The Victorian Government is undertaking a review of Victoria’s Charter of Rights and Responsibilities following 4 years of the Charter’s operation. The Government’s Scrutiny of Acts and Regulations Committee (SARC), which has been appointed to review the Charter, has received a large number of submissions. Public hearings before the committee shall be held and SARC must table a report from its review in Parliament by 1 October 2011. The Government will then make its response.
IsaiahOne has made a submission to the Government examining two areas of the Charter: (1) the Charter’s effects on the disadvantaged; (2) the Charter’s effects on religious freedom. The submission highlights the strong commitment by Christians to human rights in Victoria. It points out the evidence that the Charter is helping to remedy human rights breaches in several ways, including as an advocacy tool, guiding systemic reforms and through legal challenges. The submission examines the Charter’s effects on religious freedom in Victoria by reviewing controversial episodes such as Catch the Fire Ministries as well as court cases involving religious freedom and the Charter. It concludes by recommending the retention of the Charter’s elements which provide benefits to the disadvantaged, while modifying some elements which have the potential to diminish the protection of religious freedom.
Victorian Charter’s Effects on the Disadvantaged
A number of examples show the effects of the Charter on the disadvantaged. Many other submissions by organisations which work with the vulnerable and disadvantaged support the Charter and IsaiahOne is unaware of any such organisations which do not support the Charter. The submission divides these into three areas of impact, (1) advocacy; (2) legal remedies; and (3) systemic reforms. The first two involve the ‘front end’ of Government, informing policy, education and legislation with human rights so that systems are shaped to avoid human rights breaches. The third area involves how to remedy problems at various stages, with a last resort often being a legal resolution. It’s important to understand that the Charter is intended to generate a ‘conversation’ between the three arms of Government (Executive, Parliament, Judiciary) at all stages of the civic system. For example, a court’s ruling on a human rights breach informs Parliament of a possible need to improve a law. This process already takes place within the existing common law system but without the explicit reference to human rights which a Charter delivers.
Advocacy-based Outcomes
- An asylum seeker otherwise denied basic medical treatment being given access to a hospital when the Charter was used to advocate on her behalf. [1]
- A single mother of two avoided eviction into probable homelessness when her barrister used the Charter to negotiate a solution with the Housing Commission. Doing so avoided escalating the dispute through the courts.[2]
- A boy with Aspergers Syndrome was eligible for disability support after a court application using the Charter prompted the Government to review and revise its disability definition (autism disorders now include Aspergers.) This policy change affects all those with Aspergers who require disability support.[3]
- The Charter was used to help negotiate a common-sense outcome for a man whose recently deceased partner was the public housing lease-holder. This greatly reduced the risk of him falling into homelessness.[1]
- The Charter was used to assist an Iraqi refugee with an intellectual disability who was moved by public authorities to a facility isolated from family and inflexible with regard to his language, cultural and religious circumstances. The man’s rights to family life and respect for his religious beliefs – such as being provided Halal food – were used to find more suitable accommodation.[2]
- Several young people with brain injuries who were due for discharge from a rehabilitation centre were going to be accommodated in aged-care facilities. This facility lacked important recovery services for the young people. The Charter was used as a basis for re-considering rehabilitation options leading to alternative arrangements better suited to the young people and their families.[3]
Court-Based Outcomes
- A man with a mental illness gained a review of distressing involuntary drug treatment, otherwise denied by existing systems and procedures which were meant to allow this.[4]
- A single father facing sudden and immediate eviction from public housing was granted an extension of time to find alternative housing so as to avoid becoming homeless. This case is particularly important as a precedent for handling decisions affecting all Victorian families in public housing. [5]
- The Charter was used to enable evidence to be given in court against a pedophile. The right of two child victims to testify against the perpetrator was being denied by a minor technical procedural issue that the Charter helped to overcome.[6]
Systemic Reform Outcomes
- The Charter was used by a disability service to recognise and enable their clients to exercise their right to vote.[7]
- The Charter was used in training and modifying procedures allowing for the humane treatment of detainees in facilities operated by a private contractor. Changes included improved strip-search procedures and measures designed to respect detainee’s religious beliefs. [8]
- The wearing of turbans in court by police was permitted in a regional area of Victoria following consideration of the Charter’s right to freedom of religion.[9]
These examples are a small slice of a much larger number, many of which will be evident in submissions from community groups, peak bodies and sectors of government. They do not necessarily prove that the Charter’s benefits are worth more than its costs but they deserve serious consideration and analysis from Christian groups evaluating the Charter. IsaiahOne’s submission to the review can be accessed here.
[1] Source: Homeless Persons Legal Clinic. Right to life, s 9.
[2] Source: Youth Affairs Victoria, National Human Rights Consultation Submission. Right to religion, s 14 (1)b & (2); right to cultural life, s 19.
[3] Source: Human Rights Law Centre. Right to privacy, protection from degrading treatment.
[4] Kracke v Mental Health Review Board [2009] VCAT 646. Rights involved included a fair hearing; free and informed consent; freedom of movement, ss 21,24.
[5] Director of Housing v Sudi [2010] VCAT 328. Right to family life, protection of the rights of the child, s 17.
[6] Source: S. Butcher, “First use of rights charter to protect children’s testimony” The Age November 5, 2010.
[7] Source: Victorian Council of Social Service.
[8] Source: Federation for Community Legal Centres (Vic). Right to humane treatment when detained, s 22.
[9] Source: Victoria Police.
[1] Source: West Heidelberg Community Legal Service. Relevant rights: right to life; protection from cruel, inhuman or degrading treatment; right to non-discrimination.
[2] Source: Michael Pearce SC. Right to family life, protection of children, s 17.
[3] Source: Human Rights Law Centre (January 2009). Protection of family and children; equality before the law, ss 17, 25.