Charting Human Rights
Governments outside Victoria will be watching closely as, from this year, the state’s public sector has become bound by a Charter of Human Rights and Responsibilities.
Victoria became the first State to adopt a “Bill of Rights” when the Charter of Human Rights and Responsibilities Act 2006 (the Charter) became law.
More than 20 groups of rights are contained in the Charter under the principles of freedom, respect, equality and dignity. They include the right to vote and freedom of expression and religion, the right to a free trial and to privacy. The responsibilities that go with these rights are also laid out, including the requirement to respect other people’s rights.
While the Charter of Rights came into force on 1 January 2007, obligatory compliance for the public bodies did not come into effect until this year.
From 1 January, government departments and all other public bodies, such as local councils and the police, are compelled to take human rights into consideration when making any laws or policies or providing any service in their day-to-day operation.
All new laws introduced into state Parliament will need to be certified as meeting the standard set by the Charter. Where rights are limited in the public interest, those limitations will have to be justified and fully explained.
While courts will not have the power to strike down legislation, the Supreme Court can issue a “declaration of incompatibility” requiring the government to reconsider legislation. In exceptional circumstances, such as a security threat or a state of emergency, Parliament may override human rights by issuing a special declaration.
The Charter, which was developed following intensive community consultation, doesn’t allow individuals to sue for damages if their human rights are breached but focuses on the role of lawyers in upholding people’s rights.
A recent local council decision raised questions about whether it may be unlawful for a council to refuse to grant a planning permit or to fine an artist for failing to obtain a planning permit, without having regard to the artist’s right to freedom of expression.
In January 2007, the Nillumbik Shire Council decided to fine an artist for failing to obtain a planning permit for a sculpture called “The Finger”. Two years earlier, the Council granted a planning permit to the artist for a new dwelling and swimming pool allowing works and vegetation removal on the artist’s block of land in North Warrandyte.
The artist’s back fence neighbour, together with other residents and community groups applied to the Victorian Civil and Administrative Tribunal to have the decision reviewed. The artist eventually succeeded in obtaining the planning permit, with some additions, and built the new house. The artist also created a 4.2 metre high sculpture of a fist with the middle finger raised and placed it in his backyard in full view of the neighbour’s property. The external shape of the finger could be lit up at night.
The council considered The Finger was a “structure” and ordered its removal by a certain date. When the artist had not removed it by the due date, he was then fined $537.
While laws at the time gave the council the power to deny a planning permit for the sculpture and to prosecute for the failure to obtain a planning permit, if the dispute had happened this year, when public authorities must have regard for the Charter, it could be possible that the council’s decision could be in breach of the artist’s right to freedom of expression by way of art as defined in the Charter.
One option for the council could have been to require tree planting on the artist’s land to screen the neighbour’s direct view of the sculpture, thus ensuring the artist’s right to be free to express himself didn’t contravene his neighbour’s human rights.
Either way, the issue is an example of the balancing act public bodies may soon find themselves facing.
More information
From the LIV Bookshop A Charter of Rights for Australia by George Williams, $17
Visit www.justice.vic.gov.au/humanrights/ and the Human Rights Law Resource Centre at http://www.hrlrc.org.au/
Disclaimer: The information in this newsletter is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Ms Eleanor Coates or Sam Marash of our office.
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