Britain learns from Victoria

Victoria’s Charter clearly owes more to Britain’s Human Rights Act than any other (domestic) rights document. So, it’s interesting that Britain is looking to Victoria in its examination of whether it should introduce a new British Bill of Rights. The UK Joint Committee on Human Rights recently issued a report on its preferred model, which included the following references to Victoria:

  • The report cited Victoria (alongside other Australian jurisdictions) as a rebuttal of the claim that a bill of rights can only emerge following a crisis (like the American or French Revolutions, or Apartheid.) The Australian statutes are actually no evidence of this, as the rights they protect (like the UK’s own Human Rights Act) are almost exclusively drawn from international treaties that were developed in the aftermath of World War Two. Canada, also cited by the Report, is a better example (although it did come in the midst of the Quebec seccessionist crisis.)
  • The report endorsed Victoria’s approach of placing ‘the legislature central to the process of human rights protection’. The JCHR’s skeleton draft bill indeed copies Charter s. 28’s requirement that the government issue a detailed statement of compatibility stating how a bill is compatible with human rights (which it noted was inspired by the JCHR’s own experience.) Its version of Charter s. 28 is enhanced by a requirement for a human rights ‘impact statement’ and the extension of the requirement to statutory instruments and orders in council. On the other hand, the draft bill contains no provision equivalent to Charter s. 30 requiring a JCHR report on each bill, presumably reflecting its own decision not to provide a comprehensive scrutiny function.
  • The report endorsed Victoria’s requirement in Chater s. 37 that the government make a formal response to Parliament in the event of a declaration of incompatibility. However, its draft expands on the requirement, setting a three month deadline for an initial response, a six month deadline for a remedial response, a requirement for a parliamentary motion in response to both statements and a power for a court to judge the remedial action. Needless to say, the JCHR draft doesn’t use Victoria’s dreadful ‘declaration of inconsistent interpretation’ terminology.
  • The report adopted Victoria’s requirement of statutory reviews, replacing the four-year and eight-year reviews by the Attorney-General mandated by Charter ss. 44 and 45 with a single five-year review performed by an ‘independent panel’.
  • The report wholeheartedly endorsed the consultative process that led to the adoption of Victoria’s Charter, ‘in particular its focus on public engagement’.

All up, a very positive verdict on the Charter. That being said, the JCHR folks seem to follow the ‘if you don’t have anything nice to say, don’t say it’ approach, at least as regards comparative lessons of the negative variety. Notably, the JCHR wholly rejected the government’s proposal for a British Bill of Rights and Duties: (BORAD!)

It seems to us that the Government is saying no more, than that rights are capable of being limited by competing interests. That is already provided for in the text of the ECHR and to the extent that it is not appreciated, it is surely a matter for education of the public rather than any attempt to amend the text or to redefine in the text of any new Bill of Rights.

We are therefore strongly opposed to any UK Bill of Rights being called either a Bill of Rights and Duties or a Bill of Rights and Responsibilities. Rights should not be contingent on performing responsibilities, nor should a Bill of Rights impose enforceable duties on individuals or responsibilities which they are already required by the general law to discharge.

The JCHR was polite enough not to point out that there was already one jurisdiction that has made the unfortunate choice of putting a reference to reponsibilities in its human rights law. (That being said, I never thought that anyone would come up with an even worse title than the Charter’s, but I’m wrong. What next?: the Queensland Checklist of Rights and Miseries? The JCHR recommended the UK Bill of Rights and Freedoms.)

Indeed, the JCHR’s hearty endorsement of Victoria’s consultative process doesn’t extend to a lot of the outcomes of that very process (which the JCHR failed to note closely followed the government’s statement of intent and were subject to meddling.) A lot of the JCHR’s recommendations for its BORAF are at odds with fundamentals of the Charter, including adding plenty of new rights to the list that go far beyond the ICCPR and having an express requirement that the common law is to be interpreted in a way that is compatible with human rights. Interestingly, too, its conduct mandate requires not only compatible actions but a requirement to take ‘active steps to repect, protect, promote and fulfill’ the rights in the Bill. And, of course, there’s no Charter ss.4(1)(j),  6, 39, 48 or 49.

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