Have Your Say on a Charter of Human Rights for Tasmania

On 20 October 2010, the Tasmanian Government released a ‘Directions Paper’ proposing a Charter of Human Rights and Responsibilities for Tasmania.  The Government is seeking responses to the paper by 14 January 2011. This is your chance to have your say on the promotion and protection of human rights and to learn from and build on Charters of Rights in Victoria and the ACT.

Human rights protection in Tasmania is currently fragmented and incomplete.  As well as enshrining peoples’ rights in law and providing redress for the existing gaps in human rights protection, a Tasmanian Charter would provide important social, economic and cultural benefits.

 

The Benefits of a Charter of Human Rights for Tasmania

It could:

  • enshrine universal values in Tasmanian law, such as such as freedom, dignity, equality, the rule of law and our sense of a fair go;
  • improve the quality of law-making and government policy by integrating human rights considerations into those processes;
  • improve public service delivery by encouraging a more client-focused, responsive and individualised approach to public services and help facilitate a shift away from inflexible or blanket policies and practices;
  • protect marginalised and vulnerable individuals by challenging poor treatment and improving the quality of life for those people;
  • support the creation of a culture of human rights; and
  • deliver economic benefits in the form of economic development and growth.

The Model of a Charter of Human Rights for Tasmania

The HRLRC has prepared a comprehensive submission, Towards a Tasmanian Charter of Human Rights, which recommends that a Tasmanian Charter have the following key features:

  • The Charter should promote a dialogue about human rights between parliament, the executive, the courts and the community.  (The Proposed Model is a dialogue model.)
  • The Charter should only recognise and protect the human rights of human beings.  (The Proposed Model only protects the rights of human beings.)
  • The Charter should enshrine all civil, political, economic, social and cultural rights recognised by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  (The Proposed Model does not adequately enshrine economic, social and cultural rights.)
  • The Charter should balance rights, responsibilities and other interests.  It should recognise that certain rights are absolute, such as the right to protection from torture and cruel, inhuman or degrading treatment.  All other human rights should be subject to such reasonable limits as can be demonstrably justified in a free and democratic society.  (The Proposed Model provides appropriately for limitations of human rights.)
  • The Charter should establish robust pre-legislative human rights scrutiny mechanisms.  New bills introduced into parliament should include a statement as to their ‘human rights compliance’ and a Joint Committee on Human Rights should review the human rights compatibility of all bills.  (The Proposed Model includes Statements of Compatibility but does not establish a Joint Parliamentary Committee.)
  • The Charter should bind 'Tasmanian public authorities', including Ministers, bodies created by Tasmanian laws and undertaking public functions, and private entities that perform public functions on behalf of Tasmanian public authorities.  (The Proposed Model binds bodies ‘funded or controlled’ by government, but it should bind all bodies who ‘exercise functions of a public nature’ on behalf of the government.)
  • The Charter should require that public authorities act compatibly with rights and give proper consideration to human rights in decision making.  (The Proposed Model requires public authorities to act compatibly, but only provides a limited requirement for the proper consideration of human rights.)
  • The Charter should require courts to interpret all Tasmanian law compatibly with human rights, but only so far as is possible consistent with statutory purpose.  The Act should not empower courts to invalidate legislation.  (The Proposed Model does both these things.)
  • Where legislation cannot be given a human rights-consistent interpretation, the Supreme Court of Tasmania should have the exclusive power to make a Declaration of Incompatibility.  Such a declaration would not affect the validity of the legislation but would require that parliament reconsider that legislation within a specified period.  The decision as to whether to amend, repeal or leave the legislation untouched would be entirely a matter for parliament.  (The Proposed Model provides for this dialogue between the courts and parliament.)
  • The Charter should provide people with effective judicial and non-judicial remedies where their human rights are breached by a Tasmanian public authority.  There should be a stand alone cause of action and all relevant relief, including compensation, should be available.  (The Proposed Model does not contain a stand alone cause of action and expressly states that damages will not be available.  It currently has a confusing regime of judicial and non-judicial remedies.)
  • The Charter should contain recognition of the human rights of Aboriginal People in the Preamble, in particular their distinct role and place as the First Peoples of Tasmania.  (The Proposed Model does not currently include this reference.)

The HRLRC further recommends that the Tasmanian Charter be accompanied and complemented by a comprehensive program of human rights education, both for the public and community sectors, and that legal and advocacy services be adequately resourced to enable people to understand and vindicate their human rights.

 

 

MichelleBennettHuman Rights Law & Institutions