2019 report on the operation of the Charter of Human Rights and Responsibilities Published by the Victorian Equal Opportunity and Human Rights Commission, Level 3, 204 Lygon Street, Carlton, Victoria 3053. November 2020. Contact us Enquiry Line 1300 292 153 or (03) 9032 3583 Fax 1300 891 858 NRS Voice Relay 1300 555 727 then quote 1300 292 153 Interpreters 1300 152 494 Live chat livechat.humanrights.vic.gov.au Email [email protected] Web humanrights.vic.gov.au The Victorian Equal Opportunity and Human Rights Commission acknowledges and celebrates the Traditional Owners of the lands throughout Victoria and we pay our respects to their Elders, past and present. This work, 2019 report on the operation of the Charter of Human Rights and Responsibilities, is licenced under a Creative Common Attribution 4.0 licence. 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Ordered to be published. PP 179, Session 2018-2020. ISBN 978-0-6480881-9-6 2019 report on the operation of the Charter of Human Rights and Responsibilities Letter to the Attorney-General November 2020 Dear Attorney-General On behalf of the Victorian Equal Opportunity and Human Rights Commission, it is with pleasure that I present to you our thirteenth annual report on the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) covering the 2019 calendar year. In accordance with section 41(a)(i) of the Charter this report examines the operation of the Charter, including its interaction with other statutes and the common law. I am pleased to report that during 2019 there were no declarations of inconsistent interpretation made by the Supreme Court of Victoria nor were there any override declarations passed by the Victorian Parliament. Accordingly, it has not been necessary for this report to examine matters under section 41(a)(ii) and (iii) of the Charter. Yours sincerely Kristen Hilton Victorian Equal Opportunity and Human Rights Commissioner 2 2019 REPORT ON THE OPERATION OF THE CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES Contents Commissioner’s message 4 Human rights in Victoria 8 Charter rights 8 Charter responsibilities 9 Human rights 2019 10 Aboriginal incarceration and deaths in custody 12 Gender equality and diversity 16 Treaty and self determination 18 Racial and religious tolerance 20 Human rights in courts and tribunals 22 Systemic racism, racial profiling, Aboriginal deaths in custody 24 Balancing the right to freedom of expression with other rights 28 The scope of the right to humane treatment when deprived of liberty 32 Human rights in lawmaking 34 Legislative activity 34 Introduction of historic gender equality legislation 35 Inclusive birth certificate reforms 36 Key bills 40 A culture of human rights 44 Charter education and public authorities 46 Tracking a human rights culture 50 Appendix 54 Cases raising or considering the Charter 54 3 Commissioner’s message the scope of Deputy State Coroner English’s inquest into the death in police custody of Yorta Yorta woman Tanya Day – leading to the Coroner's examination of how systemic racism contributed to Tanya Day's death. This case highlights the need for all public authorities to address systems, structures and practices that result in racial discrimination against Aboriginal people. Tanya Day’s death in custody also highlighted the discriminatory impacts of Victoria’s In 2019, the Victorian Parliament made public drunkenness laws, resulting in significant progress towards protecting the Victorian Government announcing the human rights of Victorians. Our that it will decriminalise public state led the nation by being the first drunkenness. I commend Ms Day’s jurisdiction to commit to a treaty family on their tireless advocacy process with Aboriginal peoples on behalf of their mother and through legislation. This process grandmother. This courageous work provides a practical means by which will result in law reform which may self-determination may be realised by change the course of people’s lives Aboriginal Victorians. The Victorian for generations to come. Parliament also passed its landmark gender equality law. This legislation During 2019, the Commission aims to promote and facilitate the continued to partner with public achievement of gender equality and authorities to strengthen the human improvement in the status of women. rights culture in Victorian public Parliament also passed amendments sector organisations. The Commission to our birth certificate laws. These delivered tailored education services amendments recognise that every and online Charter education, and Victorian – including those who are supported leaders to embed human trans and gender diverse – should rights within their organisations. have the right to express their true We built on our Culture Indicators identity free from discrimination. During Framework, designed to track progress these reform processes the Victorian in the growth of a human rights culture Parliament actively engaged with the and to give public authorities the tools Charter and considered human rights they need to achieve such growth. The issues during parliamentary debates Victorian Public Sector Commission’s and through the lawmaking process. 2019 People Matter Survey indicates that many public sector staff and Within courts and tribunals, the organisations value human rights Charter guided outcomes for and understand how they apply to individuals and the equal operation of their work. the justice system. Notably, it informed 4 2019 REPORT ON THE OPERATION OF THE CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES Although this report covers the 2019 COVID-19 has highlighted the need calendar year, it is published during to strengthen the Charter’s ability to a time of significant human rights provide individual redress. It has also challenges as a result of the COVID-19 showed just how important the rights pandemic. In times of crisis, human to education, health and housing are, rights are more important than ever. and that these rights too should be The Charter has continued to operate included in our rights framework. during this period, and we have seen evidence of how it has been Through this time and into the considered and applied in a range recovery we will continue to work of emergency measures. The careful closely with the government, public consideration given to human rights authorities and the community to in the statement of compatibility for help them understand their human the COVID-19 emergency measures rights obligations and how competing is an example of the Charter in action. rights may be balanced against each Many of the emergency measures other and with the need to protect imposed serious limitations on public safety. We will also continue Victorians’ freedom of movement, to listen to the needs and experience assembly and association. In our of Victorians, provide them with an monitoring of these limitations we avenue of redress where we can and have advocated to ensure that the play our in role in rebuilding a fairer restrictions are justified, proportionate and more equal Victoria. and only in place for as long as necessary. We have also advocated for transparency in decision-making. This has been an exercise in real time and with very real consequences for Victorians in trying balance the right to life with other rights such as the right to movement, liberty and privacy. Kristen Hilton This is the value of our Charter. It is not just a compliance tool or a risk Victorian Equal Opportunity mitigation strategy. It is a legal and and Human Rights Commissioner ethical frame which animates the rights and experiences of everyday Victorians – those who are caring for others, those who are unwell trying to access health care, those who have been detained, those trying to have meaningful contact with loved ones. 5 6 2019 REPORT ON THE OPERATION OF THE CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES 7 Human rights in Victoria Charter rights Human rights are a basic entitlement of every one of us, regardless of our background, culture, sex, age or what we believe. The Charter enshrines more than 20 civil, political and cultural rights into Victorian law. Section 8 The right to recognition and equality before the law Section 9 The right to life The right to protection from torture and cruel, inhuman or degrading Section 10 treatment Section 11 The right to freedom from forced work Section 12 The right to freedom of movement Section 13 The right to privacy and reputation Section 14 The right to freedom of thought, conscience, religion and belief Section 15 The right to freedom of expression Section