Victorian Charter: After 4 Years the Impact of the Charter is 'Clear and Positive'

On 5 May 2011, the Victorian Equal Opportunity and Human Rights Commission's 2010 Report on the operation of the Charter of Human Rights and Responsibilities, entitled Talking Rights, was tabled in Parliament. Each year, the Commission is required to submit a report to parliament which examines the operation of the Charter, including its interactions with other laws, and any declarations of inconsistent interpretation and override declarations.

To do this, the Commission requests and then collates information provided by Victoria’s government departments, Victoria Police, local governments and a number of statutory authorities on the steps they have taken to implement the Charter into their operations.

The Report also presents community perspectives on the Charter’s operation, how it is working and the impact, benefits and limitations of the Charter in practice.  These perspectives were provided by community consultation undertaken by the Commission.

The Report found ‘clear evidence that the Charter is making a genuine difference for individuals and communities’.  The Report noted a number of themes which emerged in the course of the Commission’s review:

• when used appropriately, the Charter prevents breaches of human rights by taking rights into account at the front end of government operations;
• practical application of the Charter can be seen through matters being heard in courts and tribunals, where guidance on its application is emerging;
• there is also a significant parliamentary dialogue, although the role of the Scrutiny of Acts and Regulation Committee is crucial to informing Parliamentary debate and must be developed;
• community consultation recorded strong support for the protection of human rights through a mechanism like the Charter;
• given its focus is on cultural change, the Charter’s continued implementation needs strong leadership and commitment; and
• when Parliament passes laws which are inconsistent with, or override, human rights, transparent reporting on those laws and their operation should be mandatory.

The Report found a positive cultural change is taking place within government.  Accounting for and implementing human rights considerations is becoming entrenched in governmental practices and procedures.  When applied well, the Charter’s impact is ‘clear and positive’, for although the values enshrined in the Charter already exist within the public service, the Charter provides a ‘strong and clear framework’ for public authorities to work within.  However, the Report noted that a consistent and thorough approach is needed to ensure implementation of the Charter across all government agencies and to ensure that all staff understand how the Charter applies to their work.

The Report observed that a more consistent approach and application of the Charter would better enable public authorities to deliver better outcomes for all Victorians and would assist in reducing the time spent by the courts and VCAT on matters which could be avoided through better consultation, analysis and planning at the public service level.

Although the Report noted four years was a relatively short time in which to adequately assess the Charter’s impact, the Commission has seen increasing sophistication in the utilisation and application of the Charter in that time.  Public authorities are not only training and reporting on the Charter; they are using the Charter to assist their decision making processes, enhance accountability and raise service standards, with the result of ‘achieving fairer, more inclusive and better services’ for all Victorians.

The Commission similarly observed greater clarification in the use of the Charter in the courts and VCAT in that time.  While there have not been many Charter cases, those cases have provided valuable guidance on the interpretation of the meaning and scope of human rights which has clarified governmental responsibilities under the Charter which in turn has strengthened the law and policy-making process.

The Report is also accompanied by three consultation reports with the Victorian community which examine the following discrete human rights issues:

• economic, social and cultural rights and the Charter;
• the rights of people with disabilities and the Charter; and
• consulting with Victoria’s Indigenous community about the right to self-determination and the Charter.