Monday saw a first in the Charter’s short history: the addition of five new rights.
The five new rights are:
- the right to enjoy your human rights without discrimination on the basis of employment activity
- the entitlement to equal protection of the law without discrimination on the basis of employment activity
- the right to equal and effective protection against discrimination on the basis of employment activity
- the right of children to protection according to their best interests and needs without discrimination on the basis of employment activity
- the entitlement of criminal defendants to minimum due process guarantees without discrimination on the basis of employment activity
That being said, the key term ’employment activity’ has a pretty narrow definition. It refers only to the acts of employees making reasonable requests and expressing concerns about their employment entitlements.
While the creation of new rights is only a once-a-decade occurrence in many countries, and more like once-a-century in the US, it is likely to be a much more routine event here. The reason is a happy byproduct of a more dubious aspect of the Charter: its penchant for tying the definition of some human rights to other Victorian statutes. The two examples are the right to legal aid ‘under the Legal Aid Act 1978‘ if eligible under that act; and the various rights against discrimination, as that term is defined in the Equal Opportunity Act 1995. This Monday’s new rights arose automatically with the commencement of an amendment to the latter act passed in May last year.
Alas (but obviously), this momentous event in human rights law is built on some less-than-momentous politics: a minor event in the Victorian government’s campaign against John Howard’s (now defunct) WorkChoices. Like the Charter itself, it was passed by a divided parliament upon party lines. Although the impact on the Charter was noted in the Statement of Compatibility, it went unmentioned in the Second Reading speech and the entire parliamenty debate. This is, of course, what happens when a fundamental statute has some of its terms defined by other (slightly) lesser statutes. The quasi-constitutional status of the Charter (to the extent that it has acquired that) is ratcheted down to the status of those other statutes.
In this case, the result was positive (albeit minor.) A further expansion to the definition of discrimination is pending this year, once the Equal Opportunity (Family Responsibilities) Amendment Act 2008 commences (by September this year.) That Act expands the concept of discrimination to include not merely discrimination on the basis of attributes, but also particular conduct – unreasonably failing to accommodate parenting and caring needs – by employers. Again, it’s another flurry in the WorkChoices war and the Charter again went unmentioned in the parliamentary debate, which again split along party lines. Although the Statement of Compatibility claimed that this change too will add to Victorians’ Charter rights, that claim is less certain, because Charter s. 3 defines discrimination as ‘discrimination… on the basis of an attribute’, rather than the new sort of discrimination by conduct that the new Act introduces.
But it’s not all good. Victorians probably lost a human right – which is a very rare event, comparatively – in December last year with the commencement of s. 23 of the Transport Legislation Amendment Act 2007, which narrowed the definition of discrimination so that it didn’t cover the refusal of student transport discounts on the basis of students’ race (including nationality.) When queried by SARC as to whether this legislative change would narrow Victorians’ Charter rights (sans override or any recognition of that fact, including in the Statement of Compatibility), the Minister replied (surprisingly) that that wasn’t parliament’s job to decide:
This is complex issue. It is a matter of statutory interpretation. Similar to the approach taken when the Charter was developed, it is best left to the courts to consider and determine should the issue arise in any future litigation.
If the new statute has reduced Charter rights, then that can’t be remedied by either the interpretation mandate or a declaration of inconsistent interpretation, as their capacity to protect Charter rights will be similarly reduced. This is the way Charter rights end (as well as start.) Not with a bang, but a whimper. The legislation passed unanimously.