charter.
If the Tasmanian Attorney-General believes that the Bill is inconsistent with the Charter, the Attorney-General should provide the following information:
1. The nature of the right that is limited;
2. What is the purpose of limiting the right;
3. The nature and extent of the limitation;
4. Why the limitation is necessary to achieve the purpose;
5. Whether any less restrictive means is reasonably available to achieve the relevant purpose.[15]
A Private Member’s Bill must also be accompanied a human rights compatibility statement prepared by the Member of Parliament who introduces the Bill.
Each new or amended Regulation tabled in Parliament should also be accompanied by a human rights compatibility statement.
Where no statement of compatibility has been made about legislation and regulations enacted after the Charter, the legislation will still be valid. However, the legislation should be subject to an automatic two year sunset clause. This would prevent Governments being able to circumvent the parliamentary scrutiny provisions and ensure that the legislation’s compatibility with the Charter is scrutinised at some point.

A Charter of Rights should require Human Rights Impact Statements.

Human Rights Impact Statements (HRIS) would help Parliament assess the impact proposed legislation may have on human rights in Tasmania.
All submissions to Cabinet which may have ‘a direct or significant impact on Human Rights’ must be accompanied by a HRIS. The responsibility for preparing the HRIS should rest on the Department or Agency making the submission to Cabinet.
HRIS will improve the chances of achieving a ‘whole of government’ human rights culture because the importance of complying with human rights is introduced at an early stage in the law and policy making process.

A Charter of Rights should allow for a delay in commencing certain provisions of the Charter.

The Charter should allow for a delay in introducing certain provisions of the Charter of Rights to allow the legislature, the executive and government departments time to consider how they are going to meaningfully comply with their obligations under the Charter.[16]

WHAT ROLE SHOULD THE COURTS HAVE UNDER A CHARTER OF RIGHTS?

The Commission believes that a Tasmanian Charter of Rights should give courts the power to:
- Interpret legislation consistently with the Charter;
- Make a declaration of incompatibility if legislation is incompatible with the Charter;
- Hear and determine individual actions brought against public authorities for acting unlawfully under the Charter.

A Charter of Rights should require Courts to interpret legislation consistently with human rights.

The Tasmanian Charter of Rights should include an interpretative clause which provides that legislation (whether primary or subordinate legislation and whenever enacted), ‘so far as it is possible to do so consistently with their purpose’, must be interpreted in a way which is compatible with human rights contained in the Charter.[17]

The Tasmanian Charter of Rights should state that in determining whether legislation is compatible with human rights the courts, where relevant, must have regard to international conventions and treaties which Australia has ratified and may have regard to other sources of international human rights law.[18] This helps make sure that legislation complies with Australia’s international human rights obligations.

A Charter of Rights should allow the Courts to make a declaration of incompatibility.

While courts should not have the power to strike-down legislation that is inconsistent with the Tasmanian Charter of Rights, a superior court should be able to declare if certain laws are incompatible with the Charter.
A declaration of incompatibility would not have any effect on the validity or continuing operation of the legislation.
The Attorney-General and the Tasmanian Human Rights Commission[19] should be given notice of proceedings where a declaration of incompatibility might be made.
The declaration of incompatibility should be tabled in Parliament. After the declaration of incompatibility has been tabled, it should be examined by the Human Rights Scrutiny Committee. Within a prescribed period after the declaration of incompatibility is tabled, the Committee should report to Parliament about what action the Parliament should take in response to the declaration.
The Attorney-General should formally respond in writing to the declaration by either changing the law to make it compatible with the Charter or by explaining why the Government believes the law should stay the same. The Attorney-General’s formal response to the declaration of incompatibility should be tabled in Parliament within six months of the Court delivering it judgment.

Courts should be able to provide enforceable remedies.

The Commission believes a Tasmanian Charter of Rights should give courts the power to hear and determine individual actions brought against public authorities for acting unlawfully under the Charter. In order for this power to be meaningful courts should also be able to provide effective remedies.
Article 2(3) of the ICCPR provides that if a person’s rights under the ICCPR have been violated that person has a right to an ‘effective remedy’.[20] The Commission considers that, consistent with Article 2(3) of the ICCPR, a Tasmanian Charter should explicitly provide that a person who is (or would be) a victim of an act or decision (or a proposed act or decision) by a public authority which is unlawful under the Charter may bring an action to seek legal remedies.[21]

The Commission recognises that, in light of the concerns about courts adjudicating on economic, social and cultural rights, a Tasmanian Charter may want to limit judicial remedies to a breach of civil and political rights.[22]
The United Nations Human Rights Committee (UNHRC) has stated an ‘effective remedy’ requires ‘reparation to individuals whose Covenant rights have been violated’. The UNHRC considers that ‘reparations can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition’.[23]
So far domestic charters have adopted different approaches to the question of what remedies should be available for individual breaches of civil and political rights and, in particular, whether the courts should have the power to award damages for a breach of Charter rights.
The Human Rights Act 1998 (UK) provides courts with the power to grant therelief it considers ‘appropriate and just in the circumstances’, consistent with itspowers to grant such relief or remedy.[24]This power allows courts to award damages but only if such an award is ‘necessary to afford satisfaction’ to the complainant.[25] In other words, if another remedy can satisfy the complainant, damages should not be awarded. To date, there have been three awards of damages under the Human Rights Act 1998 (UK).[26]
In contrast, the Victorian Charter expressly excludes the Court from awarding damages for a breach of Charter rights unless a right to damages was already available under an existing law.[27] This reflects the approach of the Victorian Human Rights Consultation Committee who argued that ‘removing damages from the Charter represents a balance between the need for a remedy and not imposing potentially significant additional costs upon government’.[28]
Under a Tasmanian Charter of Rights a court could be empowered to order a range of remedies including:
- a declaration that the authority has acted unlawfully;
- an injunction preventing the authority giving effect to an unlawful decision;
- an order setting aside an unlawful decision, and where appropriate ordering that the decision be made afresh according to law;
- appropriate compensation and reparation;
- such other remedies as are 'just and appropriate’.[29]
While the Commission recognises concerns about the possible financial implications of awarding damages, in some circumstances the award of damages may be the only effective remedy for a breach of human rights. The Commission notes that it may be possible to allay concerns about the financial implications of awarding damages by confining the award of damages to such circumstances in which damages are the only effective remedy. [30]
The Commission considers that if a Tasmanian Charter of Rights did not include a direct right of action against a public authority, this issue should be revisited in periodic statutory reviews of the Charter’s operation.

A victim or potential victim of a violation of human rights should have standing to seek a remedy under a Charter of Rights.

A person who is an ‘aggrieved person’ in relation to an alleged infringement or denial of a right recognised by the Charter should be able to commence court proceedings and obtain a remedy in relation to the alleged breach of the Charter.
An ‘aggrieved person’ should be a natural person who is a victim or a potential victim of a breach of rights recognised by the Charter. Corporations should not have standing to seek a remedy under the Charter of Rights.
Sometimes a person whose rights have been violated may not have the capacity or the resources to seek a remedy. A Tasmanian Charter of Rights should enable a person or entity to bring an action on behalf of an aggrieved person (consistent with relevant court rules). This will still require a person to have a sufficient nexus to the alleged infringement or denial of a Charter right.

SHOULD AN INDEPENDENT HUMAN RIGHTS COMMISSION BE ESTABLISHED UNDER A CHARTER OF RIGHTS?

A Tasmanian Human Rights Commission should be established.

A Tasmanian Charter of Rights should establish an independent Tasmanian Human Rights Commission to monitor human rights protection under the Charter, advise government on compliance with Charter rights and promote public understanding and awareness of a Charter of Rights.
The Charter of Human Rights and Responsibilities Act (Vic) renamed the Equal Opportunity Commission of Victoria the Equal Opportunity and Human Rights Commission (Vic) and conferred additional functions on the Commission to promote understanding of, and compliance with, the Tasmanian Charter of Rights.

A Tasmanian Human Rights Commission should be able to intervene in Court proceedings about the Charter of Rights.

A Tasmanian Human Rights Commission should able to apply for leave to appear as intervener or amicus curiae in court proceedings about the application of a Tasmanian Charter of Rights.

A Tasmanian Human Rights Commission should educate the public about the Charter of Rights.

A core function of the Tasmanian Human Rights Commission should be to promote awareness and understanding of the operation of the Charter of Rights (both within the broader community and court system), and encourage government agencies and authorities to adopt polices and programs which are compatible with the Charter of Rights. The Tasmanian Commission’s education function could include:
1. Preparing an annual report on the operation of the Charter to be tabled by the Attorney-General in Parliament;
2. Examining enactments to see if they comply with the Charter;
3. Reviewing practices of public authorities, including Government Departments, for Charter compatibility;
4. Making submissions to the Parliamentary Standing Committee on Human Rights about the human rights implications of new bills;
5. Promoting understanding and acceptance of, and compliance with, the Charter. This may include undertaking research and developing education programs to promote the objectives of the Charter.

SHOULD THERE BE AN OBLIGATION TO REVIEW HOW THE CHARTER OF RIGHTS IS WORKING?

A Tasmanian Charter should provide for a review after four years of operation and after eight years of operation.[31] This review provision will allow Parliament to assess whether the Charter is working effectively.
If important issues – for example whether the Charter of Rights should include economic and social rights – are left out of the Charter of Rights, a statutory provision should expressly require the Review to revisit these issues.[32]

15 December 2006

[1] For further discussion see John von Doussa QC, ‘In defence of human rights’, Address to the UNSW Law Society’s Speakers Forum, 24 August 2006; Commissioner Graeme Innes ‘The Human Rights and Equal Opportunity Commission and the Protection of Human Rights at a federal level’, Address to the ANU Bill of Rights Conference. Both speeches are available at http://www.humanrights.gov.au/speeches/index.html.

[2] The Commission notes that the United Nations Human Rights Committee (UNHRC) has stated that all branches of government, and other public or governmental authorities, at whatever level – national, regional or local – are in position in engage with a State’s responsibility under the ICCPR. See United Nations Human Rights Council, The nature of legal obligations imposed on state parties to the covenant, General Comment no. 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) [4].

[3] See Art 2 of the ICESCR.

[4] Australia has also agreed to act in accordance with the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Elimination of All forms of Racial Discrimination and the Convention on the Rights of the Child.

[5] Section 10A of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) provides that HREOC is required to ensure that its functions under the Act are performed ‘with regard for the indivisibility of human rights’.

[6] The Charter of Human Rights and Responsibilities Act 2006 (Vic) does make explicit protection for the protection of Aboriginal identity, culture and language. While the Human Rights Act 1998 (UK) protects most civil and political rights it also protects the rights to education and the right to property.

[7] Such a provision could be modelled on Charter of Human Rights and Responsibilities Act 2006 (Vic) s 6.

[8] Universal Declaration of Human Rights.

[9] For example, the Canadian Supreme Court has found that placing health warnings on cigarette packets violates corporation’s right to free speech. See McDonald Inc v Canada [1995]3 SCR 199.

[10] This approach has been adopted in the UK, NZ and Victoria although the Human Rights Act 1998 (UK) has a greater range of remedies available for a breach of the Charter than the Charter of Human Rights and Responsibilities Act 2006 (Vic). In the Commission’s view the best way to make sure public authorities adopt good human rights practices is by the inclusion of a provision similar to s 6 of the Human Rights Act 1998 (UK).

[11] Such a provision is modelled on the Human Rights Act (UK) 1998 s 6.

[12] Such an approach is reflected in the Charter of Human Rights and Responsibilities Act 2006 (Vic) s4.

[13] Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 31.

[14] Such a provision could be modelled on Charter of Human Rights and Responsibilities (Vic) s7(2).

[15] These criteria where developed by Dr Simon Evans. See Dr Simon Evans, ‘The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four key differences and their implications for Victoria’ (paper presented at the Regulatory Institutions Network, ANU, and the Gilbert +Tobin Centre of Public Law conference on The Australian Bill of Rights: the ACT and Beyond, Canberra, 21 June 2006).

[16] The Human Rights Act 1998 (UK) s22 allowed for delayed commencement of certain provisions; see also Charter of Human Rights and Responsibilities 2006 (Vic) s2.

[17] Such a provision could be modelled on the Human Rights Act 1998 (UK) s 3.

[18] Such a provision could be modelled on the Human Rights Act 2004 (ACT) s31(1).

[19] See para 67-70 in this submission.

[20] The United Nations Human Rights Committee (UNHCR) has stated that ‘in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights ... importance [is attached] to State Parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of human rights violations under domestic law’. See UNHRC, The nature of legal obligations imposed on state parties to the covenant, General Comment no. 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) [15].

[21] Such a provision may be modelled on s7 of the Human Rights Act 1998 (UK).

[22] See discussion at para 10-15 of this submission.

[23] UNHRC, The nature of legal obligations imposed on state parties to the covenant, General Comment no. 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) [15-16].

[24] Human Rights Act 1998 (UK) s 8(1).

[25] Human Rights Act 1998 (UK) s 8(2).

[26] Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act, (2006) 18.

[27] Charter of Human Rights and Responsibilities Act (Vic) s39.

[28] Human Rights Consultation Committee, Rights, Responsibilities and Respect: Report of the Human Rights Consultation Committee, (2005).

[29] See s 8(1) of the Human Rights Act 1998 (UK) which similarly allows courts to grant such ‘relief or remedy, or make such order, within its powers as it considers just and appropriate’; see also s 24(1) of the Canadian Charter of Rights and Freedoms which provides persons whose rights and freedoms have been infringed or denied are entitled to ‘such a remedy as the court considers appropriate and just in the circumstances’.

[30] A Charter could also expressly limit the award for damages to such an award as is necessary to compensate the victim for what actually happened and prohibit the award of exemplary or punitive damages.

[31] Such a provision could be modelled on s44 and s45 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

[32] Such a provision could be modelled on s43 of the Human Rights Act 2004 (ACT) or s44 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

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