Victoria’s Charter: Is it an example of problems with Charters in general?
Several church submissions to the National Consultation on Human Rights suggested that a federal Charter would weaken religious protections by the standards of international human rights documents such as the International Covenant on Civil and Political Rights (ICCPR). They pointed to the Victorian Charter (VC) as an example of the failings of domestic Charters to uphold the standards of the ICCPR. This paper reviews the weaknesses of the VC in regard to religious protection and suggests that these weaknesses do not imply that domestic Charters should be rejected as a result. Rather, it is much more preferable to amend Charters to strengthen their ability to balance executive and Parliamentary power. Statutory Charters can be drafted so as to avoid the weaknesses of the VC. This is a better way to protect religious freedoms than avoiding Charters outright.
The Weaknesses of the Victorian Charter
Two important concerns with the strength of the Victorian Charter’s mechanisms relate to:
a) The scope of its limitation clause (s 7); and
b) The operation of the overriding provision (s31).
These weaknesses were not identified in Christian submissions to the National Consultation on Human Rights or in critiques by Christian commentators who oppose a federal Charter. The practical effect of these weaknesses is to hand much of the protective power of human rights norms, such as Article 18 of the ICCPR, to Parliament. Church submissions emphasised the importance of preserving the protections found in Article 18.
Scope of the Limitations Clause
The first weakness of the VC as identified in part (a) relates to the scope of the limitation clause in s 7 (2). This section concerns its applicability to *all rights* listed in the Charter, even so-called ‘non-derogable’ and ‘absolute’ rights. The general scope of limitations does not isolate religious rights for special attention. Other rights, such as the right to freedom of conscience and the right not to be tortured (both also non-derogable), are also subject to the limitations process contained in s 7 (2). The problem here is that such rights, including the right to hold a religious belief, are not subjected to a limitations process internationally. As Sarah Joseph et al, state:
“The fundamental character of these freedoms is also reflected in the fact that this provision [18(1) of ICCPR] cannot be derogated from, even in time of public emergency, as stated in article 4(2) of the Covenant.”
It is improper for the VC to place such non-derogable rights under a limitations process, contrary to standard international practice. This is because, in these circumstances, in a public emergency, a government might argue that it’s acting consistently with the Charter if it circumscribed the right even to hold a religious belief. This is a shortcoming in the VC, as it fails to uphold the non-derogation of fundamental freedoms in way that is consistent with international human rights standards.
Overriding Provision – s 31 of the VC
“this Charter enables Parliament, in exceptional circumstances, to override the application of the Charter”
The second weakness inherent in the Charter is more problematic. The override mechanism in s 31 is a redundancy (probably left in to emphasise the sovereignty of Parliament). It is modelled on s 33 of the Canadian Charter. Pursuant to this section, the function of parliamentary sovereignty is preserved in response to a judicial declaration of incompatibility(s 36(2). However, the Canadian Charter is fundamentally different from Victoria’s in that the Canadian version gives the judiciary power under the Constitution to overturn legislation. The reason for the override in the Canadian system is to give Parliament a response to a judicial decision. By contrast, Victoria’s Charter does not allow a court to invalidate or suspend the operation of any law through the Charter.
If the Victorian Supreme Court or Court of Appeal issues a Declaration of incompatibility, the legislation in question remains in force, as s 36(2) states (that a Declaration):
“does not affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made”
The law is not suspended nor is any new legal remedy available as a result of a Declaration. Let us consider a recent example where a Declaration might be used.
Recently, the Victorian Parliament tabled a bill with a statement of incompatibility (under s 28). The Summary Offences and Control of Weapons Acts Amendment Bill 2009 (Vic) gives police the power to randomly search people who in a ‘designated area’. The Bill enables police to conduct searches of *any* person in such an area, including children, even in the absence of *any *reasonable suspicion of wrongdoing. The Law also allows police to conduct strip searches in certain circumstances. The power to conduct strip searches extends to the invasive strip searching of children.
What might happen if legal action is brought under this new legislation? First, regardless of any statement of incompatibility, the law has normal validity and enforcement (s29). Second, any legal action in relation to the legislation could only be brought under non-Charter laws. In other words, the Victorian Charter itself cannot be used as a basis for a claim. If a court, in bringing its decision, finds that the legislation is indeed incompatible with the Charter, and that the court is unable to interpret the legislation compatibly, as is its mandate under s 32, it may issue a Declaration to the Parliament to that effect (s 36).
The Victorian Parliament would then have 6 months to make a formal written response to the Declaration (s 37). During this time, and beyond, the legislation remains in force, just as it did before the Declaration (s 36(5)).
Clearly then, the court’s view of the legislation’s incompatibility with the Charter has no legal effect on the legislation. In the circumstances where the Parliament introduced and passed the legislation fully aware of its Charter incompatibility, it might well respond to the court with words to the effect of, “we know”. Nothing more need be done by Parliament, and nothing more can be done by a court in response.
This scenario is entirely possible, plausible and very different to an outcome under a Constitutionally embedded Charter (such as Canada’s). So why have an override clause in Victoria when there is nothing to override? The will of Parliament is not under legal threat by this or any provision of Victoria’s Charter. The existence of the override clause in the context of a weak statutory Charter is giving redundant power to Parliament. In doing so, commentators such as Julie Debeljak, argue that it weakens the purpose of the Charter in encouraging dialogue between the judiciary, executive and Parliament.
How to resolve weaknesses
It is hard to conceive how abandoning the VC entirely is the best way to address the weaknesses outlined above. What the weaknesses do is reinforce government’s ability to act with fewer checks and balances on executive and Parliamentary power. That includes the freedom to ignore the principles of ICCPR Article 18. Silencing Article 18 – by removing or weakening the VC – removes these terms from the domestic institutional setting. Victoria has been witness to the ability of the state to interfere with religious interests in the cases of the *Racial and Religious Tolerance Act* (2001), which inadequately protects religious free speech, and the abortion law reforms (2009), which failed to give proper account of the religious conscience of doctors.
Some church submissions to the National Human Rights Consultation argued that human rights instruments, such as Charters of Rights, are inherently biased against religious interests. It is somewhat paradoxical that opponents of Charters draw on international human rights instruments to support their opposition to enshrining such instruments in our domestic setting. If these critics agree that some human rights instruments are protective of rights, then the question is not whether we have a Charter but what form the Charter should take to best protect religious freedom.
The Victorian Charter’s key weaknesses, the scope of the limitation clause and the operation of the overriding provision, reduce the accountability of politicians and government. These shortcomings are best remedied by parliament amending the VC – and any federal version – to improve these specific weaknesses. The issues are not at all overcome by eliminating Charters entirely, the result of which is to exacerbate existing concerns for protecting religious freedoms as outlined in the ICCPR.
A. McLeay and M.J. Webb
Note that the South African Bill of Rights recognises the non-derogability of certain rights in s 37.
Joseph, S., et al, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary. 2nd edition. New York: Oxford University Press, 2005.
For commentary on the Summary Offences and Control of Weapons bill, see HRLRC Bulletin Vol 44, December 2009, online at http://www.hrlrc.org.au.
Debeljak, J.,“Balancing Rights in a Democracy: The problems with limitations and overrides of rights under the Victorian Charter of Human Rights and Responsibilities Act” Melbourne Law Review 32 (2008).