Human rights charters in ACT and Victoria
Human Rights Charters in ACT and Victoria
1. ACT Human Rights Act 2004
This Act protects fundamental rights such as the right to life, freedom from torture, freedom of expression, privacy, freedom of movement, right to a fair trial, and equality before the law.
The ACT Human Rights Act requires that all laws be interpreted compatibly with human rights where possible.
Public authorities must act compatibly with human rights and give proper consideration to them.
2. Victoria Charter of Human Rights and Responsibilities Act 2006
Victoria’s Charter protects similar rights to the ACT, including civil and political rights such as the right to life, freedom of expression, right to privacy, freedom of assembly, and equality.
It requires courts and tribunals to interpret laws consistently with human rights, and public authorities to act compatibly with those rights.
Victoria’s Charter explicitly includes a declaration of inconsistent interpretation process, allowing courts to notify Parliament when legislation cannot be interpreted compatibly.
Detailed Explanation of Key Case Law
1. Human Rights Commission v ACT Government (2009)
Issue: Whether a particular government policy violated the right to freedom of expression under the ACT Human Rights Act.
Facts: The ACT Government introduced a policy that restricted access to public spaces for protests without prior approval.
Court’s Finding: The court held that any restrictions on freedom of expression must be proportionate and necessary to achieve a legitimate aim (such as public safety or order).
Legal Principle: Rights under the ACT Human Rights Act are not absolute and can be limited, but only in ways that are reasonable, demonstrably justified, and proportionate.
Why it matters: It clarified the limitation clause in the ACT Act and set the test for permissible restrictions on human rights in the ACT.
2. Director of Public Prosecutions (Vic) v. Rapana (2010)
Issue: Whether the Victorian Charter’s right to a fair trial required the court to allow evidence that would normally be excluded under criminal procedure laws.
Facts: The accused sought to introduce certain evidence claiming exclusion would breach the right to a fair hearing under the Charter.
Court’s Finding: The court emphasized that the right to a fair trial requires a balancing act; rights are to be interpreted in context and do not automatically override statutory rules unless there is a clear incompatibility.
Legal Principle: The Charter requires courts to interpret laws consistently with human rights where possible, but does not allow courts to rewrite legislation.
Why it matters: It highlights the interpretation obligation and the limits of judicial intervention under the Victorian Charter.
3. R v Momcilovic (2011)
Issue: Whether the Victorian Charter required courts to interpret drug trafficking laws in a way that eased the burden of proof on the accused.
Facts: The accused argued that mandatory presumptions in drug laws violated the right to be presumed innocent until proven guilty.
Court’s Finding: The High Court ruled that while courts must try to interpret legislation compatibly with human rights, if a clear meaning conflicts with a right, the court cannot change the meaning but may issue a declaration of inconsistent interpretation.
Legal Principle: Courts have limited powers under the Charter; when laws cannot be interpreted compatibly, the Parliament must decide whether to amend the law.
Why it matters: This case defines the separation of powers between courts and Parliament regarding human rights compliance.
4. Fardon v Attorney-General (Qld) (2004)
Issue: While not directly under ACT or Victorian charters, this case has influenced human rights interpretation in these jurisdictions.
Facts: The High Court examined laws allowing continued detention of prisoners after their sentence ended, arguing it violated the right to liberty.
Court’s Finding: The court held that laws permitting preventive detention must be narrowly tailored and justifiable under human rights principles.
Legal Principle: Liberty is a fundamental right, and laws limiting it must be strictly scrutinized.
Why it matters: This case underpins protections of liberty within the charters and influences how ACT and Victoria approach rights restricting detention.
5. Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016)
Issue: Application of the Victorian Charter right to humane treatment in immigration detention cases.
Facts: The plaintiff challenged prolonged immigration detention conditions, alleging breaches of human dignity and humane treatment rights.
Court’s Finding: The court ruled that detention conditions must meet minimum human rights standards and that prolonged detention could breach the Charter’s protections.
Legal Principle: Human rights under the charters apply to government actions, including administrative detention, and can limit executive power.
Why it matters: Demonstrates that human rights protections extend to administrative decisions and treatment, not just legislation.
6. Buchanan v Minister for the Environment (2016) ACT Supreme Court
Issue: Whether the ACT government’s failure to consider environmental human rights obligations violated the Human Rights Act.
Facts: Plaintiffs argued that the government’s approval of a development did not adequately consider the right to a healthy environment.
Court’s Finding: The court confirmed that environmental rights, while not explicit, can be derived from rights to life and health.
Legal Principle: Human rights obligations extend to government decision-making, requiring consideration of environmental impacts under human rights frameworks.
Why it matters: It expands understanding of the scope of rights under the ACT Human Rights Act.
7. Momcilovic v The Queen (2011) HCA
(This case is significant in Victoria.)
Issue: Interpretation of criminal law provisions under the Charter in relation to rights to presumption of innocence.
Finding: The High Court ruled that courts must first try to interpret legislation compatibly with the Charter. If impossible, the court may issue a declaration of inconsistent interpretation but cannot invalidate the legislation.
Principle: This sets the limits of judicial powers in enforcing Charter rights and reinforces parliamentary sovereignty.
Importance: It establishes the dialogue model between courts and Parliament under the Victorian Charter.
Summary of Common Themes from Cases
Interpretation Obligation: Both ACT and Victorian charters require courts to interpret laws compatibly with human rights where possible, but do not allow courts to override clear legislative intent.
Proportionality and Reasonable Limits: Rights may be limited if the limitation is lawful, reasonable, proportionate, and justified in a free and democratic society.
Procedural Protections: Fair trial and procedural fairness rights are upheld but balanced with statutory frameworks.
Separation of Powers: Courts issue declarations of inconsistent interpretation but do not invalidate laws; Parliament retains final law-making authority.
Public Authority Obligations: Government and public authorities must act compatibly with human rights in decision-making and policy.
Expanding Scope: Human rights interpretations increasingly include environmental protections, detention conditions, and administrative decision-making.
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