As members of an independent committee established by the Victorian Government, we have recommended that the State enact a Charter of Human Rights and Responsibilities. The Bracks Government has said that, although it has to work through the details, it will move to enact such a Charter in 2006. It will be the first State to do so, and will adopt a model that, along with the 2004 Australian Capital Territory Human Rights Act, other States could follow.
After six months of listening to Victorians of all ages and backgrounds across the State, it is clear that they want their human rights to be better protected. Although we assume that we have many of these rights, such as freedom of speech, few are actually protected by the law and others are scattered across the statute books. While Victorians do not want radical change, they do support common sense reform that will strengthen their democracy and set out their fundamental rights in one accessible place.
To find this out, we took part in 55 community forums and had 75 other meetings with government and community bodies. We also received 2524 written submissions, an unprecedented number for a process of this kind, 84 per cent of which (or 94 per cent if petitions and group submissions are included) said that the law should be improved.
Many people want to see their human rights better protected to shield themselves and their families from the potential misuse of government power. For even more people, however, the desire for change reflects an aspiration to live in a society that continues to strive for the values that they hold dear, such as respect for others, equality, justice and freedom of speech. They also said that all rights come with responsibilities, including the responsibility to respect other people’s rights.
Based upon what we heard, we recommend that the Victorian Parliament enact a Charter of Human Rights and Responsibilities. This would not be based on the United States Bill of Rights. It would not give the final say to the courts, nor would it set down unchangeable rights in the Victorian Constitution. Instead, the Charter would be an ordinary Act of Parliament like the human rights laws operating in the Australian Capital Territory, New Zealand and the United Kingdom.
Victoria’s Charter would be written in clear language, with opening words that set out the community values that underpin it. In this form, it could be used by children in schools and for broader community education, such for people newly arriving in Victoria.
The Charter would also play an important role in policy development within government, in the preparation of legislation, in the way in which courts and tribunals interpret laws and in the manner in which public officials treat people within Victoria. It would create a new dialogue between the community and government from the earliest stages of decision-making to help prevent human rights problems emerging in the first place. It will also make government more accountable to the community it serves.
We recommend that the Charter protect those rights that are the most important to an open and free democracy, such as the rights to expression, to association, to the protection of families and to vote. These are contained in the International Covenant on Civil and Political Rights 1966, to which Australia has been a party for many years. We have said that some of the rights in this instrument need to be modified to make sure that the Charter best matches the aspirations of the Victorian community.
These rights could be limited, as occurs in other nations, where this can be justified as part of living in a free and democratic society. This would mean that our elected representatives can continue to make decisions on behalf of the community about matters such as how best to balance rights against each other, protect Victorians from crime, and distribute limited funds amongst competing demands. We also believe that the Charter should recognise the power of the Victorian Parliament, not just to balance such interests, but to override the rights listed in the Charter where this is needed for the benefit of the community as a whole.
The Charter would include a mechanism for review. Indeed, we do not expect that the Charter would remain unchanged, but that it would be updated and improved with the benefit of experience. The Charter should be the start of incremental change, not the end of it. This ought to take place not just in Victoria but around the nation.
New Matilda believes that Australia should follow the lead of the ACT and now Victoria and adopt federal human rights protections in the form of a Human Rights Act. It has produced a draft Bill which is available for download (here) and it is currently inviting submissions and comment.
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