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Tasmanian Human Rights Charter Consultation (2010)

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Tasmanian Human Rights Charter Consultation



Australian Human Rights Commission
Submission to the Tasmanian Department of Justice

29 November 2010

 

Table of Contents


1 Introduction

  1. The Australian Human Rights Commission (the Commission) welcomes the
    opportunity to make this submission to the Tasmanian Department of Justice,
    providing comments on the Human Rights Charter Legislative Project Directions
    Paper (Directions Paper).

2 Summary

  1. The Commission congratulates the Tasmanian Government on making significant
    progress towards the legislated protection of human rights and promoting
    community discussion about human rights.

  2. The Commission strongly believes that a Tasmanian Charter of Rights and
    Responsibilities (Charter of Rights), as proposed in the Directions Paper, can
    significantly improve human rights protection in Tasmania.

  3. In June 2009 the Commission made a substantive submission to the National
    Human Rights Consultation (NHRC) (Attachment A). The Commission called for a
    federal Human Rights Act based on the model of human rights legislation
    operating in the UK, New Zealand, Victoria and the ACT. The submission considers
    in detail the key features of an effective Human Rights Act and addresses many
    of the consultation points raised in the Directions Paper. Accordingly, the
    Commission requests that its submission be read in conjunction with the
    submission to the NHRC.

  4. In this submission the Commission has not addressed each consultation point
    in the Directions Paper. Rather, this submission provides general feedback and
    recommendations on the proposed Charter of Rights model.

  5. The Commission would be willing to provide further assistance on any
    specific issue during the consultation.

3 Recommendations

  1. The Commission makes the following key recommendations to the Tasmanian
    Department of Justice

Recommendation 1: The Tasmanian
Government should enact a Charter of Rights based on human rights legislation
operating in Victoria and the ACT.

Recommendation 2: The Charter of Rights should include protection of
all economic, social and cultural rights.

Recommendation 3: The Charter of Rights should adopt, as far as
possible, the wording of each right as set out in the relevant treaty.

Recommendation 4: Each bill and regulation introduced into the
Parliament should be accompanied by a human rights compatibility statement.

Recommendation 5: A parliamentary Human Rights Committee should be
established to review the compatibility of each bill with the human rights set
out in the Charter of Rights.

Recommendation 6: If the pre-legislative scrutiny process is bypassed,
Parliament should be required to review legislation within a specified time.

Recommendation 7: All legislation should be interpreted in a way that
is consistent with the rights identified in the Charter of Rights, so far as it
is possible to do so consistently with the purpose of that legislation.

Recommendation 8: The obligation to interpret laws consistently with
human rights should apply to everybody interpreting and applying legislation,
including courts and public authorities.

Recommendation 9: The Charter of Rights should point the courts to
international law, judgements of foreign and international courts and tribunals
and, the jurisprudence and views of expert treaty bodies when interpreting human
rights.

Recommendation 10: The Tasmanian Supreme Court should have the power
to make declarations of incompatibility and declare subordinate legislation
invalid.

Recommendation 11: The definition of ‘public authority’ in
the Charter of Rights should include entities whose functions are or include
functions of a public nature, when it is exercising those functions on behalf of
the State or a public authority.

Recommendation 12: Parliament and the courts should be excluded from
the definition of ‘public authority’ except when acting in an
administrative capacity.

Recommendation 13: The Charter of Rights should provide an independent
cause of action against public authorities for a breach of their obligations
under the Charter of Rights.

Recommendation 14: The Charter of Rights should provide access to the
complaint handling section of the proposed Human Rights Commission for
individuals alleging a breach of the human rights set out in the Charter of
Rights.

Recommendation 15: The Charter of Rights should permit a court to make
such orders as it considers appropriate if a public authority has breached human
rights, including orders requiring action, injunctions and damages where
necessary.

Recommendation 16: The Charter of Rights should include a preamble
that:

  • specifically recognises the human rights of Indigenous peoples; and
  • highlights that it is the responsibility of government to protect, respect
    and promote human rights, and the responsibility of every person in Tasmania to
    respect the human rights of others.

Recommendation 17: A
Charter of Rights should establish an independent Tasmanian Human Rights
Commission.


4 Tasmanian Charter of
Rights model

  1. The Commission supports the model proposed for a Charter of Rights in the
    Directions Paper that is based on human rights legislation operating in Victoria
    and the ACT because:

    • This model embeds human rights considerations into all stages –
      including very early stages – of public decision-making. This should help
      prevent human rights problems from occurring.
    • This model creates the type of accountability and transparency in
      decision-making which would strengthen Tasmania’s democratic system of
      government and build upon the existing system of checks and balances.
    • This model preserves parliamentary supremacy. It would be a positive action
      taken by Parliament to express its view on how human rights should be protected,
      and to create the system it believes would achieve that purpose.
    • There is precedent for this model in New Zealand and the United Kingdom
      (UK), and the Tasmanian Law Reform Institute supports this model.

Recommendation 1: The Tasmanian Government should
enact a Charter of Rights based on human rights legislation operating in
Victoria and the ACT.

4.1 Economic, social
and cultural rights

  1. The Directions Paper proposes to include some
    economic, social and cultural rights in the Charter, for example, the right to
    form and join trade unions and the right of children to be protected from
    economic and social exploitation. In addition, the Directions Paper raises for
    consideration the inclusion of other economic, social and cultural rights in the
    Charter of Rights including:

    • the right to work and a right to just conditions of work;

    • the right to have equal access to services that assist the person to acquire
      adequate food, clothing and housing;

    • the right to have equal access to health services to assist the person in
      achieving a reasonable standard of physical and mental health; and

    • the right to education, including equal access to higher education based on
      ability.

  2. The Commission believes that a Charter of Rights should explicitly include all economic, social and cultural rights contained in the International Covenant on Economic Social and Cultural Rights (ICESCR)[1], despite the fact that
    human rights legislation in many other jurisdictions predominately protects
    civil and political rights. There are several reasons for this view:

    • First, human rights are universal, interdependent and indivisible. This
      means that the full enjoyment of civil and political rights may be hampered if
      economic, social and cultural rights are not also protected.

    • Secondly, some of the most pressing human rights concerns involve economic,
      social and cultural rights. If economic, social and cultural rights were
      included in a Charter of Rights, those concerns could be better addressed.

    • Thirdly, the omission of economic, social and cultural rights from a Charter
      of Rights would reinforce a commonly-held misconception that these rights are
      somehow less important than civil and political rights. Including those rights
      in a Charter of Rights would help guide and educate decision-makers on the
      significance of these rights to the lives of people in
      Tasmania.

    • Finally, the independent human rights consultation committees in the ACT,
      Tasmania and Western Australia all recommended that at least some economic,
      social and cultural rights be included in state level human rights
      acts.[2] The UK Human Rights Act
      includes the right to education and the UK Joint Committee on Human Rights has
      suggested that additional economic, social and cultural rights should be
      protected.

  3. While the Commission would prefer the inclusion of all economic, social and
    cultural rights, it recommends at a minimum the inclusion of the rights listed
    above at paragraph 9. However, the Commission notes with concern that the
    proposed wording of the above economic, social and cultural rights has been
    altered from those rights espoused in
    ICESCR.[3] The Commission considers
    that the rights contained in the Charter of Rights should adopt, as far as
    possible, the words of the relevant treaty to ensure consistency with
    international law and to enable courts to draw upon the considerable body of
    international and comparative human rights jurisprudence.

Recommendation 2: The Charter of Rights should include
protection of all economic, social and cultural rights.

Recommendation 3: The Charter of Rights should adopt, as far as
possible, the wording of each right as set out in the relevant treaty.

4.2 Role of
parliament

(a) Pre-legislative
scrutiny

  1. The Commission considers pre-legislative scrutiny to be fundamental to
    preventing human rights breaches by ensuring that the human rights implications
    of proposed laws are openly and transparently assessed and debated, in an
    informed manner, before the laws are enacted.

  2. Pre-legislative human rights scrutiny should require Members of Parliament
    to consider how legislation may affect human rights before the proposed
    legislation is put to a vote. The human rights implications of any proposed law
    should be clearly identified. They could then be debated openly in Parliament.
    In the event that the executive or Parliament was intending to limit the
    enjoyment of any human rights, this should be explicitly identified and publicly
    justified and debated.

  3. Pre-legislative scrutiny would also ensure that courts are better informed
    of legislative intent.

  4. Thus, pre-legislative scrutiny processes could increase accountability and
    transparency – the public would be put on notice when their elected
    representatives were considering measures that would limit human rights.

  5. Pre-legislative scrutiny would also mean that all Members of Parliament,
    including ministers, would have to become familiar with the potential impact of
    new laws and policies on human rights. It would help create an awareness of, and
    a culture of respect for, human rights within Parliament and across government
    departments.

  6. In the Commission’s view, a Charter of Rights should include the
    following pre-legislative processes:

    • every bill introduced into Parliament should be accompanied by a statement
      of human rights compatibility;

    • every bill should be scrutinised by a specialist parliamentary Human Rights
      Committee;

    • in the event that a bill bypasses those processes, the law should be
      automatically reviewed after a fixed period of time.

(b) Statement of
compatibility

  1. The Commission supports the proposal for a Charter of Rights to require a
    human rights statement of compatibility for each new bill.

  2. The Member of Parliament who introduced the bill or regulation into
    Parliament should be required to explain whether or not it is compatible with
    human rights. The human rights compatibility statement should address, amongst
    other things, any limitations on human rights that the proposed legislation or
    regulation would impose. If there were such limitations, they should be
    justified in accordance with the reasonable limits provision in the Charter of
    Rights.

(c) Parliamentary Human
Rights Committee

  1. The Directions Paper does not expressly propose the establishment of a
    parliamentary Human Rights Committee that would scrutinise all bills for human
    rights compliance.

  2. The Commission considers that a Charter of Rights should require a
    parliamentary committee to examine new legislation, and provide advice to
    Parliament on any human rights implications. This would reduce the likelihood of
    the introduction of laws that breach human rights standards.

  3. The Committee should be permanent and dedicated to conducting human rights
    scrutiny. This would produce a better result than simply expanding the role of
    existing legislative scrutiny committees, because it would enable the Committee
    to build special expertise in analysing human rights issues.

  4. The pre-legislative scrutiny conducted by the Committee should be a public
    process, further increasing the transparency of public decision-making. The
    Committee’s scrutiny process could also involve engagement with the public
    and civil society, improving the ability of people in Tasmania to become
    involved in democratic processes.

  5. Experience in the UK and Victoria has shown that human rights committees
    have had an important impact on parliamentary debate. In the UK, arguably
    parliamentary debate on human rights issues is more informed and sophisticated
    as a result of the work of the Joint Committee on Human
    Rights.[4] In Victoria, the pre-legislative scrutiny process has resulted in meaningful
    exchanges between ministers and the Scrutiny of Acts and Regulations
    Committee.[5]

Recommendation
4: Each bill and regulation introduced into the Parliament should be
accompanied by a human rights compatibility statement.

Recommendation 5: A parliamentary Human Rights Committee should be
established to review the compatibility of each bill with the human rights set
out in the Charter of Rights.

Recommendation 6: If the pre-legislative scrutiny process is bypassed,
Parliament should be required to review legislation within a specified time.

4.3 Role of the
courts

(a) Interpretive role

  1. The Commission supports the proposal in the Directions Paper to include an
    interpretive provision that requires courts to interpret legislation
    consistently with human rights based on the interpretative provision in ACT and
    Victoria.

  2. The Commission submits that an interpretive provision should be subject to
    the requirement that courts ensure an interpretation that is also consistent
    with the purpose of the legislation. The pre-legislative scrutiny processes
    supported by the Commission would result in courts being better informed about
    the actual legislative intent.

  3. Such an interpretive provision would ensure that courts do not cross the
    line between legitimate judicial interpretation and improper judicial
    law-making.[6] It would preserve the
    separation of powers and ensure that courts do not tread onto the territory of
    legislators.

  4. This type of provision would not limit Parliament’s power to make
    laws, including laws that breach human rights. However, it would require
    Parliament to be explicit about its intention to pass a law that is inconsistent
    with human rights.

  5. Similarly, if Parliament objected to the way legislation had been
    interpreted by a court, Parliament could introduce amendments clarifying the
    operation of the law.

  6. In either case, the introduction of new laws or amendments which
    deliberately limit the enjoyment of human rights would engage the
    pre-legislative scrutiny process. Parliament would be required to justify a
    decision to enact legislative amendments which were inconsistent with human
    rights. However, parliamentary supremacy would be preserved.

  7. The Directions Paper proposes that the Charter of Rights directly point the
    courts to international law and the judgements of foreign and international
    courts and tribunals when interpreting human rights as in the case in ACT and
    Victoria. The Commission supports this proposal which will help ensure that
    legislation complies with Australia’s international human rights
    obligations. The Commission also considers that courts and tribunals should be
    directed to the jurisprudence and views of expert bodies with responsibility for
    monitoring the implementation of treaties, for example, the Human Rights
    Committee.

  8. In the Commission’s view, it is important that public authorities
    consider how their actions and decisions might impact on a person’s human
    rights. Accordingly, an interpretive provision should also require public
    authorities to interpret legislation consistently with the rights protected by a
    Charter of
    Rights.[7]

Recommendation
7: All legislation should be interpreted in a way that is consistent with
the rights identified in the Charter of Rights, so far as it is possible to do
so consistently with the purpose of that legislation.

Recommendation 8: The obligation to interpret laws consistently with
human rights should apply to everybody interpreting and applying legislation,
including courts and public authorities.

Recommendation 9: The Charter of Rights should point the courts to
international law, judgements of foreign and international courts and tribunals,
and the jurisprudence and views of expert treaty bodies when interpreting human
rights.

(b) Declarative
role

  1. The Commission supports the proposal to grant the Tasmanian Supreme Court
    power to make declarations of incompatibility and to declare subordinate
    legislation invalid.

  2. In the UK, Victoria and the ACT, courts can issue a ‘declaration of
    incompatibility’ if they are unable to interpret legislation in a way that
    is compatible with human rights.[8] This declaration is brought to the attention of Parliament.

  3. A declaration of incompatibility does not affect the ‘validity,
    operation or enforcement’ of the provision that is the subject of the
    declaration.[9] However, in Victoria
    the minister responsible, and in the ACT the Attorney-General, is required to
    respond to a declaration of incompatibility within six
    months.[10] A failure to comply with
    this timetable does not affect the validity of the legislation.

  4. Subordinate legislation is made by the Executive, not Parliament, and does
    not attract the same level of parliamentary scrutiny as primary legislation. For
    this reason, ‘[t]here is no threat to parliamentary sovereignty in the
    judiciary invalidating delegated legislation that the primary legislator has not
    authorised’.[11]

  5. Therefore, the Commission recommends that the Tasmanian Supreme Court be
    empowered to invalidate subordinate legislation which is inconsistent with the
    rights protected by a Charter of Rights, unless the primary Act expressly
    authorises the making of subordinate legislation that is inconsistent with human
    rights.

Recommendation 10: The Tasmanian Supreme Court should
have the power to make declarations of incompatibility and declare subordinate
legislation invalid.

4.4 Compliance with
the obligations in the Charter

  1. The Directions Paper proposes that public authorities, with the exception of
    courts and tribunals in the exercise of their judicial functions, should be
    required to comply with the obligations in the Charter of Rights.

  2. The Commission considers that the definition of ‘public
    authority’ should be broad enough to encompass the myriad of entities that
    are not strictly public authorities yet exercise public functions, and clear
    enough to provide certainty as to who must comply with a Charter of
    Rights.[12]

  3. It is particularly important that the definition of ‘public
    authority’ include private organisations when they are performing public
    functions on behalf of government. This is because, increasingly, services
    previously performed by government are being outsourced to corporations and
    community organisations.[13] Outsourcing should not deprive the users of that government service from the
    right to be treated with respect and in accordance with human rights.

  4. The definition proposed in the Directions Paper departs from the definition
    of ‘public authority’ in human rights legislation in the ACT and
    Victoria. In Victoria public authority is defined to include:

    an
    entity whose functions are or include functions of a public nature, when it is
    exercising those functions on behalf of the State or a public
    authority.[14]

  5. The definition proposed in the Directions Paper only includes organisations
    other than public authorities in respect of the delivery of services or programs
    which are ‘controlled or funded’ by a public authority. The
    Tasmanian Law Reform Institute recommended that the definition of ‘public
    authority’ include a ‘function test’ based on the Victorian
    approach.[15] However, the
    Directions Paper proposes a definition of public authorities which omits a
    function test.

  6. The Commission is concerned that by not incorporating a function test into
    the definition of public authority, entities that are not necessarily
    ‘controlled or funded by a public authority’, but still exercise
    public functions will not have to comply with human rights obligations. The
    Commission considers that the definition of public authorities should include a
    function test in line with the ACT and Victorian model.

  7. The Commission notes that the Parliament and courts should generally be
    excluded from the definition of public authority, other than when acting in an
    administrative capacity. This exclusion would preserve parliamentary supremacy
    and protect against any interference with judicial power.

Recommendation 11: The definition of ‘public
authority’ in a Charter of Rights and Responsibilities should include
entities whose functions are or include functions of a public nature, when it is
exercising those functions on behalf of the State or a public authority.

Recommendation 12: Parliament and the courts should be excluded from
the definition of ‘public authority’ except when acting in an
administrative capacity.

4.5 Enforceability of
rights

  1. There is no independent cause of action in the proposed Charter of Rights
    model. The model proposes to allow individuals to raise the rights set out in
    the Charter of Rights:

    • as part of another action in a court or tribunal; or

    • as part of the judicial review of administrative decisions.

  2. In addition, the model allows for an individual who only has a human rights
    action caused by incompatible provisions in an Act to take that issue to the
    proposed Human Rights Commission. It is proposed that the Human Rights
    Commission would then be able to seek a declaration of incompatibility in the
    Supreme Court.

  3. While the Commission supports the proposed power of the Human Rights
    Commission to be able to take complaints to the Tasmanian Supreme Court, it
    considers that the proposed model will not provide sufficient protection of
    human rights in Tasmania.

  4. The Commission submits that a Charter of Rights should provide an
    independent cause of action where a claim is made that a public authority
    committed a breach of human rights. Victims of human rights breaches should not
    have to rely on a separate cause of action in order to seek a remedy. The
    Commission considers such an approach will unduly restrict the availability of
    remedies to those who complain of human rights breaches.

  5. The Commission understands the concern that a Charter of Rights may lead to
    increased litigation.

  6. However, an accessible alternative dispute resolution (ADR) process would
    reduce the impact of a Charter of Rights on the judicial system.

  7. Litigation need not be the only – or indeed, the first – port of
    call for people who want to make a complaint alleging a breach of human rights.

  8. The current anti-discrimination jurisdiction recognises the potential of ADR
    to resolve disputes between complainants and public authorities in a quick,
    cost-efficient and effective
    manner.[16]

  9. Following this model, a Charter of Rights could require a person to attempt
    to resolve a human rights complaint through the investigation and conciliation
    processes provided by the proposed Human Rights Commission.

  10. Any ADR process under a Charter of Rights should be properly funded,
    accessible and affordable.

  11. Where a complaint cannot be resolved through conciliation, complainants
    should be entitled to pursue their claim in the
    courts.

Recommendation 13: The Charter of Rights should
provide an independent cause of action against public authorities for a breach
of their obligations under the Charter of Rights.

Recommendation 14: The Charter of Rights should provide access to the
complaint handling section of the proposed Human Rights Commission for
individuals alleging a breach by a public authority of the human rights set out
in the Charter of Rights.

4.6 Enforceable
remedies

  1. The Commission is concerned at the proposal in the Directions Paper for a
    Charter to explicitly exclude damages from any remedy or relief arising solely
    from an action based on the Charter.

  2. The Commission understands this proposal to mean damages in relation to an
    action where human rights are raised as part of a separate cause of action,
    since there is no provision for an independent cause of action.

  3. A public authority should be held accountable if it breaches the human
    rights of an individual. A Charter of Rights could provide that accountability
    by giving a person access to enforceable remedies when a public authority
    breaches his or her human rights under the Act.

  4. A Charter of Rights should permit a court to make such orders as it
    considers appropriate if a public authority has breached human rights, including
    orders requiring action, injunctions and the payment of damages.

  5. The right to claim monetary damages for a breach of human rights would send
    an important message to public authorities and people in Tasmania that Tasmania
    takes breaches of human rights by, or on behalf of its government, seriously.

  6. Thus, a Charter should empower a court to make an order for damages where
    appropriate. Furthermore, exclusion of damages would arguably be contrary to
    Australia’s obligations under article 2(3) of the International
    Covenant on Civil and Political Rights     (ICCPR).[17]

  7. The human rights treaties either explicitly or implicitly require Australia
    to ensure that a person has access to effective remedies, including judicial
    remedies, if their rights are
    breached.[18]

  8. According to the UN Human Rights Committee, an ‘effective
    remedy’ requires reparation to the person whose rights have been violated.
    Reparations can ‘involve restitution, rehabilitation and measures of
    satisfaction, such as public apologies, public memorials, guarantees of
    non-repetition and changes in relevant laws and
    practices’.[19]

  9. In the case of the ICESCR, the UN Committee on Economic, Social and Cultural
    Rights has noted that although administrative remedies can sometimes be enough,
    ‘whenever a Covenant right cannot be made fully effective without some
    role for the judiciary, judicial remedies are
    necessary’.[20]

  10. Damages are currently available for breaches of human rights protected by
    federal discrimination
    laws.[21]

  11. Damages are available for a violation of the UK Human Rights Act but only if
    this award is necessary to afford just satisfaction to the
    complainant.[22]

  12. While the New Zealand Bill of Rights Act 1990 (NZ) does not make
    specific provision for remedies, the New Zealand Court of Appeal has held that
    compensation is available for breach of the human rights protected under that
    Act.[23]

Recommendation
15: The Charter of Rights should permit a court to make such orders as it
considers appropriate if a public authority has breached human rights, including
orders requiring action, injunctions and payment of damages where necessary.

4.7 Inclusion of
preamble that specifically recognises the human rights of Indigenous
peoples

  1. While it may have limited legal significance, the preamble to a Charter of
    Rights could send a strong symbolic message to the Australian community about
    the importance of human rights.

  2. A preamble to a Charter of Rights could articulate, in plain and simple
    language, the importance of human rights for an inclusive, cohesive and
    democratic society. It could set out the fundamental principles and values that
    underpin the Act. Furthermore it could affirm that all people in Tasmania are
    entitled to enjoy human rights, without discrimination.

  3. A preamble should also specifically recognise the unique status of
    Indigenous peoples as first peoples and acknowledge their human
    rights.[24]

  4. By recognising Indigenous peoples in the preamble to a Charter of Rights,
    the Tasmanian Government would demonstrate a clear commitment to protecting
    their human rights. This is appropriate given the significant and sustained
    breaches of human rights that Indigenous peoples face.

  5. A preamble should also highlight that it is the responsibility of government
    to protect, respect and promote human rights, and the responsibility of every
    person in Australia to respect the human rights of
    others.[25]

Recommendation
16: The Charter of Rights should include a preamble that:

  • specifically recognises the human rights of Indigenous peoples; and
  • highlights that it is the responsibility of government to protect, respect
    and promote human rights, and the responsibility of every person in Tasmania to
    respect the human rights of others.

4.8 Disability
rights

  1. As noted above, human rights are universal, interdependent and indivisible.
    The Commission welcomes the proposed inclusion of some of the rights recognised
    in the Convention on the Rights of Persons with Disabilities
    (CRPD).[26] However, it is noted
    that only a small number of the rights derived from this Convention are proposed
    for inclusion.

  2. This may be on the basis that people with disability are covered by the
    rights contained in the ICCPR and the ICESCR. While this is accurate as a matter
    of law, a Charter of Rights is likely to be far more useful in providing
    practical guidance on implementation of human rights for people with disability
    if it directs attention to the material contained in the CRPD, including
    extrinsic material.

  3. A similar point can be made regarding each of the other thematic 
    Conventions. At a minimum it is suggested that people implementing and
    interpreting the Charter of Rights have their attention directed to the thematic
    Conventions rather than only to the ICCPR and ICESCR.

5 Establishment of an
independent Human Rights Commission

  1. The Commission supports the establishment of an independent Human Rights
    Commission that would incorporate the work of the current Anti-Discrimination
    Commission.

  2. The right to freedom from discrimination is one of the most fundamental of
    human rights. Human rights are non-divisible. Consideration of some rights such
    as the right to be free from discrimination often requires consideration of
    other fundamental human rights.

  3. A single Human Rights Commission would be able to consider the effectiveness
    of protection from discrimination as well as the effectiveness of protection
    from other breaches of human rights.

  4. The Commission supports giving a Tasmanian Human Rights Commission a broad
    range of functions including:

    • monitoring human rights protections under the Charter of Rights;

    • advising government on compliance with the Charter of Rights;

    • intervention role as amicus curiae or intervener in court proceedings;

    • promoting awareness and understanding of the operation of the Charter of
      Rights (both within the broader community and court system);

    • encouraging government agencies and authorities to adopt polices and
      programs which are compatible with the Charter of Rights;

    • preparing an annual report on the operation of the Charter of Rights to be
      tabled by the Attorney-General in Parliament;

    • examining enactments to see if they comply with the Charter of Rights;

    • reviewing practices of public authorities, including Government Departments,
      for Charter of Rights compatibility;

    • making submissions to the Parliamentary Standing Committee on Human Rights
      about the human rights implications of new bills;

    • promoting understanding and acceptance of, and compliance with, the Charter
      of Rights. This may include undertaking research and developing education
      programs to promote the objectives of the Charter.

Recommendation 17: The Charter of Rights should
establish an independent Tasmanian Human Rights Commission.


[1] International Covenant on
Economic, Social and Cultural Rights (ICESCR), 1966. At http://www.unhchr.ch/html/menu3/b/a_cescr.htm (viewed 16 November 2010).

[2] Consultation Committee for a Proposed WA Human Rights Act, A WA Human Rights
Act: Report of the Consultation Committee for a Proposed WA Human Rights Act (2007), at http://www.department.dotag.wa.gov.au/H/human_rights_report_2007.aspx?uid=0053-1186-4534-3685 (viewed 7 June 2009), pp 76 - 77; Tasmania Law Reform Institute, A Charter of
Rights for Tasmania, Report No 10 (2007), at http://www.law.utas.edu.au/reform/docs/Human_Rights_A4_Final_10_Oct_2007_revised.pdf (viewed 16 November 2010), pp 169 - 170; ACT Bill of Rights Consultative
Committee, Towards an ACT Human Rights Act: Report of the ACT Bill of Rights
Consultative Committee (2003), p 100, at http://www.jcs.act.gov.au/prd/rights/reports.html (viewed 16 November 2010).

[3] International Covenant on Economic, Social and Cultural Rights (ICESCR),
1966. At http://www.unhchr.ch/html/menu3/b/a_cescr.htm (viewed 16 November 2010)

[4] M
Hunt, The UK Human Rights Act as a ‘parliamentary model’ of
rights protection: lessons for Australia (Speech delivered at the Australian
Human Rights Commission, Sydney, 17 February 2009). At http://www.humanrights.gov.au/letstalkaboutrights/events/Hunt_2009.html (viewed 16 November 2010).

[5] Victorian Equal Opportunities and Human Rights Commission, Emerging Change:
The 2008 report on the operation of the Charter of Human Rights and
Responsibilities (2009), p 30. At http://www.humanrightscommission.vic.gov.au/publications/annual%20reports/2008charterreport.asp (viewed 7 June 2009), p 71.

[6] Chief Justice Spigelman argues that the words ‘consistently with their
purpose’ in the Victorian Charter and the ACT Human Rights Act are words
of limitation which do not permit the courts in Victoria and the ACT to apply
the interpretive obligation as expansively as had occurred in the UK. See The
Hon Chief Justice J Spigelman AC, The Application of Quasi-Constitutional
Laws (Speech delivered at the 2008 McPherson Lecture Series, Brisbane, 11
March 2008), p 9. At http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwFiles/spigelman110308.pdf/$file/spigelman110308.pdf (viewed 4 June 2009), , p 32; The Hon M McHugh AC QC, A Human Rights Act, the
courts and the Constitution (Paper presented at the Australian Human Rights
Commission, Sydney, 5 March 2009). At http://humanrights.gov.au/letstalkaboutrights/events/McHugh2009_%20paper.doc (viewed 4 June 2009), p 26.

[7] See Kracke v Mental Health Review Board [2009] VCAT 646, para 206 where
Justice Bell said ‘[t]he subject of s 32(1) is everybody. It applies to
the courts, tribunals, government officials and public authorities’.

[8] Human Rights Act 1998 (UK), ss 4, 36; Human Rights Act 2004 (ACT), s 32. In Victoria, this is
known as a ‘declaration of inconsistent interpretation’: Charter
of Human Rights and Responsibilities Act 2006 (Vic), s
36.

[9] Charter of Human Rights
and Responsibilities Act 2006 (Vic), s 36(5); Human Rights Act
2004 (ACT), s 32(3).

[10] Charter of Human Rights and Responsibilities Act 2006 (Vic), s 37; Human Rights Act 2004 (ACT),
s 33(3).

[11] J Debeljak, ‘The Human Rights Act 2004 (ACT): A Significant, Yet
Incomplete, Step Toward the Domestic Protection and Promotion of Human
Rights’ (2004) 15 Public Law Review 169, p 175. See also D Meagher,
‘Taking Parliamentary Sovereignty Seriously within a Bill of Rights
Framework’ (2005) 10 Deakin Law Review 686.

[12] For definitions of
‘public authority’ in other jurisdictions, see Human Rights Act
2004 (ACT), s 40; Charter of Human Rights and Responsibilities Act
2006 (Vic), s 4; Human Rights Act 1998 (UK), s
6.

[13] These services include
those in the areas of welfare services, health care, and management of prisons
and other detention
facilities.

[14] Charter of
Human Rights and Responsibilities Act 2006 (Vic), s 4(2); a similar
definition is found in the Human Rights Act 2004 (ACT), s
40(1)(g).

[15] Tasmanian Law
Reform Institute, note 2, p
72.

[16] For information on the
complaints process, see Australian Human Rights Commission, Federal
Discrimination Law Online, ch 6. At http://www.humanrights.gov.au/legal/FDL/index.html (viewed 16 November 2010).

[17] International Covenant on Civil and Political Rights (ICCPR), 1966, art
2(3). At http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 November 2010)

[18] International Convention on the Elimination of All Forms of Racial
Discrimination, 1965, art 6. At http://www.unhchr.ch/html/menu3/b/d_icerd.htm (viewed 16 November 2010); Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 1984, art 14. At http://www2.ohchr.org/english/law/cat.htm (viewed 6 November 2010); Convention on the Elimination of All Forms of
Discrimination against Women, 1979, art 2(c). At http://www.unhchr.ch/html/menu3/b/e1cedaw.htm (viewed 29 May 2009); International Covenant on Civil and Political
Rights, 1966, art 2(3). At http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 May 2009); International Covenant on Economic, Social and Cultural
Rights, 1966, art 2(1). At http://www.unhchr.ch/html/menu3/b/a_cescr.htm (viewed 16 November 2010); Convention on the Rights of the Child, 1989,
art 4. At http://www.unhchr.ch/html/menu3/b/k2crc.htm (viewed 16 November 2010); Convention on the Rights of Persons with
Disabilities, 2006, art 4. At http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf (viewed 16 November 2010). See also UN Committee on Economic, Social and
Cultural Rights, General Comment 3: The nature of States parties obligations
(Art. 2, para. 1 of the Covenant), UN Doc E/1991/23, annex III at 86 (1991),
para 5. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument (viewed 16 November 2010).

[19] UN Human Rights Committee, General Comment No 31: Nature of the General Legal
Obligation Imposed on States Parties to the Covenant, UN Doc
CCPR/C/21/Rev.1/Add.13 (2004), para 16. At http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Opendocument (viewed 16 November 2010).

[20] UN Committee on Economic, Social and Cultural Rights, General Comment No 9:
The domestic application of the Covenant, UN Doc E/C.12/1998/24,CESCR
(1998), para 9. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/4ceb75c5492497d9802566d500516036?Opendocument (viewed 16 November 2010See also UN Committee on Economic, Social and Cultural
Rights, General Comment 3, note xvii, para
5.

[21] Human Rights and Equal
Opportunity Commission Act 1986 (Cth), s 46P0(4)(d). See also
Australian Human Rights Commission, Federal Discrimination Law Online,
note 16,
ch 7.

[22] Human Rights Act
1998 (UK), s 8(3).

[23] Simpson v Attorney-General (Baigent’s case)
[1994] 3 NZLR 667.

[24] See Charter of Human Rights and Responsibilities Act 2006 (Vic),
preamble; Human Rights Act 2004 (ACT),
preamble.

[25] See Charter of
Human Rights and Responsibilities Act 2006 (Vic), preamble; Human
Rights Act 2004 (ACT),
preamble.

[26] Convention on
the Rights of Persons with Disabilities (Disability Convention), 2006. At http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf (viewed 17 November 2010).