The Charter vs the ICCPR

During the second reading debate on the ART/Embryo/Cloning bills, the shadow A-G, not a big fan of the Charter or international human rights law, referred to both:

The Attorney-General is a very proud advocate, as we know, of his charter of human rights and responsibilities. That charter is based on the International Covenant on Civil and Political Rights of 1966. Article 23 of that covenant provides that: …

The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. The right of men and women of marriageable age to marry and to found a family shall be recognised.

So it seems to me that the international covenant to which Australia is a signatory and has undertaken to the international community to comply with is one that is founded on men and women forming a family and having a right to bring up their children and found a family on that basis….

There’s a reason he cites the ICCPR and not the Charter. The latter provides:

17(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

The differences are no accident. The EM says:

It is not Parliament’s intention to create a right to found a family in the Charter. Parliament intends that the term “families” be given a meaning that recognises the diversity of families that live in Victoria, all of whom are worthy of protection.

The deliberate broad definition of ‘family’ is consistent with the UN Human Rights Committee’s General Comment, which leaves definitional matters to member states:

The Committee notes that the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition. However, the Committee emphasizes that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23.

The reason for omitting the word ‘natural’ from the Charter, while not spelt out, is presumably similar. Doubtless, it might not have sat all that well with the artificial methods of reproduction contemplated in the Assisted Reproductive Technology Bill 2008. Speaking of artificial, what the hell is a ‘group unit’, anyway?

That the ART Bill was very much in mind was confirmed in the Consultation Committee report, which gives the following reasons for the lack of a right to found a family:

The Committee considers the right to found a family to be an essential civil and political right that people would expect to see in a human rights instrument. However, the Committee is mindful that the Victorian Law Reform Commission is currently undertaking a reference on assisted reproduction and adoption. This has involved the release of interim position papers and significant community consultation. The results of this reference will have implications for the right to found a family for single people and for same-sex couples in areas such as access to assisted reproductive technologies, recognition of legal parentage and rights to adoption. The Victorian Law Reform Commission has stated in its latest position paper that it anticipates tabling its final report in Parliament during 2006. The Committee does not wish to pre-empt the results of this comprehensive process and therefore does not make a recommendation to include the right to found a family in the Charter. The Committee does, however, recommend that consideration be given to whether the Charter should be expanded to include the right to found a family as part of the four year review process.

This explanation is notable for its concern about making the Charter conform with local norms, rather than promoting the international covenants to which Australia is a party. 

The various differences between the Charter and the ICCPR have implications in the domestic legal system, rather than just internationally or in parliamentary rhetoric. Victoria’s new Evidence Act 2008 has a provision on the exclusion of illegally or improperly obtained evidence, which tells courts to consider a number of factors, including:

138(3)(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights

The reference to the ICCPR, rather than the Charter, presumably designed to promote the goal of uniformity with the evidence law of other Australian jurisdictions, has the curious effect of requiring courts (themselves exempt from the Charter obligation to consider Charter rights) to consider ICCPR rights instead. It’s difficult to see how the differences between the ICCPR and Charter s. 17(1) could come up in this context, but it’s possible that other differences between the two – perhaps the unfortunate gloss on the right to confrontation in Charter s. 25(2)(g) – might come into play.

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