Parliament & Human Rights

Scrutiny of Parliament and the Charter of Rights and Responsibilities

The Scrutiny of Acts and Regulations (SARC) is a joint investigatory committee of the Parliament of Victoria. It has members from the Government and Opposition and from the two houses. Under the Human Rights Charter the Committee is required to consider and report to Parliament of every act and statutory rule in the context of the Charter and compatibility with the Charter of Rights and Responsibility.

So what are human rights? As the Charter notes in the preamble,

On behalf of the people of Victoria the Parliament enacts this Charter, recognising that all people are born free and equal in dignity and rights.

Human rights are therefore inherent rights of humans and not granted by Government. According to this idea, human rights trump all other values such as custom, tradition, hierarchy and are the inalienable rights of humans. Human rights have three qualities they are natural, equal and universal.

History of Human Rights

The concept of human rights has its origins relatively recently in the 18th Century European Enlightenment. It was clearly articulated in the American Declaration of Independence, which declared “all men as equal.” However the greatest impact on western thought was the French Revolution’s Déclaration des droits de l’Homme et du citoyen (Declaration of Rights of Man and Citizen) 1789

The articulation of such a declaration of “les droits naturels, inaliénables et sacrés de l’homme” (the natural, unalienable, and sacred rights of man), in 18th Century society was revolutionary. Even though many people remained excluded including people without property, slaves and women. However it remains surprising that people living in societies built on slavery, subordination and a belief in a divine order could imagine that men and in some cases women could be equals.

In a recent book by Lynn Hunt Inventing Human Rights she argued that these 18th Century individuals developed a new sense of sympathy or what we in the 20th Century call empathy for the autonomy and well being of other people. She also noted the emergence of a new sense of selfhood. Author Madame du Chatelet did not hesitate to undress in front of her male servants. For Ms Chatelet to eventually appreciate that people of different classes had selves and bodies like her own was a radical shift in consciousness.

Lynn Hunt argued that empathy was also a result of a greater sense separateness and autonomy of human bodies. So that people became to respect the boundary between their body and that of the other. Your body is yours and my body is mine. The use of the handkerchief demonstrated a greater respect for body integrity between the individual and the other. People began to use food utensils and previously acceptable behaviour like throwing food on the floor and wiping snot on clothing was replaced by repulsion. She argues that a new sense of the other developed over that period. The reading of novels she claimed helped contribute in a development of empathy across class, sex and national lines.

Torture ended because the traditional framework of pain and personhood fell apart, to be replaced, bit by bit, by a new framework, in which individuals owned their own bodies, had rights to their separateness and to bodily inviolability, and recognised in other people the same passions, sentiments and sympathies as in themselves.

The Victorian Charter

The American and French declarations unleashed a logic that expanded rights to all sorts of individuals such minority religions, slaves and women. Through the 19th Century the idea of rights became increasingly attached to particular nations and ethnicities. They thus lost their universal and equal quality. It took two world wars to restore the importance of the struggle for universal human rights with the 1948 Universal Declaration of Human Rights.

The Victorian Charter is part of this tradition of natural human rights and it seeks to protect the rights that are the most important to an open and free democracy. Generally they have been taken from the International Covenant on Civil and Political Rights, although some were modified or omitted. The two most important departures from the covenant are the modification on the right to life and the exclusion of the right to self-determination.

These rights must be considered in the context that the law includes a review and possible change in four years and then eight years.

This would enable the inclusion of a broader range of human rights as well consideration of other issues after reviewing the actual operation of the Charter.

These reviews demonstrate that the Charter is not designed to establish an unchangeable set of human rights. Some critics see the fact that the Charter is a law and not constitutional simply as a weakness. As a law it can be modified or even repealed by Parliament. The question is whether any future government will have the political will to get rid of the Charter and that will depend how well it becomes imbedded in our community.

Only being a law is also a strength as it allows for incremental change articulating further human rights and modifying others. So we don’t end up with legacies such “as the right of the people to keep and bear arms”, which is in the second amendment of the US constitution and remains an impediment to comprehensive gun reform.

Another strength is that the Charter allows for the extension of rights by prescribing at least two four year reviews. The first review specifically has to review the act and look at whether further rights be incorporated including the right to self-determination and rights contained in the International Covenant on Economic, Social and Cultural Rights should be included in the Charter.

The Role of Parliament

However for the Charter to work it is important that the broader community has its own developing sense of human rights. Laws should be debated in Parliament and judged according to the value the broader community places on human rights. This would strengthen the law making process through the work of parliamentary committees, community interaction and the political system.

The rights in the Charter are also not absolute. The rights are limited to individuals; they deal with Victorian laws and the Victorian public sector. The Charter provides an important role for the Victorian Parliament in balancing conflicting rights and the public interest.

7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including –

• a) the nature of the right; and

• b) the importance of the purpose of the limitation; and

• c) the nature and extent of the limitation; and

• d) the relationship between the limitation and its purpose; and

• e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

The Role of Scrutiny

The role of SARC is critical to this process because it informs the Parliament of human rights after consideration of the laws and regulations. SARC can do this in a very public way through public hearings and in its published alert digest. SARC also allows public access to this process and provides a level of transparency.

Ultimately it will be the Parliament that will make crucial decisions on behalf of the community on how to best balance rights against each other, protect Victorians from crime and how to distribute funds from competing demands. Ensuing the broader community is aware and involved in debates around human rights is a legitimate role for SARC.

In balancing rights it is vital that their emerges a culture of empathy for the other. The Charter is not just a list of issues to tick off nor should every action by Government trigger the reasonable limits clause. There will be tensions and some have already emerged with the work of SARC in the first few months of the Charter.

In setting out 7(2) a to e the Charter explicitly outlines how Parliament is to balance rights with other community interests. This provision provides transparency for the community. When a bill is introduced into the Parliament it will have to be accompanied by a Statement of Compatibility, which sets out the reasons why the bill complies or fails to comply with the Charter. If the Minister or senior public servants want to justify the provisions of a bill they have to argue why rights can be limited.

Human Rights in recent bills

It does not follow that SARC will accept these arguments. In a recent bill on income splitting in the Emergency Service Superannuation Scheme in which the bill used:

The purpose of the adoption by the Bill of the definition of 'spouse' under the Commonwealth Act is to ensure consistency with the Commonwealth Act …

The Bill does not enable contribution splitting between same-sex partners who live with their partner on a genuine domestic basis while facilitating contribution splitting between heterosexual married or de facto couples….

Having concluded that the amendments are incompatible with the Charter the Committee has considered whether even the strongest and most cogent section 7(2) analysis (reasonable limitations) can ever conclude that a law which discriminates on the basis of sexual orientation …

The Committee then considered the question of the circumstances that would have to exist before ‘the exceptional circumstances’ threshold could ever be crossed so as to engage the ‘override provisions’ of the Charter….

The Minister’s response provided an interesting interpretation of 7(2);

Counsel advised that achieving consistency with a Commonwealth law may be a sufficiently important objective to justify limiting human rights, with this being assessed on a case by case basis.

SARC provides a degree of transparency by having sought an explanation for the use of 7(2). It is up to Parliament to determine if that explanation is satisfactory. The bill is yet to be debated in Parliament.
SARC must advise the parliament on whether each bill is consistent with human rights. It is therefore important that SARC informs parliament and parliamentarians of its concerns. SARC also establishes a dialogue with the Minister by outlining the Committee’s concerns and seeking a further elaboration of the arguments.

There were also concerns about the Compatibility Statement for the Infertility Treatment Amend Bill 2007 claimed there were no human rights issues.

“In respect to this Bill, the Committee considers that the Parliament would have been better informed with at least a brief discussion concerning the pivotal question of when human rights may be limited within the meaning of section 7(2) of the Charter.

SARC believes that if it considers a statement inadequate it will draw this to the attention to the Minister.

Conclusion

The Charter recognises the power of the Parliament to balance rights and community interests and even allows Parliament to override the rights listed in the Charter.

The question is given the ability of Parliament to balance or override rights do we actually have a toothless tiger. I believe that it depends on the broader community support for human rights. In Canada a similar mechanism to the override has rarely been used because of the political costs.

The rights model Victoria has established demand a dialogue within and between various arms of Government and the broader community. It seeks to avoid litigation and allows for incremental additions. To protect Victorian rights will demands a vigilant parliament with strong scrutiny but also a strong and organised human rights constituency in the community.