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International Commission of Jurists in Victoria

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International Commission of Jurists in Victoria AUSTRALIAN FOUNDING PRESIDENT: THE THE RT. HON. SIR OWEN DIXON PC, OM, GCMG INTERNATIONAL COMMISSION CHIEF JUSTICE OF AUSTRALIA VICTORIAN PRESIDENT: OF JURISTS HON. JUSTICE LEX LASRY VICE-PRESIDENTS: ON USTICE LIZABETH OLLINGWORTH IN H . J E H HIS HONOUR JUDGE MARK TAFT www.icj.org VICTORIA VICTORIAN CHAIR: www.icj-aust.org.au GLENN MCGOWAN SC VICTORIAN SECRETARY-GENERAL: www.vic.icj-aust.org.au MELANIE SZYDZIK ASSISTANT SECRETARY-GENERAL: Secretariat: PHILLIPA MCCORMACK [email protected] TREASURER: SARA LAW 9225 8414 List R, 205 William St COUNCIL MEMBERS: Melbourne 3000 HON. JUSTICE BERNARD BONGIORNO AO HON. JUSTICE TONY PAGONE Dx 91 HON. JUSTICE PETER VICKERY HIS HONOUR IAN GRAY CM HON. ALASTAIR NICHOLSON AO, RFD, QC HON. ALAN GOLDBERG AO, QC HON SALLY BROWN AM Mr Edward O’Donohue, MLC BRIND ZICHY-WOINARSKI QC Chairperson DR KRISTINE HANSCOMBE SC MICHAEL WYLES SC Scrutiny of Acts and Regulations Committee JOHN GIBSON TOM DANOS Parliament House RICHARD WILSON TOBY SHNOOKAL Spring Street DEBRA COOMBS EAST MELBOURNE VIC 3002 RUPERT WATTERS DR GEORGIA KING-SIEM MICHAEL BORSKY Email: [email protected] LAURA HELM ERIN HILL PATRICIA ATHANASIADIS JOLIEN QUISPEL EMMA STONE MATTHEW ALBERT 30 June 2011 SUBMISSION TO THE 2011 REVIEW OF THE CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 A. Introduction The Governor in Council, by referral of terms of reference under the Parliamentary Committees Act 2003, has required the Scrutiny of Acts and Regulations Committee (Committee) to conduct a review of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Charter).1 Section 44(2) of the 1 See notice issued on 19 April 2011 published in the Victoria Government Gazette. Source: http://www.gazette.vic.gov.au/gazette/Gazettes2011/GG2011S128.pdf ________________________________________________________________________________________________________________________________________________ THE INTERNATIONAL COMMISSION OF JURISTS, FOUNDED IN BERLIN IN 1952, IS AN INTERNATIONAL NON-GOVERNMENTAL ORGANIZATION, DEDICATED TO THE DEFENCE OF JUDICIAL INDEPENDENCE AND HUMAN RIGHTS THROUGH THE RULE OF LAW, WITH CONSULTATIVE STATUS TO THE UNITED NATIONS, UNESCO, THE COUNCIL OF EUROPE AND THE ORGANIZATION OF AFRICAN UNITY. IT HAS 82 AUTONOMOUS NATIONAL SECTIONS AND AFFILIATED LEGAL ORGANIZATIONS IN 62 COUNTRIES. ITS HEADQUARTERS ARE IN GENEVA, SWITZERLAND. ITS CENTRE FOR THE INDEPENDENCE OF JUDGES AND LAWYERS WAS FOUNDED IN 1978. AWARDED THE FIRST EUROPEAN HUMAN RIGHTS PRIZE (1980), THE WATELER PEACE PRIZE (1984), THE ERASMUS PRIZE (1989) AND THE UNITED NATIONS HUMAN RIGHTS AWARD (1993). THE AUSTRALIAN SECTION OF THE INTERNATIONAL COMMISSION OF JURISTS WAS FOUNDED IN 1958 BY EMINENT JURISTS INCLUDING VICTORIANS SIR OWEN DIXON (CHIEF JUSTICE OF AUSTRALIA), EUGENE GORMAN QC, MAURICE ASHKANASY QC, RICHARD EGGLESTON QC & KEITH AICKIN QC. MEMBERSHIP IS OPEN TO ALL LAWYERS SUBSCRIBING TO ITS TENETS. 2 Charter requires a review of certain matters which have been included in the Committee’s terms of reference. The Committee has invited written submissions from the community.2 In calling for public comment it has welcomed submissions addressing one, multiple or all terms of reference of its inquiry. The Committee will then conduct hearings in late July and early August. It has been asked by the Governor to report to Parliament no later than 1 October 2011, by which date the required review of the matters mandated by s.44(2) of the Charter is to be completed.3 B. About the International Commission of Jurists The ICJ is an international non-governmental organization, dedicated to the primacy, coherence and implementation of international law and principles that advance human rights and the defence of judicial independence through the rule of law.4 The ICJ Victoria is pleased to make this written submission to the Committee and would be pleased to give evidence at the Committee’s hearings in late July and early August. C. ICJ Victoria’s submission5 The ICJ Victoria’s written submission to the Committee addresses a number of principal matters and its recommendations are highlighted with accompanying commentary below. In doing so it draws attention to the recent significant inquiries and reports concerning human rights and responsibilities in Australia, namely: The Report of the National Human Rights Consultation (2009); The five-year review of the ACT Human Rights Act (2009); and The Report of the Victorian Human Rights Consultation Committee (2005). In Victoria, the ICJ Victoria also draws attention to: 2 Appendix A is SARC’s advertised request for submissions. Items 1, 2, 3 and 4 are mandated by s.44(2) of the Charter. Terms 5, 6 and 7 are additional issues the Governor in Council required SARC to review. 3 Appendix B is section 44 of the Charter. 4 About the ICJ: The International Commission of Jurists was founded in Berlin in 1952 and has received a number of leading international human rights awards recognising its legal contribution to the promotion and development of international human rights standards and practice. These include the first European Human Rights Prize by the Council of Europe in 1980, the Wateler Peace Prize by the Carnegie Foundation in 1984, the Erasmus Prize by the Paremium Erasmianum Foundation in 1989 and the United Nations Award for Human Rights in 1993.The ICJ was designated in 1987 as a Peace Messenger by the United Nations General Assembly as part of its International Year of Peace. The ICJ holds consultative status with the United Nations Economic and Social Council, the United Nations Educational, Scientific and Cultural Organisation, the Council of Europe, and the African Union. The ICJ also maintains cooperative relations with various bodies of the Organisation of American States. The Australian section of the International Commission of Jurists was founded in 1958 by eminent jurists including Victorians Sir Owen Dixon (Chief Justice of Australia), Eugene Gorman QC, Maurice Ashkanasy QC, Richard Eggleston QC & Keith Aickin QC. Membership is open to all lawyers subscribing to its tenets. 5 The ICJ Victoria notes that all submissions are public documents unless confidentiality is requested. ICJ Victoria makes this submission available as a public document. 3 The Annual reports on the Charter prepared by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC); and The catalogue of Case Studies from Victoria, prepared by the Human Rights Law Centre on how human rights legislation can promote dignity and address disadvantage. Those submissions and reports are commended to the Committee, all of which show not only the need for but, importantly to the Committee’s review, the public benefit in proper legal protection of human rights. In the short period since it has been in legal force the Charter has made a significant impact both culturally within Victorian public administration and also in terms of the rights that people can actually enjoy. The Charter has begun to demonstrate in practice the importance, in a modern democratic society, that as a community the rights of all people in society are recognised and protected by the law. Even in a democratic society that has a strong commitment to the ideals of rights and freedoms under the rule of law, the Charter has shown to have advanced the public benefit by guiding the organs of government, the Legislature, the Executive and the Judiciary in the discharge of their important responsibilities. Without a form of legal instrument, like the Charter, which firstly sets out what those rights are and then contains mechanisms for protecting them that apply to each organ of government according to the function that it performs in society: The real risk exists that people’s basic rights are neither recognised nor adequately protected when they are overlooked by those in positions of responsibility and authority; and Neither the law nor the institutions of democratic government provide a secure means for remedying problems which do arise for people whose basic human rights are impacted by the actions (or inactions) and decisions of government. Contents Terms of Reference 1: Inclusion of additional human rights in the Charter .............................................................................. 4 Terms of Reference 2: Inclusion of the right to self-determination ........................................................................................... 8 Term of Reference 3: Mandatory Regular Auditing of Public Authorities .............................................................................. 13 Term of Reference 4: Access to effective remedies under the Charter .................................................................................... 15 Term of Reference 5 (a) and (b): Impact of the Charter on the development and drafting of statutory provisions and consideration of statutory provisions by Parliament .................................................................................................................. 22 Term of Reference 5 (c): Impact of the Charter on the provision of services, and the performance of other functions, by public authorities ....................................................................................................................................................................... 26 Term of Reference 5 (d): Litigation and the roles and functioning of courts and tribunals ..................................................... 29 Why strong human rights protections are
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