On 19 April 2011, the Scrutiny of Acts and Regulations Committee of the Parliament of Victoria was tasked with reviewing the first four years of the Charter of Human Rights and Responsibilities Act 2006. The joint committee of the Legislative Council and Legislative Assembly was composed of four government members and three opposition members. On 14 September 2011, the Committee tabled its Final Report and recommended that the Charter be retained, but that the power of judicial review undergo important change. This report comes at a time of great moment for the Charter, which was reviewed in the High Court of Australia for the first time in the challenging decision of Momcilovic v The Queen  HCA 34.
Victoria’s Charter is an instance of the ‘new commonwealth model of bills of rights’. A member of Parliament who introduces a government or private member’s bill must lay before Parliament a statement of the bill’s compatibility with the Charter (s. 28). In addition, the Scrutiny of Acts and Regulations Committee must consider the compatibility of and report on every bill before Parliament.
Once a bill is enacted into law, the Charter provides that all statutory provisions must, ‘so far as it is possible to do so consistently with their purpose’, be interpreted in a way that is compatible with the Charter (s. 32). The Supreme Court and Court of Appeal are empowered to declare that the interpretation of a statutory provision, even guided by s. 32, is inconsistent with the Charter. Without affecting the validity of the statutory provision, such declarations nevertheless require the responsible Minister to prepare a written response to the declaration and provide a copy of that response to be laid before each House of Parliament and published in the Government Gazette (s. 37). Either in response to a declaration or otherwise, the Parliament of Victoria ‘may expressly declare in an Act that that Act … has effect despite being incompatible with’ the Charter (s. 31).
The Charter provides for two parliamentary reviews, after four and eight years (s. 44). The September 2011 committee report is the fruit of the first of those reviews.
Addressed by the report are the following points, which the Charter requires the reviewing parliamentary committee to address:
- whether additional human rights should be included (Recommendations 1 and 2: consideration should be given whether to include additional rights contained in the International Covenant on Civil and Political Rights, but not other rights);
- whether the right to self-determination should be included (Recommendation 3: no, but programmes to foster improved outcomes for Victoria’s indigenous peoples should continue to be developed);
- whether regular auditing of public authorities to assess compliance with human rights should be made mandatory (Recommendation 4: no);
- whether further provision should be made with respect to proceedings that may be brought or remedies that may be awarded in relation to acts or decisions of public authorities made unlawful because of the Charter (Recommendations 5-8: internal complaints procedures, including access to Ombudsmen, should be strengthened, but no changes should be made to more formal legal proceedings).
Interesting as the recommendations in reply to these questions are, the report merits attention for a series of other recommendations pursued by the committee and of special interest to the ongoing review of the Human Rights Act 1998.
The committee recommended that the provision empowering Parliament to enact an ‘incompatibility’ declaration be repealed, primarily on account of its redundancy: the absence of a judicial power to invalidate legislation renders the need for an express declaration of incompatibility unnecessary (Recommendation 21). Redundancy also motivated the committee’s recommendation that the judicial interpretation provision be either repealed because it tracks ‘common law principles of statutory interpretation’ or, to similar effect, ‘redrafted in a manner that … clarifies that it is limited to traditional approaches’ (Recommendation 24). In short, the British courts’ approach to interpretation under the Human Rights Act 1998 was rejected.
Public lawyers will also be interested in Recommendation 31 pertaining to judicial declarations of incompatibility (s. 36), as are also mandated under the Human Rights Act 1998 (UK):
If Charter s. 36 is retained, then [the committee] recommends that consideration should be given to amending it to give an independent non-judicial body (such as [the Victorian Equal Opportunity and Human Rights Commission]) the functions of identifying statutory provisions that the Supreme Court has interpreted in a way that limits a human right and forwarding those provisions to a parliamentary committee (such as [the present committee]) for reporting to the Parliament, as well as to the Minister responsible for the statutory provision.
In short, the power to declare statutory provisions incompatible with the Charter could be removed from the judicial arena and awarded to another body.
Of great significance was Recommendation 32, which provided that, if the conduct of public authorities remains subject to judicial review under the Charter, the Charter be amended to state that ‘except where a statute expressly provides otherwise, nothing in Charter … creates in any person any legal right, gives rise to any civil cause of action or affects the rights or liabilities of a public authority’.
In the concluding chapter of the report, the committee reviewed three possible options for reform:
- the Charter and judicial review under the Charter be maintained, subject to the recommendations in the report;
- the Charter be maintained but judicial review under the Charter cease; or
- the Charter be repealed.
A minority of the committee recommended the first option; a majority the second. Neither recommended the status quo.
Grégoire Webber is Lecturer in Law at the London School of Economics and Political Science.