The Charter of Human Rights and Responsibilities Act 2006 (Vic) is the most dramatic development in Victorian human rights law ever. While, of course, this significance is mostly due to the muted role that human rights have formerly played in the state’s laws, it also reflects the potential for the statute to completely reverse that tradition. At this early stage, however, it is vital to emphasise the word ‘potential’. Notably, all of the legal provisions of the Charter are subject to significant caveats, which is why this blog refers to the three main ones as ‘mandates’.
This page outlines the Charter’s core features. The first section will examine the general nature of the protection for people’s rights that the Charter offers. The second and third sections will analyse how the Charter meets two potential threats to those rights: laws and people.
The Charter sets out three broad rules:
- Rights mandate: Human rights can only be limited by laws that pursue an important and legitimate purpose in a rational, proportionate and parsimonious way.
- Interpretation mandate: Victorian statutory provisions must be read in a way that makes them comply with the rights mandate, but only if such readings are consistent with their purpose and words.
- Conduct mandate: Public authorities must comply with the rights mandate unless doing so would contradict or frustrate any other law.
However, the implementation of these mandates is (deliberately) weak. The Charter is a statute that can be repealed or superseded by later statutes; moreover, each of the mandates is expressly limited by all other laws, past or present, and whatever their source. The mandates don’t bind parliament (except for its behaviour that is not connected to its legislative function); legislators are instead only required to state and scrutinise whether or not, and how, new bills comply with the rights mandate. The conduct mandate doesn’t bind courts (except when they act in an administrative function); moreover, the courts can only provide remedies for others’ breaches of the Charter if non-Charter laws regulating illegal behaviour are available for the particular conduct in question.
The Charter’s potential effect is broad. The rights mandate’s scope covers the entirety of the legal system; however, lengthy, cross-border, federal or corporate proceedings are excluded wholly or partly from it The statute provides for courts to prompt a dialogue between branches of government about laws that breach the rights mandate. Familiarisation, involvement and scrutiny of their compliance with the conduct mandate may prompt institutions to develop a culture of awareness, engagement and commitment to the rights mandate.
The rights mandate
The most striking feature of the Charter is Part 2, which ‘set[s] out’ various human rights.Each section or sub-section is either a declaration that a defined group of people ‘has’ a particular right or entitlement or a broad rule about what ‘must’ or ‘must not’ happen to someone. The list of rights is largely drawn from the International Covenant on Civil and Political Rights. Copying the ICCPR rights has the advantages of being uniform, non-parochial and building on established jurisprudence. Indeed, the Charter expressly permits local courts to look to relevant overseas decisions when interpreting local statutes, including the Charter itself.
But following the ICCPR also has downsides. The ICCPR is the product of its era and of compromise. While rights like life and conscience can be considered universal or even natural, legal rights are the product of legal systems that vary over time and across national borders. The result is that the legal process rights protected by the Charter are either the lowest common denominators of the world’s major legal systems or the ad hoc results of the give-and-take of treaty negotiations from the middle of the last century.
The Charter also contains something the ICCPR lacks: a provision for limiting every right:
7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
This general limitation provision reflects modern human rights jurisprudence, which regards rights as relative to other rights and compelling interests. While a general limitation provision appears to detract from human rights, it may enhance the protection offered by the statute by removing the temptation to give narrow readings to particular rights that are regarded as incompatible with other rights or interests. Instead, it focuses attention on those competing agendas and, especially, their legal implementation.
The presence of a general limitation provision means that the Charter doesn’t forbid anyone from breaching any of the rights in its list. Rather, its rights mandate is about how such a breach can happen: it can only happen by (or under the authority of) a law; indeed, the limit must be a particular sort of law. Courts applying similar provisions have required proof that a limiting law will achieve something sufficiently important and do so in a rational, proportional and parsimonious way . In short, any law that limits a human right – and many laws do – must be well thought-out and competently drafted. To say the least, such standards have not always been met in Victorian statutes.
A much less enlightened feature of the Charter is specific limitations on particular rights. Some of these copy the ICCPR and may be justifiable as an attempt to draw on comparative jurisprudence. Others are less defensible, seemingly motivated by a desire to ensure that the new human rights are compatible with existing laws. Some rights are expressed as rights against ‘unlawful’ conduct or as guaranteeing a procedure ‘unless otherwise provided for by law’, although these qualifications can be read as only referring to laws that meet minimum standards of rationality: In other instances, particular rights are defined, not in general terms, but instead by reference to the contents of existing statutes, on topics such as discrimination and legal aid. The common vice of all specific limitations is that they exempt laws that fall within them from the general rights mandate, i.e. that they be reasonable and demonstrably justified.
Many of the world’s human rights laws, notably the United States’ famous bill of rights, are part of national constitutions that cannot be easily altered by the government of the day. Such human rights laws are supreme. For example, Americans can rely on the various rights in their federal constitution, regardless of what any of its fifty-one parliaments or executive governments, or the voters of America, says. This approach – and, especially, the final say it gives its courts on legal and political controversies – was rejected in Victoria. Instead, the core principle of the Charter is that parliament has the final say on human rights, a principle that is eloquently expressed by the simple fact that it is an ordinary statute.
So, the Charter may simply be repealed according to the whims of a majority of parliamentarians from time to time. Overseas experience of similar statutes suggests that this won’t happen; indeed, Canada’s constitutional Charter of Rights and Freedoms was preceded by a statute that was similar to Victoria’s Charter.That experience may demonstrate the capacity of such statutes to quickly acquire quasi-constitutional status; repealing a statute that purports to protect and promote everyone’s rights, while legally straightforward, may become politically unpalatable, if not impossible. Alternatively, it might signal the limited impact of modern rights laws on governments’ agendas. This is especially true in the Victoria, where parliament has not placed any limitation on the passage of new statutes. Why bear the political cost of expressly repealing the Charter when any new statute can do so, implicitly, to the extent of any inconsistency?
Even describing the Charter as an ordinary statute is an overstatement. The respective lists of rights are not only subject to substantive limits (outlined above) but also a procedural one: they aren’t self-enforcing. Rather any legal effect they have depends on other parts of the statute that spell out what can (and can’t) happen if something occurs that isn’t ‘consistent’ or ‘compatible’ with human rights. As will be detailed below, those provisions have a common feature: they don’t override any other law. So, Victorians remain subject to all other laws, past or future, and whether sourced from parliament, the courts or elsewhere. Moreover, the Charter does not provide any remedies of its own for breaches of the conduct mandate; rather, such remedies are also supplied exclusively by other laws. In short, far from being a ‘supreme’ law, the Charter is actually the weakest law in Victoria.
Nevertheless, it is still a law. Mere acts of parliament, including such venerable examples as the Magna Carta and the 1689 Bill of Rights, can and have protected human rights. Even statutes that are expressly or implicitly subject to all other laws can still protect rights, notably where those laws do not apply or through procedures that do not detract from the substance of those worlds
Legal system reform
The standout feature of the Charter from the perspective of reform of the legal system is the generality of the rights mandate and the broad scope (if not effect) of the legal rules the statute sets down. In contrast to the piecemeal reforms that have always characterised the development of Australia’s laws, every aspect of Victoria’s legal system, from the earliest stages of litigation through the trial to consequences and beyond, may potentially be altered by it.
However, being an ordinary statute, the Charter is also subject to a variety of built-in limits to their operation, i.e. who, when and where it applies. While such constraints are typical in run-of-the-mill legislation with modest goals, its presence in laws that provide general protection for human rights detracts from its universality. In particular, the statute’s legal process rights may be unavailable, in whole or in part, in the following litigation:
- Federal matters: A lot of litigation and prosecutions in Victoria are founded on federal laws. The Charter provides no protection from such laws. However, because federal crimes are nearly always tried in state and territory courts – and because federal judicial legislation ‘picks up’ local procedural laws – federal criminal defendants may be able to rely on some of their new rights to the extent that local statutes or local agencies had a role in the investigation, prosecution or trial. But any protection must give way to contrary federal statutes, including the federal Constitution, which may bar courts from novel remedies such as declarations about statutes’ compatibility with human rights.
- Cross-border matters: A lot of Australian litigation straddles state and territory borders. Victorians who seek protection from interstate or international breaches of their rights face a number of obstacles: they must argue that the Charter applies extra-territorially, that local agencies were involved in the breaches and that outside laws did not make those breaches reasonable. Litigants outside Victoria will be able to point to breaches of the Charter that occurred within Victoria, but any remedies will have to come from their trial court’s legal system.
- Lengthy matters: Litigation also takes time, sometimes a lot of time, leaving trials and some of the events that prompted them on opposite sides of the Charter’s commencement date. Victorians will need to argue that any pre-commencement infringements of their rights are either ongoing or implicate their trial rights. Some Victorians will be much worse off, as the Charter doesn’t apply at all to ‘proceedings commenced’ – held to include the laying of charges – before 1st January 2007; this leaves Victorians suing, sued or charged before 2006 without protection for any breaches of their rights, including post-commencement breaches, even at trials years or decades down the track.
- Corporations can be sued or even prosecuted; however, the Charter only protects the rights of human beings. The (arguably unjustified) result is that corporate litigants are denied the procedural rights protections afforded to human litigants. The (apparently unintended) exception is that corporations will still benefit from any new interpretations that courts give to legislation of general application (including most statutes) to avoid clashes with individuals’ rights.
Protections From Laws
The interpretation mandate
Laws may provide for rules or declarations that are contrary to the rights mandate. As already explained, such laws remain valid in Victoria. However, most laws are in writing and there may be a number of ways to read them. The Charter targets the process of reading laws as a limited means of enforcing the rights mandate, by requiring that people who read laws do so in a particular way: ‘all statutory provisions must be interpreted in a way that is compatible with human rights.’
This interpretation mandate extends to all statutes of the Victorian parliament. It also covers other local legislative documents that might detract from rights (including regulations, court rules, local government laws and proclamations.) However, the rule doesn’t apply to legislation or instruments from other parliaments or the judgments or reasons of courts and tribunals, all of which may nevertheless be (or be evidence of) legal rules that affect Victorians. The rule also doesn’t apply to statutory provisions (and instruments made under them) that are the subject of an override declaration.
The interpretation mandate applies both to laws passed after the Charter was enacted and to earlier laws Those earlier laws may have their meaning altered, even if it was previously thought to be clear or authoritatively settled. Legislation read anew in this way may cease to intrude on rights or may even provide expanded protection for them. However, the actual effect of the mandate is limited by its terms, as well as a specific rider that it only requires new interpretations of statutory provisions ‘[s]o far as it is possible to do so consistently with their purpose’. The result is that the protection the mandate offers from other laws depends on the characteristics of those laws:
First, the mandate provides no protection from reasonable limits on rights. A reading of legislation that satisfies the Charter’s general limitation provision is a reading that is ‘compatible with human rights’. Many readings of laws that infringes rights may be reasonable ones, or may be capable of further interpretative fine-tuning by the courts to make them reasonable. The Charter requires no more protection than that. However, courts may still choose a reading that doesn’t infringe those rights at all (or infringes them less than the general limitation permits) in accordance with other rules of statutory interpretation, such as giving words a natural or (in the case of penal provisions) a narrow meaning.
Secondly, any new reading must be consistent with the legislation’s purpose. Courts have long been obliged to avoid readings of statutes that frustrate parliamentary goals and the new interpretative mandate is carefully worded to retain that requirement. This might greatly limit the rule’s protection for rights, because those rights will often get in the way of particular legislative desires. Much will turn on how nuanced parliament’s goals are. If parliament’s goal is to pursue its desired outcomes only to the extent that human rights (or reasonable limits on them) permit, then interpretations that protect those rights (even if they greatly hamper those goals) will still be required.
Thirdly, any new reading must fit the legislation’s words. The Charter only requires that legislation be ‘interpreted’ in a rights-compatible manner. This contrasts with the United Kingdom’s human rights law, where the same mandate extends to how the courts ‘read and give effect to‘ statutes. UK courts have controversially felt enabled – indeed required – to ignore a statute’s words and respect only a legislative scheme’s ‘fundamental features.’ Victorian courts (and others) applying the interpretation mandate must instead confine themselves to choosing between different readings of the actual words of statutes or documents, restricting themselves to meanings that those words can bear. Adding, removing or changing the words of legislation and instruments remains the job of parliament and its delegates.
The Victorian parliament, which makes the laws that others must read and implement in accordance with the interpretation mandate, has firmly retained the power to pass whatever laws they want. However, parliament does more than just pass laws. It also debates them; what parliamentarians say can be disseminated by the media, influence how courts apply statutes and, even (to take an idealistic view) sway other parliamentarians on whether or not to vote for a bill.
The Charter injects human rights into parliamentary debate, by requiring the identification of any proposed laws that infringe human rights. The new procedure is that all new Victorian bills must be accompanied by a statement of compatibility, made by the member who introduces the bill.
In keeping with the Charter’s core principle of parliamentary sovereignty, a statement may conclude that a bill is incompatible with human rights. In that case, the statement must spell out the extent of that incompatibility, i.e. which provisions infringe which rights and how. Uniquely in Victoria, positive verdicts about a bill must also be explained. Also, the Charter provides that the parliamentary Scrutiny of Acts and Regulations Committee – which has a degree of independence from the government – must also report to the legislature on whether or not any bill is incompatible with human rights. At the end of the day, parliament can still pass such any bill. All its statutes remain valid, regardless of whether the required process occurred or not.
The new statement of compatibility process won’t affect the myriad other ways that laws are made that can detract from criminal process rights. The Charter includes a requirement that new statutory rules be accompanied by a ‘human rights certificate’ but court rules are exempted, although there are also pre-existing schemes for parliamentary and committee scrutiny of them, including their impact on rights. New laws that aren’t sourced from the Victorian parliament but may still operate in Victoria, including bills before the Commonwealth parliament and announcements of new common law rules by the High Court, aren’t scrutinised at all.
The special parliamentary processes introduced by the Charter shares the impotence of all parliamentary processes when it comes to preventing the adoption of bad laws. However, those processes may have other effects. In theory, the requirement of a compatibility statement and the potential for scrutiny by a committee may have an impact on the development of bills that come before parliament, ameliorating if not removing their negative impact on rights. More practically, these documents may be relied on when those bills are enacted by the people who must read and apply them as evidence of parliament’s intentions. In particular, parliament’s opinion that a bill is compatible with human rights may be cause for courts to infer that the bill’s purpose was to pursue its goals only to the extent that human rights permit.
The Charter gives Victoria’s parliament a further role: it may override the Charter with respect to a statutory provision, lifting the interpretation mandate (and any other legal effect of the Charter) from that provision and any instruments made under it. Overrides must be renewed ever five years and be accompanied by a statement setting out the ‘exceptional circumstances’ that prompted them. One such circumstance would be the need to ensure that Victoria’s laws aren’t re-read in a way that creates conflicts with laws enacted in other jurisdictions, whose laws are not subject to the same mandate.
- The new parliamentary dialogue
- An outcome for the new parliamentary dialogue
- The Charter’s first report card
- Is the parliamentary dialogue working?
- Revisions to statements of compatibility
Neither courts nor parliaments are particularly suited to turning bad laws into good ones, a process that demands reflection and inquiry, as well as the capacity and authority to devise new regulatory solutions. The executive and its agencies have these qualities but they may lack both the political will to develop better laws and the political capital to see them adopted.
To remedy this problem, the Victorian parliament has given the Supreme Court a novel power to place the reform of some laws on the political agenda: ‘[I]f in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect…’. While the sole legal effect of such a declaration is to require a ‘written response’ from the responsible Minister within six months, this procedure has loftier ambitions.
In rejecting the American approach of giving courts the final say on human rights issues, proponents of the Charter argued that good laws can and should emerge from a transparent dialogue between different arms of government. A declaration allows the Victorian Supreme Court to start that dialogue.
The next stages are up to the executive and parliament, presumably informed by public input. The process may lead to a new statute – which might attract a further declaration – or no change at all. Similar declarations overseas have nearly always lead to new or amended laws, prompting opponents of human rights laws to suggest that there is no dialogue, but rather a monologue from unelected judges to elected politicians; however, that assessment neglects the content of the new laws and the subsequent responses of the courts.
In Australia, there is cause to fear that declarations will play too little role in the development of new laws. Declarations can only be made in trials where another Charter provision is raised, precluding declarations about bad laws that aren’t raised in court or litigants see no benefit in questioning (e.g. because there is no prospect of re-interpretation that could assist a litigant in the trial at hand.) Courts may hesitate to find that a law is incompatible with some s rights (such as the right to a fair hearing, which some Australian courts have treated as synonymous with a trial ‘according to law’) or may decline to make a declaration on discretionary grounds (such as the irrelevance of any incompatibility to the matter at hand.) Also, declarations may simply be too weak to overcome the inertia, indifference and irreconcilable viewpoints that characterise many law reform debates in Victoria.
Thee potentially short-lived nature of any dialogue is emphasised by the Charter’s name for the declarations – declarations of ‘inconsistent interpretation’ – which is presumably intended to signal that a judicial declaration can be readily dismissed as a mere difference of opinion. The Victorian parliament may also signal the end of any conversation about a particular statutory provision by using its override power, a symbolic act in this context given that it has the last say regardless.
Finally, there is no power for the Supreme Court to make a declaration about the common law. Australia’s common law is a national body of law that is now exclusively made by the High Court of Australia, which has held that it will not change a rule merely to match an example set by local laws such as the Charter. Common law precedents, including High Court judgments, are not subject to re-reading under the interpretation mandate. Indeed, the High Court has held that the passage of statutory rights legislation is a reason for it to refrain from developing the common law in a way that better advances those rights.So, the only way to change a common law rule that is incompatible with human rights is if parliament passes a statute that abrogates or changes it. Despite the similarity between this law reform process and the process for fixing bad statutes, the only new procedure for starting a dialogue about the common law and human rights is the possibility of a review by the Victorian Equal Opportunity and Human Rights Commission, which can report on how any law affects human rights.
- Declarations: Anti-matter or just dark matter?
- A High Court declaration of inconsistent interpretation?
Protections from people
The conduct mandate
Laws don’t invade people’s privacy, or seize their property, or deprive them of their liberty, or give them unfair hearings, or punish them retroactively. Rather, actual infringements of rights can only be done by people, often groups of people working together. Often such acts are done pursuant to laws, but typically the people who do them are the ones who decide whether or not to act in a way that infringes someone’s rights.
Many Victorians who are in a position to infringe someone’s s rights are now subject to a new rule that may stop them from doing so: ‘[I]t is unlawful for a public authority to act in a way that is incompatible with a human right…’
This short conduct mandate is startling in its scope. It subjects conduct (including failures and proposals to act) to a test of compliance with the entire rights mandate. It applies to everyone (‘public authorities‘) who is either a part of the Victorian government or who work for it doing the sorts of things that those governments usually do (‘public functions’.) Victoria’s Equal Opportunity and Human Rights Commission has a new function of educating or advising public authorities on whether or not its conduct is compatible with the rights mandate.
However, like much of the Charter, the new rule’s likely effect is more modest. Most of the people who exercise functions, do so pursuant to statutes or, in some cases, the common law. Whenever there is a conflict between the conduct mandate and any other law, the other law always wins. As the Charter puts it, the rule ‘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’. This defence gives primacy to all other laws, including laws made by other parliaments or courts, at the expense of the Charter. Needless to say, the statute also exempts parliament from the conduct mandate, except when it is doing things unconnected with legislating (like running a cafe on parliamentary premises.)
Like the interpretation mandate, the practical impact of the conduct mandate largely depends on the characteristics of other laws. One category – mandatory rules – is straightforward: public authorities (and everyone else) must do whatever other laws require them to, regardless of the conduct mandate. A second, broader category is more difficult: it involves laws that do not require public authorities to act in a particular way, but permit them to do so. Such discretionary rules are, of course, very common in the justice system. The conduct mandate, if applicable, would require public authorities exercising such a discretion to confine their options to actions that are compatible with everyone’s rights; however, such forbearance may limit the operation of the other law that gave them a broader discretion to act. Unless the relevant legislation’s purpose would not be hampered if the public authority restricted itself to a narrower range of options, the full conduct mandate couldn’t apply. The Charter provide for a weaker, secondary conduct mandate – that decision-makers ‘give proper consideration to a relevant human right’ – that would be applicable in this circumstance.
The conduct mandate will, paradoxically, be most restrictive when public authorities are not operating under any law, i.e. when they do ordinary acts that anyone can do. Much of the administration of government consists of such acts, ranging staff of institutions deciding who has access to buildings, services or information to the police wandering the streets, asking people questions and peering into windows. The result is that public authorities may be more restricted in their behaviour than private players in the justice system, such as law firms. However, this imbalance may be restored if either a private authority is exercising a public function or the public authority’s acts are ‘of a private nature’.
The courts’ role
Victorian justice is a series of decisions by many different people, but courts stand out as by far the most powerful. While they don’t make the early choices – to investigate, to arrest, to prosecute, to sue – courts have the power to reverse many of those decisions. After they become involved, courts call most of the shots on how a matter proceeds, including the two most far-reaching decisions: the verdict and the consequences of theverdict.
The Charter exempts ‘a court or tribunal except when it is acting in an administrative capacity’ from the conduct mandates.This judicial exemption – supposedly demanded by constitutional concerns and the potential for human rights to invade purely private interactions – is arguably the biggest gap in the statute’s protection of human rights. It allows courts and tribunals to make judicial decisions in ways that infringe people’s human rights rights, even when no other law forces their hand. This includes the many procedura rights in the Charter that involve decisions or orders that are largely or exclusively the domain of courts.
Courtrooms are not a rights (mandate) free zone. Some court decisions are made in an ‘administrative capacity’, making them directly subject to the conduct mandate; examples include the issuing of search warrants and, arguably, bail and committals. Moreover, some judicial decisions require a prior action by a public authority (e.g. where one of the parties is a public authority), which in turn may be restricted by the conduct mandate. Finally, many court decisions are governed by statutes, which in turn may be shaped by the interpretation mandate. The result is that the Charter will affect court behaviour in a patchwork manner, depending on the function the court is performing, the involvement of other public authorities and the legal basis for the court’s actions. Perhaps most unfortunately, resolving each of these boundary issues (in addition to the requirements of the various mandates) will be technically fraught.
Courts play a further function in relation to the conduct mandate. The statute deems a breach of the conduct mandate to be ‘unlawful’, a characterisation that attracts legal consequences under the ordinary law. For example, courts have the power to declare that a particular act was unlawful, issue an injunction preventing an unlawful act from happening or order relief or remedies for the unlawful behaviour. Because courts are exempt from the conduct mandate themselves (in their judicial functions), they aren’t obliged to remedy all breaches of Charter rights or even to avoid such breaches when issuing remedies. Rather, they are only bound to obey any other law that governs the availability of such remedies (although, for statutory remedies, that availability may be widened under the interpretation mandate.) In many cases, the remedies for unlawfulness are subject to narrow preconditions or are only available at a judge’s discretion.
The Charter provides that a person may seek a ‘relief or remedy’ for a breach of the conduct mandate if, under ordinary law, the ‘person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful.’ This provision appears to restrict Victorian courts to the limited remedies that the ordinary law provides for unlawfulness and to exclude remedies that are for wrongs other than unlawfulness, such as hardship (e.g. bail), oppression (e.g. most stays of proceedings), unfairness or prejudice (e.g. most exclusionary rules of evidence.) Courts are not permitted to award money as a remedy or relief for a breach of the conduct mandate.
- Shades of Gray
- Roos on Charter remedies
- The messy origins of Charter s. 39(1)
- The messy effect of Charter s. 39(1)
- The gap in Charter trial remedies
- The responsibilities of trial judges
- The responsibilities of appeal judges
There are other ways to promote human rights than through rules of conduct and court proceedings. Proponents of human rights laws, including the Charter, have described the ‘primary purpose’ of such laws as ‘the development of a human rights-respecting culture’. The word ‘culture’ refers to group, rather than personal or legal, characteristics; its application to criminal justice would involve changes to the institutional culture of the various bodies that administer criminal justice.
Drawing on an analogy with the successful use of occupational health and safety laws to promote a ‘safety culture’ in some industries, McKinnon defines a human rights culture (in the executive branch of government) as ‘A pattern of assumptions shared by government officers, and taught to new officers, that human rights must be considered and respected in carrying out all government functions and in developing new law and policy.’ She suggests that such a culture may develop in three levels: awareness of rights (and relevant laws), perception of these rights as relevant and these laws as necessitating compliance; and commitment to rights. As can be seen, the final stage of a human rights culture is non-legal; in theory, the repeal of the Charter should not affect the continuance of an established culture; however, McKinnon’s research also indicates that the first two stages are most effective amongst public servants whose work directly involves compliance with human rights laws, such as preparation of statements of compatibility.
The Charter may influence a human rights culture in a number of particular respects. First, by requiring administrators already familiar with those rights to recognise their connection with overseas and international norms (including the conditions for limiting those rights reflected in the general limitation provisions.) Secondly, by bringing legal and administrative regulation connected to human rights to sectors that have traditionally been insulated from such scrutiny. The Charter contains mechanisms for the Victorian Equal Opportunity and Human Rights Commission and the Ombudsman to audit or inquire into compliance in bodies that are not typically exposed to legal proceedings; by contrast, as already noted, it exempts many court decisions from some of its requirements. Thirdly, by making the community aware of the government’s commitment to rights. In regards to this third category, the impact on a human rights culture may be negative, if the public perceives the new laws as affording unwarranted beneficial treatment to unpopular people, such as criminal suspects, defendants and offenders.