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Article Excerpt
[Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter), the Victorian Parliament protects a range of civil and political rights. The rights are subject to restricting provisions, including a general limitation clause which allows all rights to be subject to such reasonable limits as can be demonstrably justified in a free and democratic society, and on override provision which allows the suspension of the operation of specified Victorian Charter rights in relation to overriding legislation for a renewable period of five years. This article will explore the theoretical underpinnings of the rights-restricting mechanisms before critiquing the mechanisms adopted under the Victorian Charter against comparable international, regional and domestic human rights instruments, and against the underlying objectives of the Victorian Charter--the preservation of parliamentary sovereignty and the creation of an institutional dialogue about rights. This analysis will demonstrate that the rights-restricting mechanisms under the Victorian Charter are flawed devices because they go beyond the restrictions ordinarily accepted under international, regional and domestic human rights law; reach beyond what is needed to establish an institutional dialogue; and tend to unnecessarily promote parliamentary sovereignty at the expense of human rights accountability, justification and scrutiny.]
CONTENTS I Introduction II Balancing Rights in a Democracy through the Use of Restrictions A Methods of Restricting Rights B The Restrictions under the Victorian Charter C Institutional Justifications for Restrictions: Parliamentary Sovereignty and Dialogue 1 Motivation to Preserve Parliamentary Sovereignty 2 Institutional Dialogue III The Victorian Charter and Limitations on Rights A Relevance of International Human Rights Obligations B Problems with the General Limitations Power IV The Victorian Charter and Overriding Rights A Non-Derogable Rights under International, Regional and Comparative Domestic Human Rights Law B Conditioning the Use of Derogations/Overrides under International, Regional and Comparative Domestic Human Rights Law 1 The Circumstances Justifying a Derogation 2 Regulation of the Effects of a Derogation C Underlying Objectives of the Victorian Charter and the Override 1 Preservation of Parliamentary Sovereignty 2 Establishing an Institutional Dialogue D Conclusion V Comparative Domestic Human Rights Instruments and Overrides/Derogation A Derogation under the South African Bill of Rights B Derogation under the UK Human Rights Act C Overrides under the Canadian Charter D Conclusion VI Conclusion
I INTRODUCTION
Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter'), the Victorian Parliament protects and promotes a range of civil and political rights, (1) based largely on the rights guaranteed under the International Covenant on Civil and Political Rights ('ICCPR'). (2) Those rights, however, may be subject to restriction. Under the general limitation power in s 7(2), all rights may be subject 'to such reasonable limits as can be demonstrably justified in a free and democratic society'. Some individual rights may also be subject to internal qualifications or limitations specific to those particular rights. Moreover, all rights may be subject to the s 31 override provision, which allows the suspension of the operation of specified rights--or the entire Victorian Charter--in relation to an overriding law for a renewable period of five years.
Allowing rights to be restricted is neither new nor wrong. It is widely acknowledged that not all rights are absolute, that they need to be balanced against other protected rights and that they may conflict with other non-protected values. (3) The ability to restrict rights is also a key mechanism for establishing an institutional dialogue about rights between the three arms of government, in contrast to representative or judicial monologues about rights.
This article will explore the theoretical underpinnings of restriction mechanisms, then critique the mechanisms adopted under the Victorian Charter against comparable international, regional and domestic human rights instruments, and against the underlying objectives of the Victorian Charter--the preservation of parliamentary sovereignty and the creation of an institutional dialogue about rights. (4) This analysis will demonstrate that the rights-restricting mechanisms under the Victorian Charter are flawed devices. These mechanisms go beyond the level of rights restriction ordinarily incorporated in international, regional and domestic human rights instruments and do not contain the corresponding safeguards built into such instruments. Moreover, the override provision, which is not necessary to preserve parliamentary sovereignty, threatens to undermine the institutional dialogue that the Victorian Parliament sought to secure under the Victorian Charter and compromises human rights accountability, justificatory decision-making and scrutiny under the Victorian Charter.
II BALANCING RIGHTS IN A DEMOCRACY THROUGH THE USE OF RESTRICTIONS
It is a myth that rights are 'absolute trumps' over majority preferences, aspirations or desires. In fact, most rights are not absolute. (5) Under human rights instruments, rights are balanced against and limited by other protected rights, and other non-protected values and communal needs. A plurality of values is accommodated, not just rights. (6) Moreover, in jurisdictions with human rights instruments that adopt an institutional dialogue model (such as Victoria), the specific balance of the pluralistic values is assessed from a plurality of institutional perspectives--usually the executive, the legislative and the judicial.
A Methods of Restricting Rights
Rights can be restricted in various ways under human rights instruments. Many rights are internally qualified. For example, under the ICCPR and the Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the European Convention on Human Rights) ('ECHR'), (7) every person has the right to liberty and security of the person, but this right may be qualified in specified circumstances such as lawful detention after conviction by a competent court or the detention of a minor for the lawful purpose of educational supervision. (8)
Rights can also be internally limited. For example, the rights contained in arts 12, 18-19 and 21-2 of the ICCPR and arts 8-11 of the ECHR are guaranteed, subject to limitations that can be justified by reference to particular objectives such as the protection of public health, order or morals; the national interest; national security, public safety or the wellbeing of the country; public order; the prevention of disorder or crime; or the protection of the rights and freedoms of others. (9) Such internal limitations must be in accordance with law (10) and necessary in a democratic society.
Further, rights can be externally limited. For example, s 1 of the Canadian Charter of Rights and Freedoms 1982 ('Canadian Charter') guarantees enumerated rights, subject to any reasonable limits that are prescribed by law and that can be demonstrably justified in a free and democratic society. (11) This is a global limitations clause which applies to all of the guaranteed rights. Similar wording has been adopted in the South Africa, (12) New Zealand (13) and Australian Capital Territory models. (14)
Finally, rights can be temporarily suspended in exceptional circumstances. In international and regional settings, this is referred to as derogation. For example, under art 4 of the ICCPR:
in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, [states] may take measures derogating from their obligations under the [ICCPR] to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. (15)
In the domestic setting, temporary suspension is more commonly referred to as overriding rights. Section 33 of the Canadian Charter was the first articulation of the concept of derogation in a domestic setting; it provides that Parliament can expressly declare in legislation that the legislation shall operate notwithstanding a provision of the Canadian Charter for a (renewable) five-year period.
B The Restrictions under the Victorian Charter
The Victorian Charter has adopted all four methods of restricting rights.
First, the main limitation power in the Victorian Charter is the external general limitation power contained in s 7(2), which provides that the protected rights may be subject 'to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom'. Section 7(2) lists the following factors to be balanced when assessing limits: (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve--a minimum impairment test. The global limitation test is borrowed from s 1 of the Canadian Charter, whilst the factors are borrowed from s 36 of the South African Bill of Rights, which itself is modelled on the jurisprudence developed under the Canadian Charter. (16)
Secondly, some individual rights in the Victorian Charter, such as the freedom from forced labour under s 11(2) and the right to liberty and security of the person under s 21, contain specific internal qualifications to the breadth of the right.
Thirdly, some individual rights contain internal limitations as specific articulations of limitations relevant to that right. For example, the freedom of expression under s 15 of the Victorian Charter may be subject to restrictions necessary to protect the reputation of others, and for the protection of national security, public order, public health or public morality. (17) The tests for internal qualifications and limitations are not dissimilar to the general limitations test, (18) and the latter still applies to rights that are subject to specific internal qualifications or limitations. (19)
Fourthly, Victoria adopted an override provision based on s 33 of the Canadian Charter. Under s 31, Parliament can override the application of any or all of the protected rights. This power may be used when enacting legislation for the first time, or in response to a judicial ruling. Use of the override means that the overriding legislation operates notwithstanding the Victorian Charter; in other words, both the s 32 interpretative obligation and the s 36 declaration power will not apply to that legislation. (20) Given the extraordinary nature of an override, a number of safeguards have been incorporated. First, such declarations are to be made only in exceptional circumstances. (21) 'Exceptional circumstances' include 'threats to national security or a state of emergency which threatens the safety, security and welfare of the people of Victoria'. (22) Secondly, override declarations are subject to a renewable five-year sunset clause. (23)
C Institutional Justifications for Restrictions: Parliamentary Sovereignty and Dialogue
The Victorian government made it clear from the beginning of its community consultation that any changes to the methods of rights protection would be subject to the preservation of parliamentary sovereignty. (24) This preservation of parliamentary sovereignty has been achieved by the institutional arrangements and processes enacted as a result of the community consultation and embodied in the Victorian Charter. This Part will explore the motivation for preserving parliamentary sovereignty, the precise manner in which it has been preserved and the role that restrictions on rights have in such preservation.
1 Motivation to Preserve Parliamentary Sovereignty
The motivation to retain parliamentary sovereignty is linked to traditional rights instruments, such as the United States model, which allow the judiciary to invalidate legislation that is inconsistent with guaranteed rights. (25) In short, it is often asserted that democracy requires parliamentary sovereignty. It is argued that if the judiciary was empowered to review and invalidate legislative and executive actions under a rights instrument (which occurs under the United States Constitution), we would have a system of judicial sovereignty. Given that the judiciary is not elected, judicial sovereignty is undemocratic. Therefore, to preserve democracy, the representative arms must retain sovereign power over rights. (26)
More modern human rights instruments address this supposed anti-democratic tension by ensuring that the judiciary does not have the final say about rights. In these instruments, judicial review is simply one element of an institutional dialogue about rights between the executive, legislature and the judiciary. This contrasts with a parliamentary monologue in jurisdictions with no formal protection of human rights (such as the Australian model), or a judicial monologue under a fully-fledged constitutional human rights instrument (such as the US model). (27) In order to establish the institutional dialogue, modern rights instruments use various mechanisms which are designed to guard against judicial supremacy while simultaneously ensuring enhanced rights accountability of the representative arms. The Victorian Charter was enacted with the explicit aim of establishing an institutional dialogue about rights (28) and adopts the approach of these modern human rights instruments.
2 Institutional Dialogue
In order to contextualise the discussion of restrictions, it is pertinent to briefly explore the four institutional dialogue mechanisms employed by modern human rights instruments and the Victorian Charter. (29)
The first institutional dialogue mechanism relates to the articulation of rights. Modern human rights instruments, including the Victorian Charter, deliberately articulate the protected rights in broad and open-textured terms. This accommodates the uncertainty associated with unforeseeable situations and needs, and manages the (often irreducible) (30) diversity and disagreement within pluralistic communities. Open-textured rights, however, need to be refined in their concrete application. Institutional dialogue is about securing the most broad and diverse input from each of the differently situated and motivated arms of government into this process of refinement.
The second institutional dialogue mechanism is the non-absoluteness of rights. Under the Victorian Charter and other modern human rights instruments, rights are balanced against, and limited by, other protected rights, and non-protected values and communal needs. This ensures that a plurality of values is accommodated through the protection of rights. Moreover, an institutional dialogue approach ensures that the specific resolution of conflicts between rights, and between rights and other non-protected values, will be assessed by a plurality of institutional perspectives. All arms of government are able to provide an assessment of the appropriate balance to be struck when conflicts over rights arise, based on each arm's divergent motivations, strengths, skills and tools.
In terms of the first and second institutional dialogue mechanisms, the executive through policy formulation and legislative drafting, (31) the legislature through its constitutional roles of legislative scrutineer and law-maker, (32) and the judiciary through adjudicating disputes and applying the law all contribute to the debate about the refinement of the rights and the justifiability of their limitations. The balance struck between rights and justifiable limitations is a 'process of careful adaptation ... carried out by all three branches of government'. (33) The 'maximum participation by [the] different sectors' (34) of government is vital to ensuring the educative promise of institutional dialogue, which
allows courts to educate legislatures and society by providing principled and robust articulations of the values of the Charter ... while allowing legislatures to educate courts and society about their regulatory and majoritarian objectives and the practical difficulties in implementing those objectives. (35)
The contribution of each arm is informed by distinct institutional motivations, responsibilities and concerns. The representative arms will bring to bear their unique understanding of the requirements of, and balance between, democracy and rights. These perspectives will be informed by their distinct role in mediating between different interests and values within society; their responsibilities to their representatives; their motivation to stay in power; and their distinctive institutional strengths. These are all legitimate and proper influences in the representative arms' decision matrix. The analysis of the judiciary will proceed from its distinct institutional perspective, which is informed by its unique non-majoritarian role and its particular concern about principle, reason, rationality, proportionality and fairness. The judiciary must not be timid and must not simply defer to the executive and legislative viewpoints. Rather, the judiciary must acknowledge, consider and be open to the influence of the executive and legislative contributions, whilst still making an independent assessment of the rights implications of the legislation.
The third institutional dialogue mechanism is the limited powers conferred on the judiciary under the Victorian Charter. Section 32(1) imposes an obligation on the judiciary which requires all statutory provisions to be interpreted in a way that is compatible with protected rights, so far as it is possible to do so consistently with the statutory purpose. (36) However, the judiciary is not authorised to invalidate legislation that is not amenable to a s 32 rights-compatible interpretation. Rather, under s 36, the Supreme Court of Victoria or the Victorian Court of Appeal are empowered to make a 'declaration of inconsistent interpretation'. (37) A declaration does not affect the 'validity, operation or enforcement' of the legislation, or 'create in any person any legal right or give rise to any civil cause of action.' (38) In terms of institutional dialogue, the judiciary may deliver one of three outcomes under the third mechanism. First, the law may be upheld as rights-compatible because it does not impose unjustifiable limitations on the protected rights. Secondly, s 32 may be used to produce a rights-compatible interpretation of the otherwise rights-incompatible legislation. (39) Thirdly, a s 36 declaration may be issued where a rights-compatible interpretation pursuant to s 32 is impossible and/or inconsistent with the statutory purpose. These judicial outputs feed back into the dialogue loop via the fourth mechanism.
The fourth institutional dialogue mechanism is the representative response mechanism(s) to the judicial outputs. The representative arms may respond to s 32 judicial interpretations and must respond to s 36 judicial declarations. (40) First, Parliament may decide to do nothing, leaving the s 32 judicially-assessed interpretation in place or the s 36 judicially-assessed incompatible law in operation. (41) In relation to the latter, the retention of the judicially-assessed, rights-incompatible legislation is consistent with the preservation of parliamentary sovereignty (42) and demonstrates that dialogue models are not designed to necessarily produce consensus. (43)
Secondly, Parliament may decide to pass ordinary legislation. (44) A legislative response to s 36 declarations would presumably be aimed at removing a judicially-assessed rights-incompatibility. A legislative response to s 32 judicial interpretations may be aimed at clarifying the judicial interpretation, addressing an unforeseen consequence arising from that interpretation, or emphasising a competing right or other non-protected value. Conversely, Parliament may disagree with the judiciary's rights-compatible interpretation and legislate to reinstate its initial rights-incompatible legislation using express language and/or an incompatible statutory purpose in order to avoid any possibility of a future s 32 rights-compatible interpretation. This latter response is consistent with the preservation of parliamentary sovereignty and accommodation of disagreement.
Thirdly, under s 31 Parliament may choose to override the Charter, thereby avoiding the rights issue altogether. The s 32 interpretative obligation and the s 36 declaration power do not apply to legislation which is subject to an override declaration. (45) This effectively 'mutes' the judicial voice on the matter for a period of five years. This is still consistent with dialogue, however, because the judicial viewpoint revives when the dialogue continues at the expiration of the override provision. Where new or amended legislation is part of the representative response, the dialogue cycle begins again. The four institutional dialogue mechanisms thus lock the arms of government into a relationship of ongoing dialogue about rights and democracy.
These four institutional dialogue mechanisms ensure that each arm of government shares the responsibility for assessing governmental actions against rights--the executive and legislature make an initial assessment of legislation against the protected rights and justifiable limits (the first and second mechanisms); the judiciary then contributes its perspective (the first, second and third mechanisms); and the executive and legislature can then respond (the fourth mechanism). There are strong incentives for the representative arms of government to engage in a constructive and educative dialogue with the judiciary: an unexpected s 32 judicial rights-compatible interpretation of legislation may compromise the legislative objectives and/or means; and a s 36 judicial declaration 'impl[ies] a degree of legal impropriety in what Parliament has done even if it does not amount to illegality.' (46) The initial views of the executive and legislature, however, do not necessarily trump because the judiciary can review their actions. Conversely, the judicial view does not necessarily trump, given the representative response mechanisms. Rights accountability is increased through the institutional dialogue about the extent to which governmental activity impacts on rights and the justifications for this. Ultimately, however, parliamentary sovereignty is preserved. Although the judiciary's contribution should prompt a response by the representative arms, it cannot dictate the nature or content of the response, with Parliament being free to retain rights-inconsistent outcomes.
III THE VICTORIAN CHARTER AND LIMITATIONS ON RIGHTS
The above analysis highlights that restrictions on rights are an inherent part of the protection of rights and help to establish an institutional dialogue amongst the arms of government about the legitimacy of governmental actions. The rights-restricting powers contained in the Victorian Charter, however, go beyond those ordinarily accepted in international, regional and comparable domestic human rights law, do not contain the corresponding safeguards built into such instruments, and reach beyond what is needed to establish an institutional dialogue. First, the general limitation power is broader than the equivalent limitation powers under international human rights law (discussed in this Part). Secondly, there are numerous problems with the override provision (discussed below in Parts IV and V). The inclusion of an override power is unnecessary given the preservation of parliamentary sovereignty by the substantial circumscription of judicial powers and the establishment of an institutional dialogue. Moreover, the application of the override to all rights is too broad. Further, the safeguards included to regulate the use of the override fall far short of those contained in international, regional and comparable domestic human rights instruments.
A Relevance of International Human Rights Obligations
Before exploring these shortcomings, it is worth briefly considering whether or not it matters if the Victorian Charter conforms to international human rights law standards. Unlike the United Kingdom, the Victorian Charter was not enacted with the explicit intention of 'bringing rights home'--that is, of ensuring that international and regional human rights could be enforced within the domestic jurisdiction. (47) However, this does not mean that conformity with international human rights law is irrelevant under the Victorian Charter. First, by adopting the essence of the ICCPR rights, the Victorian Charter implicitly 'brings rights home' for Victorians. Secondly, 'international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision' under s 32(2) of the Victorian Charter, thereby making international human rights norms relevant. Thirdly, Victorians still retain their right of individual communication to the Human Rights Committee (the treaty monitoring body) for alleged violations of the ICCPR where, inter alia, all domestic remedies (now including the Victorian Charter) have been exhausted. (48) Finally, where the Victorian Charter obligations are less rigorous than the minimum protections guaranteed under international human rights law, the Commonwealth may still be held to account internationally for any violations of Australia's international human rights obligations. (49)
B Problems with the General Limitations Power
According to international human rights law, it is permissible to place qualifications and limitations on certain individual rights. Moreover, there is nothing in international human rights law to suggest that qualifications and limitations are more effectively imposed by specifically-worded internal qualifications or internal limitations than by a generally-worded external limitations power. However, a generally-worded external limitations clause that applies to all protected rights is problematic as not all rights may be lawfully subject to qualification, limitation, override or derogation in international human rights law--some rights are absolute. To the extent that s 7(2) of the Victorian Charter applies to so-called absolute rights, it does not conform to international human rights law. (50)
Under international human rights law, absolute rights cannot be derogated from (or overridden) and no circumstance justifies a qualification or limitation of such rights. (51) Absolute rights in the ICCPR 52 include the prohibition on genocide (art 6(3)); the prohibition on torture or cruel, inhuman and degrading treatment or punishment (art 7); the prohibition on slavery and servitude (arts 8(1) and (2)); the prohibition on prolonged arbitrary detention (elements of art 9(1)); the prohibition on imprisonment for a failure to fulfil a contractual obligation (art 11); the prohibition on the retrospective operation of criminal laws (art 15); the right of everyone to recognition everywhere as a person before the law (art 16); and the right to freedom from systematic racial discrimination (elements of arts 2(1) and 26). (53)
The solution to this problem is to retain the generally-worded external limitation provision embodied in s 7(2) of the Victorian Charter, but to exclude it from applying to ss 8, 10, 11(1)-(2), 21(2), (8) and 27. This outcome should be achieved by legislative amendment to the Victorian Charter. It may also be achieved through judicial interpretation: given that s 32(2) allows for the influence of international jurisprudence in s 32(1) interpretation, and that the Victorian Charter itself should be interpreted in light of the s32 rights-compatible interpretation obligation, the general limitations power in s 7(2) should be read down so as not to apply to those rights which are viewed as absolute under international law.
The Solicitor-General of Victoria, Pamela Tate SC, has acknowledged that the Victorian Charter does not create any absolute rights, although most of its rights are based on the ICCPR which does contain absolute rights. (54) She argues that '[t]he status of a right at international law, as absolute or not, will be a relevant consideration in determining whether the limitation upon the right ... is reasonable.' (55) Presumably, the logic of Tate's argument is that limits on absolute rights will rarely be reasonable and demonstrably justified, and accordingly not lawful. Whether a right is absolute, and thereby admits no limitation, or whether the right is non-absolute but in practice would never admit a justifiable limitation, is inconsequential on this logic because the ultimate result is the same--that is, the right is not limited in that instance. This is not a sufficient answer to the problem created...
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