JeremyGans

BY JEREMY GANS

Last month saw the tabling in Victoria’s parliament of the second of two statutory reviews of the Charter of Human Rights and Responsibilities Act 2006 , Victoria’s human rights statute. Titled ‘From Commitment to Culture’, the 2015 report has been warmly received by local rights organisations, a sharp contrast to the previous report tabled in 2011.

I have a close interest in such reviews. I teach criminal justice (a field typically heavily affected by human rights laws) in Victoria, I blogged the Charter’s first year of operation in 2008, I advise the Victorian Parliament’s Scrutiny of Acts and Regulations Committee on the compatibility of new legislation with human rights and I was one of three advisors to the earlier Charter review.

Many will have things to say about the recommendations made in the latest Charter review and the government’s eventual response to them. In this post, I will instead discuss the review mechanism itself, asking when, by whom, how and whether human rights laws should be reviewed.

When to review a human rights law

Both statutory reviews of Victoria’s Charter were recommended by the same report that recommended the Charter in the first place: the 2005 report of a ‘community consultation’ on human rights protection in Victoria, headed by Professor George Williams. At the conclusion of the report, which published the Charter’s first draft, the Williams Committee said:

The Charter can only be the beginning of a journey towards the better protection of human rights in Victoria. As such, regular reviews are necessary to assess whether the Charter is working effectively and to ensure that it continues to reflect the values and aspirations of the Victorian community.

Such reviews were also a feature of Australia’s first bill of rights, the Human Rights Act 2004 (ACT), but the Williams Committee felt that the ACT model of a mandatory review after one year of operation was ‘too soon’:

We consider that the Charter should be first reviewed four years from the date it commences operation, that is, that the first review of the Charter should commence on 1 January 2011… The Committee further recommends that the Attorney-General again reviews the Charter in a further four years, that is, from 1 January 2015, eight years after its commencement date

These recommendations were followed in sections 44 and 45 of the Charter, which require that reviews be tabled in Parliament in 2011 and 2015, respectively, by October 1 (three months later than in the Williams Committee’s draft).

Victoria has four-year fixed parliamentary terms with elections in non-leap even years, so these dates meant that both reviews would take place during the first year of a parliament term. This timing was intentional, the Committee explained, as it ‘would ensure that the review would not be within the same parliamentary cycle as the commencement of the Charter’. The timing also happened to isolate the reviews and the government and legislative responses to them from Victoria’s election cycle. (The Charter itself was initially proposed, consulted on and enacted entirely within the 2003-2006 term, and has never been an election issue.)

Like many of the Charter’s operative provisions, ss 44 and 45 have proven to be something of a misstep. Because Victoria experienced changes of government in both 2010 and 2014, neither review commenced on 1 January as anticipated. The 2011 review was only announced in mid-April, just five months before the last available tabling date in mid-September. The 2015 review was announced in early March, but it was almost as constrained, as the Attorney-General asked for it to be submitted to him by 1 September. The changes of government produced a further problem: citing public service protocols, the Liberal/National party government in 2011 would not release internal government information about the 2007-2010 term, even though that period was specified as the subject of the four-year review. Presumably, the 2015 review faced the same problem in learning what happened inside government during the Coalition’s single term in power.

The consultation committee also seemingly failed to predict that one or both reviews may be conducted by a government that was hostile to the Charter. Section 44 mandated that the 2011 review consider various expansions to the Charter that had not been included in the original statute, such as the protection of socio-economic rights, the right to self-determination and a free-standing remedy for breaches of human rights. However, the newly elected government had voted against the Charter’s enactment from opposition in 2006. The Attorney-General, Robert Clark, an outspoken opponent of the law, required that the 2011 review also consider the Charter’s existing operation, its ‘costs and benefits’ and how rights should be protected in Victoria, in essence revisiting the same questions addressed by the Williams Committee. Despite the return of a Charter-friendly government four years later, the 2015 review also spent most of its time retreading old ground, courtesy of the chaos the High Court visited on the Charter in Momcilovic v R [2011] HCA 34, a decision that came out just days before the 2011 review was tabled. Although the High Court upheld the constitutionality of the Charter, the six lengthy judgments in that case differed in irreconcilable ways on how key provisions of the statute ought to operate. In short, neither review had the time or the will to grapple with the sorts of significant expansions of the Charter that the Williams Committee had anticipated.

Who to review a human rights law

The Charter simply states that Victoria’s Attorney-General ‘must cause a review to be made of the first 4’ – and second 4 – ‘years of operation of this Charter’. Although submissions to the community consultation had recommended that ‘[a] properly funded independent non-government group should review the Charter’, the Williams Committee demurred:

The Committee believes that it is important not to be too fixed on how a review might best be carried out. However, we believe that the review should be conducted by the Attorney-General or by people appointed to undertake it on behalf of the Attorney-General. Whatever the form of the review, we think it important that it involve significant public consultation, including with disadvantaged groups, Indigenous communities and business organisations. The review should also involve consultation within government, including with local government and service providers.

Clark’s assignment of the review to the Victorian Parliament’s Scrutiny of Acts and Regulations Committee in 2011 was criticised by some because a majority of that body’s members were Coalition backbenchers. It didn’t help that this same majority ultimately expressed a preference for the Charter to be wound back to a parliamentary scrutiny law like the then recently enacted Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Seemingly in response to these criticisms, the Labor opposition in 2014 promised ‘a sufficiently resourced and independent reviewer’ for the next review. In 2015, the new Attorney-General Martin Pakula appointed a single reviewer, Michael Brett Young, who pointedly stated that he had been ‘appointed … as an independent reviewer’ and repeatedly referred to himself as such in public and in the report itself.

No-one doubts the capacity of Brett Young, a specialist in injury litigation and liquor licensing, the managing partner of Maurice Blackburn from 2002-2006 and the CEO of the Law Institute of Victoria for the Charter’s first eight years, to review a human rights statute. But what exactly makes him ‘independent’? Pakula did not reveal how he chose Brett Young, what criteria he used to narrow and choose the field of candidates or why he didn’t follow the common Victorian practice of appointing retired judges to conduct ad hoc reviews on legal matter, simply explaining that he ‘holds a solid understanding of the Charter through his time at the LIV’ and has ‘significant legal experience and broad knowledge of human rights issues’. Beyond his work background, we know nothing at all about Brett Young or what motivates him or what he plans to do next (his LinkedIn page currently describes him as a ‘legal consultant’.)

By contrast, the Scrutiny of Acts and Regulations Committee (SARC) has existed for decades, had previously inquired into rights issues such as equal opportunity and the right to silence, has its membership determined by Parliament and has its role and procedures set out in statute. Its members must be MPs (and, by convention, cannot be Ministers) who will remain in the role for the remainder of the term (unless they resign) and who elect the Chair. All its members have public political affiliations (including, in 2011, three Liberal, one National and three Labor members) and evident political career trajectories (including a Chair who was made a Minister in 2013 after Premier Baillieu resigned.)

SARC’s status as a parliamentary committee gives it access to the mechanisms Parliament uses to assert its independence from the executive. Like all of Parliament, SARC is funded by a special parliamentary appropriation bill and receives an annual budget (set by parliamentary officers) for its secretariat and separate grants for inquiries (used in the 2011 review used to hire three legal advisers, including myself.) It has the statutory powers of parliamentary committees to hold public hearings (SARC held a week of them during the 2011 review) that are transcribed by Hansard and are subject to parliamentary privilege. Its own deliberations are protected by privilege and it reports directly to Parliament (including any minority report, though there was none in 2011.) By contrast, Brett Young’s fee for reviewing the Charter was paid by the Attorney-General’s own Department of Justice and Regulation, which also provided the review’s secretariat. The 2015 report’s introduction includes lengthy acknowledgements of the support of the Department’s human rights and civil law policy units, as well as Melinda Richards SC, who the Attorney-General appointed Crown Counsel on the day after he announced the review. At the Attorney-General’s instruction, Brett Young provided the report to Pakula himself over two weeks before Pakula revealed it to the public.

Neither reviewer was independent from the review’s subject-matter. SARC was clearly poorly placed in 2011 to review its own Charter scrutiny role (something reflected in Pakula’s specific instruction to Brett Young to review that role, which had become controversial in light of SARC’s failure to adopt others’ criticisms of the previous government’s reforms to move-on laws). Brett Young faced the uncomfortable task of judging the softening position of the body he once managed on the Charter’s court intervention regime (in practice, an opportunity for human rights lawyers to receive briefs), which the Law Institute of Victoria had deemed ‘a burdensome requirement’ when Brett Young was its CEO but now considered a mere problem of ‘perceptions’ .

Naturally, like all law reform inquiries, the reviewers had a close eye to the politics of the possible. SARC’s unanimous report was clearly the product of compromise between the government and opposition members of the committee (laid bare in a tortured final section of its report outlining split ‘preferences’ on the two reform models recommended for adoption). This political dance failed, with Premier Baillieu speedily greeting the 2011 report with a hostile media release (dismissing SARC as a ‘cross-party committee’!) and his government left paralysed over the choice between two more extreme positions. Brett Young’s dance seems less likely to embarrass or split the government, for example his politically convenient take on the long-standing controversy of the regulatory exemption of the state’s parole boards from the Charter:

This will be a matter for the Government of the day to consider at the expiry of the current Regulations in 2023.

In short, neither Charter reviewer can fairly claim to be ‘independent’.

How to review a human rights law

Any effective review of any landmark all-of-government statute requires an appropriate evidence base with which to assess its actual operation. Not only was SARC’s 2011 review hampered by its lack of access to internal government processes, but the government’s own submission to the review came long after public submissions had closed (but not before a draft was leaked) and was limited to summarising public sources. SARC was sceptical of many of the claimed effects of the Charter, for example an assertion that the State Revenue Office’s policy of offering forgiving terms for repaying property tax debts to survivors of the 2009 bushfires was somehow due to the Charter. SARC’s critics, of course, have equal access to all of the evidence SARC received, for example the submission of the rights Commission that made the bushfire assertion, the public questioning of the Commissioner on this topic and her later published response. By contrast, Brett Young, who described a recommendation from the Bushfires Royal Commission that agencies treat ‘protection of human rights as the highest priority’ as an example of how ‘having a consistent human rights vision can effect on the way in which the organisation tackles challenging decisions’, received no public submissions from the government and held no public hearings. Rather, a note literally at the bottom of his report’s last page enigmatically reveals that ‘[g]overnment departments also provided information to inform the Review’.

The problem of evidence goes beyond the design of the review. In its 2011 review, SARC recommended that ‘the government develop a framework for assessing the benefits and costs of the regime for protecting and upholding human rights in Victoria.’ Despite this being one of the few significant recommendations the then government supported, the 2015 review seemingly received no information about the Charter’s costs and benefits and did not explore this question. Government consideration of the majority of SARC’s recommendations was deferred pending ‘further specific legal advice’ arising out of decisions like Momcilovic. Four years later, no such legal advice has been released. In the 2015 review, Brett Young confronted the complex question of the constitutionality of a key part of the Charter’s ‘dialogue’ mechanism, the Supreme Court’s capacity to declare that a law is incompatible with human rights. In Momcilovic, a narrow majority held that the declaration power was constitutional but divided on whether or not reasonable limits should play a role in the Court’s assessment of compatibility. Brett Young rejected a proposal to permit courts to actually invalidate incompatible laws, claiming that such a power ‘would certainly be found to be constitutionally invalid’ but was willing to recommend that the Supreme Court be required to incorporate reasonable limits into its assessment. He did not identify the constitutional law reasoning or advice supporting these recommendations.

The most suitable body with a capacity to gather evidence and assess complex legal arguments about major laws in a transparent manner is a law reform commission. And yet, both Clark and Pakula seemingly passed over the obvious Victorian candidate – its Law Reform Commission (currently led by retired judge Phillip Cummins) – when selecting a reviewer of the state’s human rights law. It’s not hard to see why. On the sole occasion when an Australian law reform body was asked to inquire into a human rights law, Tasmania’s Law Reform Institute, after a lengthy community consultation, called for Tasmania to enact a much more radical law than Victoria’s Charter, including socio-economic rights and a court power to suspend a statute’s operation. The eventual response of the Attorney-General (later Premier) was to initiate a second community consultation, this time preceded by a detailed ‘directions paper’ proposing a much weaker and narrower statute. Her chosen format was no accident. Back in 2005, Victoria’s Attorney-General Rob Hulls had similarly issued a detailed ‘statement of intent’ in advance of the Williams Committee’s consultation with the community (a consultation that somehow ended up matching Hulls’s preferred model in virtually every respect). The day before Brett Young’s report was tabled, Queensland’s Attorney-General announced that the question of whether or not to adopt a Charter-like statute in that state would be left to a parliamentary committee. In short, Australia’s governments simply aren’t willing to leave the assessments of the merits of rights protection laws to any body that is genuinely independent of the government, much less to the ‘community’.

Conclusion: why review a human rights law?

Like so much else about the Charter, public reviews of such laws are largely symbolic. Just as the ACT and Victoria (and, to an extent, the Commonwealth) showed that the ‘community consultation’ model is an effective way to convince some Australian parliaments to enact a modest human rights law, the likely purpose of statutory reviews of such laws is most likely to replicate that political process in order to expand that protection. Such was their effect in the ACT, where similar reviews have preceded periodic expansions of its Human Rights Act to include Victorian-style interpretation laws, a UK-style remedy provision and, most recently, the protection of some socio-economic rights.

In Victoria, though, multiple human rights groups told Brett Young that such reviews send the wrong symbol. The state’s own rights commission bemoaned that ‘[h]aving a review built into the Charter can create an impression that the existence of the Charter, or parts of the Charter, may be open for reconsideration or dilution’. Brett Young confirmed this none-too-subtle allusion to the 2011 review, revealing that ‘[m]any people also described to me how the four-year review had a chilling effect on the Charter’s implementation, particularly at the state government level.’

But Brett Young was not willing to characterise his own efforts in that way: ‘I experienced the benefits produced by this Review in engaging people within government and in the community about human rights and the work that the Charter is and should be doing.’ He recommended ‘a further review four years after the commencement of the proposed complaints and remedies provision’. Making the next review contingent on the implementation of the only important recommendation Brett Young made – to introduce a UK- and ACT-style remedies provision into Victoria’s Charter – is a canny move indeed. After all, if governments aren’t genuinely interested in others’ answers about their human rights laws, then they should simply stop asking for them.

Jeremy Gans is a Professor at the Melbourne Law School.

Suggested citation:  Jeremy Gans, ‘Reviewing Victoria’s Human Rights Charter’ on AUSPUBLAW (23 October 2015) <https://auspublaw.org/2015/10/reviewing-victorias-human-rights-charter/>