2015 report on the operation of the Charter of Human Rights and Responsibilities humanrightscommission.vic.gov.au Published by the Victorian Equal Opportunity and Human Rights Commission, Level 3, 204 Lygon Street, Carlton, Victoria 3053. August 2016 Contact us Enquiry Line 1300 292 153 or (03) 9032 3583 Fax 1300 891 858 Hearing impaired (TTY) 1300 289 621 Interpreters 1300 152 494 Email [email protected] Website humanrightscommission.vic.gov.au 2015 report on the operation of the Charter of Human Rights and Responsibilities Copyright © State of Victoria 2016 This publication is copyright. No part of it may be reproduced by any process except with permission from the Victorian Equal Opportunity and Human Rights Commission (the Commission) or in accordance with the Copyright Act 1968. On request the Commission may give permission for this material to be reproduced provided it is for a purpose consistent with the objectives of the Equal Opportunity Act 2010, the Charter of Human RIghts and Responsibilities Act 2006 or the Racial and Religious Tolerance Act 2001 and the Commission is acknowledged as the source. Contact [email protected] for permission to reproduce material from the publication. Accessible formats This document is available for downloading from our website at humanrightscommission.vic.gov.au/resources in PDF and RTF. Please contact the Commission if you require other accessible formats. Privacy The Commission complies with Victorian privacy laws and the confidentiality provisions of the Equal Opportunity Act. Our privacy policy is available online at humanrightscommission.vic.gov.au/privacy or by contacting us. Disclaimer This information is intended as a guide only. It is not a substitute for legal advice. Ordered to be published PP No 198, Session 2014-16 Printed on Precision ISBN 978-0-9922762-7-0 Contents Foreword 1 Introduction 2 Chapter 1: The Charter in courts and tribunals 5 Part one: The Charter in court and tribunal decisions 5 Part two: Promoting the right to a fair hearing in courts and tribunals 18 Chapter 2: The Charter in law-making 20 Part one: Positive law reform 21 Part two: Bills raising significant human rights issues 23 Part three: The work of Parliament in debating and analysing human rights 26 Part four: The Scrutiny of Acts and Regulations Committee 27 Chapter 3: Human rights oversight, complaint handling and education 32 Part one: Oversight and accountability 32 Part two: Human rights complaints and complaint mechanisms 35 Part three: Human rights resources and education 36 Chapter 4: The right to equality 39 Part one: Gender equality 39 Part two: LGBTI equality 42 Part three: Equality for people with disabilities 47 Part four: Racial and religious equality 55 Chapter 5: The protection of families and children 57 Part one: The protection of families – section 17(1) 57 Part two: The protection of children – section 17(2) 59 Chapter 6: Cultural rights 72 Part one: Cultural rights – section 19(1) 73 Part two: Aboriginal cultural rights – section 19(2) 76 Contents continued Chapter 7: Liberty and security 85 Part one: The right to liberty – section 21 85 Part two: Humane treatment when deprived of liberty – section 22 88 Part three: The right to security – section 21(1) 94 Part four: Promoting the right to security 110 Appendix: Consultation 112 Foreword The Victorian Equal Opportunity and Human This report highlights a number of troubling human Rights Commission (the Commission) is pleased rights concerns in Victoria in 2015. Many of these to present the 2015 report on the operation of the issues are not new. They are systemic issues that Charter of Human Rights and Responsibilities Act have a significant and ongoing impact on the rights 2006 (the Charter). of everyday Victorians, including children and young people, women, people with disabilities, The 2015 report focuses on the protection and LGBTI Victorians and Aboriginal and Torres Strait promotion of four fundamental rights under the Islander Victorians. Charter: the right to equality, the right to protection of families and children, cultural rights, and the Strong human rights leadership and a sustained right to liberty and security. commitment to change are critical to tackle many of these complex human rights issues. While it Human rights belong to all Victorians. However, the is disheartening to hear the same issues from importance of having human rights protections year-to-year, the report profiles the important is often of particular significance for the most contributions of community organisations in shining vulnerable in our community. Protecting human a light on human rights issues, and the diverse rights not only leads to better outcomes for work by public authorities to promote and respond individuals, it strengthens the Victorian community to human rights in Victoria. for everyone. There have been some great examples of The 2015 reporting year coincided with the Eight leadership in advancing gender equality across Year Review of the Charter, enabling deeper government: Victoria Police commissioned an reflection about the effectiveness and operation of independent review into sex discrimination the Charter. In the past few years, the Commission and sexual harassment, including predatory has observed a declining investment in human behaviour, within the organisation; the Department rights education and the development of a human of Environment, Land, Water and Planning rights culture within government. demonstrated a genuine commitment to flexible We know that there is more that can be done work practices; and the Victorian Government to ensure that the Charter is embedded into appointed Victoria’s first Gender and Sexuality government policies, programs and practices. We Commissioner and established an LGBTI taskforce. also know that there is more to be done to make We would like to thank everyone who contributed Victorians aware of their rights and how to exercise to this important report, including state government them. The Commission will continue to work closely departments and statutory agencies, local with public authorities and the community to councils, courts and tribunals, and community increase the use and understanding of the Charter, organisations. and to ensure that human rights drive systemic outcomes. John Searle Kristen Hilton Chairperson Commissioner Foreword 1 Introduction About this report Overview The 2015 Charter Report includes the following The Charter of Human Rights and Responsibilities chapters: Act 2006 (the Charter) aims to protect and promote • Chapter one considers the use and human rights for all Victorians. It recognises that: interpretation of the Charter in Victorian courts • human rights are essential in a democratic and and tribunals in 2015. inclusive society • Chapter two considers the role of the Charter • human rights belong to all people without in law-making, including consideration of the discrimination Scrutiny of Acts and Regulations Committee process. • the diversity of the people of Victoria enhances our community • Chapter three considers human rights oversight and accountability, human rights complaints, • human rights come with responsibilities and human rights resources and education. • human rights have a special importance for considers the right to equality. Aboriginal Victorians.1 • Chapter four considers the right to protection of This is the Commission’s ninth annual report on the • Chapter five families and children. operation of the Charter to the Victorian Attorney- General. The Commission’s report on the Charter • Chapter six considers cultural rights (including must examine: Aboriginal cultural rights). • the operation of the Charter, including its • Chapter seven considers the right to liberty interaction with other laws and security (as well as the right to humane treatment when deprived of liberty). • any declarations of inconsistent interpretation made by the courts • any override declarations made by the Victorian Consultation Parliament.2 As with previous reporting years, the Commission This report examines the operation of the Charter consulted with all Victorian government in the 2015 calendar year. It reflects the way the departments, Victorian courts and tribunals, Charter has been operating in the courts and and selected statutory agencies and community tribunals, in parliament, in the work of public organisations to inform the content of the report. authorities and in the community. This year, we also asked all local councils to provide contributions for the main report. A standalone report on the operation of the Charter in local government in 2013 and 2014 can be found on the Commission’s website. We also gave relevant government departments and agencies an opportunity to respond to specific 1 Charter of Human Rights and Responsibilities Act human rights concerns that were raised by 2006 (Vic), preamble. community organisations and statutory agencies 2 Ibid s 41(a). 2 2015 Report on the Operation of the Charter of Human Rights and Responsibilities in consultation for the report. These responses are • the Supreme Court has the power to declare reflected in chapters one to four of this report. that a law is inconsistent with human rights but does not have the power to strike it down.7 Appendix A includes a full list of organisations we consulted with. The Commission thanks these organisations for their ongoing contribution to this There are 20 fundamental rights recognised report. in the Charter: We note that it is