The Victorian Attorney-General, Martin Pakula, has tabled in parliament the report of the 2015 Review of the Charter of Human Rights. The review was conducted by Michael Brett Young, and took into account over 100 public submissions from individuals and community groups.
The most significant recommendations relate to enforcement of the Charter. Brett Young says the current Charter is “flawed” because it “does not include an ability to enforce the standards that it sets”. He notes: “Providing for human rights without corresponding remedies sends mixed messages to the public sector and to the community about the importance of those rights.”
One proposal is to create a stand-alone cause of action for breaches of the Charter. At the moment, section 39 allows people to raise a breach of the Charter only as part of a separate legal proceeding. People who can’t “piggy-back” their human rights case on top of a separate claim are left out. The Review recommends giving legal standing to “any human being who claims a public authority has acted, or is proposing to act, incompatibly with their human rights.”
The Review also recommends expanding the remedies that VCAT and the courts can provide for breaches of the Charter. It recommends they “should have power to grant any relief or remedy that [they] considers just and appropriate, excluding the power to award damages”. The focus should be on practical remedies, such as injunctions, that would improve compliance with Charter rights.
However, the Review also recommended: “Making damages a remedy under the Charter should be considered only as an incremental step once the direct cause of action is established and there is experience of it in operation. In Chapter 8, I recommend a further review of the Charter. That review should consider the inclusion of damages as a remedy.”
The long report includes a total of 52 recommendations, including strengthening the parliamentary review of bills and making the process more transparent; allowing the Minister to revoke a local council by-law that is incompatible with human rights; and ensuring that allegations of serious human rights breaches by police can be independently investigated.
It also specifically recommends the inclusion of a new Charter right: “that every person born in Victoria has the right to a name and to be registered as soon as practicable after birth.” This was in response to a campaign by the Castan Centre for Human Rights to improve the rate of birth registration in Indigenous communities
The Victorian Government has not yet responded to the recommendations.