The law giveth and the law taketh away

Someone I know said, “Once people have been given rights, they can’t be taken away”.

Tell that to gays and lesbians in the ACT, or to the NT citizens whose right to euthanasia was overridden.

Or, closer to home, to us Victorians regarding the Victorian Charter of Human Rights and Responsibilities.

The Scrutiny of Acts and Regulations Committee (SARC) Review of the Victorian Charter is a 226-page document, so it is only possible to scratch the surface of what it has recommended. Parliament has six months to consider the review, after which any revisions to the charter legislation will be drafted and presented for a vote.

SARC had the opportunity to recommend that citizens’ economic, social and cultural rights — such as housing, health, disability, and education, (plus a few LGBTI rights) — be added to those existing civil and political rights included in the charter, but instead found “that the case for adding new categories of rights, reviews and proceedings to the existing Charter has not been made”.

Although disappointing, this should not really be surprising, since SARC is the body that brought the continuing religious exceptions and exemptions to the Equal Opportunity Act a couple of years ago.

The contentious issue of whether judges could refer to overseas law, such as UN covenants of human rights, when deciding domestic legal cases came to the fore with the Tasmanian gay rights action in the late 1990s. In that case, the pendulum swung more to the affirmative than some politicians would have liked.

Now, with this review, SARC seems to be implying that the power balance between the judiciary and the executive (i.e. Parliament) should swing back in Parliament’s favour, to some extent.

The balance between these two institutions, in a democracy, is fundamental and vital.
SARC seeks “to confirm the Parliament’s continuing authority to enact any statute, including statutes that are incompatible with human rights” and recommends that the Victorian charter “not be amended to provide for an independent legal remedy or damages for breaches of charter”.

So, if your human rights are abused, you would have less of a chance to take successful court action to redress the situation if Parliament were to follow SARC’s recommendations. (Visit www.hrlc.org.au for a more in-depth discussion).

Happily, we can pursue our rights, federally, with submissions on consolidation of anti-discrimination law. For details, visit www.ag.gov.au/antidiscrimination

By Barbary Clarke, co-convenor of the VGLRL’s Policy Working Group.