The Charter’s first report card

These days, report cards aren’t the feared documents I recall from my school days. My toddler’s creche gives its ‘students’ report cards. As you might imagine, they aren’t heavy on the criticism. Nevertheless, you’d have to be a very proud parent to miss the faintness of some of the praise they came up with: “Zachary has a lot of fun trying to eat”; “Zachary primarily communicates through laughter”; “Zachary is learning to explore other children and their hair.”; “Zachary is starting to learn about cause and effect. He spends all day tapping the floor with a toy hammer.” At least he’s happy.

The Charter got its first report card today, courtesy of its chief carer VEOHRC and Charter s. 41(a):

The Commission has the following functions in relation to this Charter-

(a) to present to the Attorney-General an annual report that examines-

(i) the operation of this Charter, including its interaction with other statutory provisions and the common law; and

(ii) all declarations of inconsistent interpretation made during the relevant year; and

(iii) all override declarations made during the relevant year

There’s nothing to report on paras (ii) and (iii) to date (if there ever will be), and the Charter was hobbled in its first year by the delayed commencement of the interpretation and conduct mandates, but VEOHRC’s report still runs to 80 pages. It’s called “First Steps Forward“. (Sniff. That’s more praise than Zachary got when he was one. He first walked at 18 months, just scraping into the 5th percentile.)

I found First Steps Forward a surprisingly illuminating read for an annual report (but that’s me.) For those who aren’t so involved, here’s some interesting instances of measured praise:

  • Reporting: While many of the Charter’s provisions are modelled on similar instruments from other jurisdictions – most notably the United Kingdom, New Zealand, Canada and the Australian Capital Territory – the reporting function is unique to Victoria. The Commission regards the reporting role as critical to our responsibilities as an advocate for an monitor for human rights compliance. Indeed, the Commission believes that the reporting role provides a range of opportunities to execute these responsibilities in active and purposeful ways. However, the Commission also notes that the function has limitations. In particular, while the function is meant to result in an independent report on the operation of the Charter, it is not supported by any power to require public authorities to supply relevant information.
  • Education: Looking ahead a critical challenge for agencies will be sustaining interest and momentum in communication and education after the initial driver of activity passes (the full commencement of the Charter on 1 January 2008) and the allocation of specific resources is depleted
  • Legislation: The Commission’s view is that the work undertaken by all departments and Victoria Police leaves them well-placed to meet the obligations of the Charter applicable to new and existing legislation. In reaching this conclusion, it is important to emphasise that the Commission is commenting on the capacity for and level of engagement demonstrated by agencies, not the specific content of an agency’s analysis regarding the compatibility of new or existing legislation with the rights protected under the Charter.
  • Policy: A general pattern emerging in the reports provided to the Commission was that as the level of direct engagement between departments and the public decreased, so too did the prominence attached to the review of policies and service delivery.
  • Local government: Alongside the strong message from councils responding to the Commission’s survey about the need for specific local government resources, a number of councils were candid in advising that they had few plans to pursue Charter compliance initiatives in 2008.
  • Community: [T]he absence of an individual complaints mechanism makes it extremely challenging to convince some audiences that the Charter can effectively promote and protect human rights in Victoria.
  • Parliament: In reflecting on the Charter’s overall impact on the legislative process during 2007, the Commission believes it is informative to ask one very simple question: if it was not for the Charter, would the human rights dimensions of these 93 Bills have been identified, analysed and debated? In all but a very few cases, the answer is clearly ‘no’. For this reason alone, the initial impact of the Charter is significant: It has already comprehensively expanded the parameters of public policy analysis to include the transparent assessment of new laws against a human rights framework. This is a substantial achievement.
  • Courts and tribunals: The Commission argued that from 1 January 2007, VCAT would be required to exercise its broad discretion to grant exemptions under the EOA compatibly with the Charter. We submitted that whilst this duty did not yet apply, the principles of the reasonable limitations framework contained in section 7 of the Charter should be used to assess whether the applicant had demonstrated that the exemption sought was appropriate. Justice Morris held that while helpful, the elements of a reasonable limitations test do no more than expand on the more succinct test of assessing whether a proposed exemption is necessary or desirable to avoid an unreasonable outcome.
  • Cultural change: [W]e are at such an early point in the process that any attempt to assess or measure progress may risk devaluing the concept of cultural change.
  • 2008: The Commission believes that the next 12 months will be crucial in determining whether the Charter becomes a genuine and lasting force for change, generating new approaches and practices across government and making a positive difference in the lives of Victorians.

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