HPLC responds to mischievous Charter criticisms
Following the election of the Baillieu government, critics of Victoria's Charter of Human Rights and Responsibilities are lining up to malign and belittle the achievements of this ground-breaking legislation. Unfortunately, the arguments presented by these critics don't stand up to scrutiny.
Recently, the Australian has published pieces from academic Mirko Bagaric and barrister Peter Faris.
Bagaric represents that the Charter 'has proven to be an irrelevant and unworkable document. In the criminal law domain ... there is only one reported judgment where the charter has operated to expand the operation of a human right.' Bagaric is factually incorrect, as Victoria's Courts have considered human rights in a number of criminal law contexts, including prison conditions, the rights of self-represented litigants, and the right against self-incrimination.
However, and more disappointingly, Bagaric ignores the notable achievements across a number of areas outside criminal law.
At the PILCH Homeless Persons' Legal Clinic, we use the Charter regularly to prevent people entering homelessness. While this is often done in a litigation context, the 'dialogical' framework also enables us to discuss clients' circumstances and rights before vulnerable people are evicted into homelessness.
One client, Rebecca, was an older woman with a history of homelessness and mental illness. She was living in transitional housing, and had been served with a notice to vacate this property, as her relationship with her caseworker had deteriorated. The landlord rigidly applied their policies and failed to consider Rebecca's personal circumstances, including her right to be free from arbitrary interference with her home, which is protected under the Charter. The Clinic advocated for Rebecca and assisted her, her landlord and her landlord to work together to ensure she had appropriate supports. Without the Charter bringing the parties to the table, this conversation would not have happened, and Rebecca would be back living on the streets.
Housing is just one of the areas in which the Charter has expanded the operation of human rights in Victoria. Mental health and primary health services, provision of education, residential care services, government information and accountability, the rights of victims of Black Saturday and asylum seekers have all been expanded by operation of the Charter, and this has generally occurred outside the Courts. In limiting his consideration of the Charter to reported Court decisions in the criminal law context, Mirko Bagaric fails to consider the real and constructive influence of the Charter across the Victorian community.
And then there is Peter Faris QC, who suggests the human right to freedom of religion 'makes it very likely that, at some stage in the future, Shariah law will be applied'. In Faris' mind, this argument is bolstered by the fact that the Charter permits the consideration of international laws and judgments in applying the Charter.
Faris' argument is ludicrous.
Firstly, Faris' thought bubble that freedom of religion requires that Shariah law be followed is just wrong. Human rights are not absolute, and there is always a balancing act between competing rights in any society, whether or not human rights laws are enacted. It is proper that Victorians' human rights are considered by the Courts and other arms of government, but to suggest 'open slather' on the exercise of particular religious or cultural practices is wrong. If we were to follow Faris' flawed logic, the sacrifice of virgins must be allowed in Victoria in the exercise of pre-Christian pagan rituals. The argument simply doesn't stack up.
Secondly, international laws and judgments have been applied in Australian courts since white settlement. Cases from around the world have informed Australia's courts since well before the Charter came into effect. While they have been considered by the Courts, many of these cases have been ignored as they are not relevant in the Australian context. There is no reason to suggest that because a particular Court in a particular country makes a particular decision, Australian courts are bound to follow them, and any suggestion to the contrary is mischievous at best.
It is disappointing that the discourse around human rights protections in Victoria and Australia is subjected to obfuscation, mischievousness and alarmism. When the whole story is considered, it is clear that Victoria's Charter is protecting vulnerable Victorians' human rights in a number of areas. The Charter is one of the former government's most notable achievements, and Victoria's leadership should be replicated across Australia.
James Farrell is Manager/Principal Lawyer of the PILCH Homeless Persons' Legal Clinic