The Charter in the suburbs

VEOHRC’s Charter report card, ‘First Steps Forward‘, revealed that many local councils – compellingly regarded as at the coalface of the practical implentation of the Charter, given their service delivery role – were yet to even start crawling during the Charter’s first year:

  • The sector’s preparedness is particularly low in ensuring that the processes involved in developing local laws comply with the Charter and in raising awareness about the Charter within local communities.
  • The failure of 25 local councils to respond to the Commission’s survey suggests a lack of engagement with the Charter by some councils that will need to be addressed by councils, peak bodies and state government in 2008.
  • While recognising the difficulties faced by local councils in engaging fully with the Charter, the sector will need to take stronger action in 2008 to ensure the compatibility of local laws and policies with the Charter and to develop a culture of human rights in local government.

The City of Hobsons Bay didn’t feature on VEHORC’s list of exceptional councils that had taken strong Charter initiatives. However, the latest newletter from the HRLRC brings some good news about the Charter’s impact in the suburbs.

Planning issues involving proposed Islamic facilities are, alas, problematic in Australia. An application by the Quranic Society for rezoning and permission to build a large school in Cawdor attracted considerable media attention, in part because of the involvement of Fred Nile. Cambden Council’s May decision to reject the application, citing a slew of planning concerns, has passed this difficult issue on to NSW Planning and Environment Court. By contrast, an application for rezoning and approval to build a new mosque in Newport West’ Paisley Park has been less difficult. Apart from leafleting by the Australian Protectionist Party, the sailing has been smooth, with a positive report from an expert planning committee and a recent vote in its favour by the City of Hobsons Bay. Is the difference just in the merits of the two applications? Or is this a Sydney/Melbourne thing? Or has the Charter made a difference?

The Panel Report on the proposed Blenheim Road Mosque refers to the Charter prominently in its introduction:

We are conscious that the Charter of Human Rights and Responsibilities seeks to protect and promote certain human rights by placing obligations on all public authorities, including local councils, to act in a way that is compatible with human rights and to give proper consideration to relevant human rights when making decisions. Of particular relevance in this situation are the rights to freedom of religion including communal religious observance, and cultural rights….

We are also conscious that any limitations on the exercise of a human rights must be carefully considered and should be the least restrictive means available to achieve the intended purpose. Our consideration of both the Amendment and the Applicaiton recognises the human rights prooteced by the Chater of Human Rights and Responsibilities and takes into account the obligations placed on public authorities.

The Charter gets a further express mention in the discussion of the proposed rezoing of Paisley Park from Education to, in part, ‘Private sports grounds and ethnic community establishments’ (allowing the construction of a mosque) and, for the remainder, ‘Public Park and Recreation Zone’. In addressing the question of whether this rezoning is ‘strategically jusified’, the Panel introduces the discussion by stating:

[T]he Charter of Human Rights and Responsibilities establishes an obligation to ensure that people can practice their religious beliefs, including communal reigious observance.

This is a pretty strong statement of the effect of the Charter! It depends on the interaction of two Charter provisions:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including-… (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Remembering that ‘act’ is defined to include ‘failure to act’ and a ‘proposal to act’, there is a lot going for the Panel’s view that Councils are obliged to do what they can to allow local religious groups to worship (and teach) in a communal way. Presumably, that would extend to making planning decisions that faciliate buildings for that purpose, at least where existing buildings don’t serve local needs. That is the case here:

It is clear from submissions and inspections that the existing mosque serves an established religious community but is too small to meet their needs. Further, the converted warehouse and dwelling provide substandard facilities for worship. Some of the inadequacies include insufficient and impractical space, poor ablution arrangements, and the effective exclusion of women from worship at the mosque.

But what about the defences to the conduct mandate? Charter s. 38(2) provides:

38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

This strikes me as the key limit on the council’s obligation to meet the needs of local muslims. In my view, it is not satisfied simply by applying the relevant planning rules to the application in a neutral way. Rather, it obliges the Panel (and the council) to grant the approval unless those rules (and any other applicable laws) make doing so ‘unreasonable’.  The Panel’s view roughly equates with this:

We think there is a greater onus on the planning system to enable the provision of facilities that allow religious obligations than other elements of this proposal, although the ancillar recreation facilities would also be a significant benefit.

But planning issues always involve competing interests? What about the rights of other residents in Hobsons Bay?

A number of submissions expressed concerns about the impact of the Mosque (and associated population flows) on local culture, a matter that the Panel deemed irrelevant to planning. More relevantly, a Mr Geoff Knight stated his fear that a large facility serving a minority in a gentrifying area might become a ‘white elephant’. And a number of concerns were raised about traffic and noise associated with the planned religious practices. At a stretch (a very big one!), these concerns might be said to raise some conflicting rights, such as cultural rights and property rights. While there doubtless many answers to an argument that the council’s Charter obligation to respect these rights may cancel its obligation under Charter s. 14, one interesting answer is suggested by a further defence to the conduct mandate:

38(4) Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

This defence, a floor amendment to the Charter, is mainly aimed at allowing religious public authorities (like hospitals and nursing homes) to continue their own religious doctrines. But its terms are broader, exempting bodies like City of Hobsons Bay from being obliged to act compatibly with, say, the property rights of its citizens in a way that impedes a religious body, like the local religious community. So, the Charter at least does not oblige the Council to, say, bar certain religious practices at the mosque to uphold the rights of locals to enjoy their property.

It might be thought that these various concerns may also be dealt with via Charter s. 7(2), the reasonable limits provision mentioned by the Panel in its introduction. But I think the better view is that Charter s. 38(2)’s defence is the sole way to accomodate non-Charter concerns. It’s not good enough, for instance, for the Panel to simply declare that its planning rules meet the reasonable limits test. Rather, it must accomodate the mosque unless those rules make doing so unreasonable (and those rules must both be interpeted according to Charter s. 32 and, where possible, amended in accordance with Charter s. 38 to accomodate the mosque’s needs so far as is reasonable.)

The Panel proceeded in what strikes me as the appropriate way (albeit, of course, not exactly toeing the line on every Charter nuance!) It rejected Knight’s submission:

The Hobsons Bay community comprises people from diverse backgrounds with many different religious beliefs and practices. We are of the view that it is an iportant function of planning to facilitate the provision of community infrastructure to meet the divesity of community needs, including accomodating various requirements for religious observance.

Its conclusion on strategic planning again gave prominence to the Charter:

The Charter of Human RIghts and Responsibilities, the policy predisposition in favour of meeting needs for community facilities, and the conspicuous need for a new moseque support approval of the Amendment.

Perhaps a little disappointingly, the Charter got no  further mention in the analysis of the nitty-gritty of rezoning and approval.

The Council’s approval of the development could be appealed to VCAT. VCAT is, of course, exempt from the Charter except in its ‘adminstrative capacity’. What a disaster it would be if VCAT was less bound by the Charter than the local councils!

And here’s an interesting hypothetical: would Camden Council have decided the same way (and, if it did, would the appeal to the NSW Planning and Environment Court be different) if the Charter was applicable to its decision?

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