(Edited version of speech opening Human Rights Week panel discussion at Telstra Theatre, Exhibition Street, Melbourne)
I’m pleased to say a few words in introducing today’s panel discussion on human rights.
As most here today will know, this discussion, and several other Department of Justice events as part of Human Rights Week, were set up under the previous government, and reflect the previous government’s priorities in relation to human rights and to rights generally.
When the department told me last week at my first briefing as Victoria’s new Attorney-General about the events they had organised for Human Rights Week, they asked me “Minister, do you want us to cancel these events?”.
Contrary what you may have read in The Age this morning, my emphatic response was “No” – let the events that had been organised go ahead as planned: the cooking demonstration, the mini-film festivals, the crossword competition, the lot. There were two reasons for that response.
Firstly, Victoria’s new government is not a government that is about silencing discussion and debate. As Attorney-General, I welcome constructive and positive dialogue about what is the best way forward on issues relating to justice.
The last time I was in this auditorium was in the run-up to the election, at a forum organised by the Castan Centre. The three main parties were invited to attend and present their views. It might have been thought that, given the views I have expressed on the Charter Act, I would be putting my head in the lion’s mouth, but nonetheless, I thought it important and appropriate to take part. When the night came, Brian Walters SC and I came along and presented our parties’ respective views, but my predecessor was absent.
As Attorney-General, I am happy to engage with those who approach issues with goodwill and sincerity, whether or not I agree with their conclusions. The era of the tirade of abuse, the era of turning others into straw men to be dishonestly attacked for views they have never held, the era of trying to boost oneself by denigrating others, is over.
The second reason I wanted the department’s sponsored events to go ahead is this, that the commitment of the new government to just and fair outcomes for Victorians is no less strong than that of our predecessors. Indeed, while we may not proclaim our own virtues as loudly as our predecessors, we believe our reforms to the justice system will make a far greater real and positive difference to the lives of ordinary Victorians.
As many of you will know, one of my strongest criticisms while in opposition of the approach to justice of the previous government was that their approach was out of touch with reality, and that for all of the grand talk, justice on the ground for ordinary Victorians, and for many suffering serious disadvantage, was going backwards.
For example, how is it just that Victoria now has the longest criminal law waiting lists in Australia for Supreme Court appeals, for County Court trials, in the Children’s Court and in the Magistrates’ Court?
How is it just that those with mental illness or other serious and genuine personal problems can clock up thousands of dollars of automatically generated fines without some human intervention that finds out what is going on and sorts out a way forward?
How is it just that a young Chinese university lecturer, starting a new and happy life in Australia with his wife and young daughter, can be set upon by a gang of thugs while walking home from work, upended, flung head first into the ground, kicked in the head while lying already gravely injured, and left to die, all for the sake of stealing a mobile phone – and when one of the ringleaders of the gang was walking free in the community at that time on both a community based order and a good behaviour undertaking because of previous offences involving violence and theft?
The incoming government’s initiatives in the field of justice will be directed towards restoring Victoria’s legal system to make Victorians safer, improve access, reduce costs and waiting times, uphold rights and support the independent, impartial and efficient operation of our courts and tribunals.
Reform to sentencing is a high priority for enhancing the rights and liberties of Victorians. The new government is committed to effective sentencing that will prevent and deter crime, especially violent crime, and reduce recidivism.
Our reforms include not only reforms to custodial sentences, such as baseline non-parole periods, but also reforms to community based sentences and fines. If first time and younger offenders experience sanctions with real teeth, such as being banned from licensed premises, or having to perform properly enforced restitution obligations, then they are less likely to re-offend in future.
Where offenders have genuine drug or alcohol problems, mental illness or other difficulties, we support court-related programs that seek to assist offenders to re-establish their lives on a stable basis, develop responsibility for their conduct and avoid re-offending.
Justice delayed is justice denied. Our commitments include delivering the additional court staffing needed to help reduce criminal appeal delays, and transferring or seconding staff from 121 Exhibition Street to the OPP and Victoria Legal Aid to help achieve more timely justice.
Reducing waiting lists also requires not bungling crucial court IT projects such as the Criminal Justice Enhancement Program and Integrated Courts Management System, and adopting a measured and modular approach to the deployment of new IT.
We will also introduce a range of other reforms, including
- amending double jeopardy laws to allow the Court of Appeal to grant re-trials where there is new and compelling evidence
- legislating to allow criminal bikie and other gangs to be declared illegal where the Supreme Court is satisfied of serious criminal activity
- reforming bail laws
- greater protection for child abuse victims
- enhanced civil compensation rights for victims
- creating a new Courts Executive Service to boost court efficiency and safeguard judicial independence.
- introducing a judicial appointments advisory panel and a judicial complaints commission
- scrapping the previous government’s regime for appointing acting judges
- introducing part time judges, to allow a wider range of able people to add to the strength of the judiciary without having to give up their work-life balance.
Under the new government’s reform agenda, I believe the times ahead will offer satisfying and fulfilling opportunities for those working in the public sector who seek to contribute to achieving a more just and fair Victoria.
Let me now say a few words specifically about rights, justice and the Charter of Human Rights and Responsibility Act.
As someone who trained in the law and practised as a lawyer, I am very proud of the role that lawyers can play in society, and proud of what the law has done and continues to do to uphold rights and to protect liberties over the ages.
Indeed one should not get involved in the law unless one is passionate about preventing and remedying injustice. I admire the sincerity and dedication of those many lawyers, particularly young lawyers, who are keen to play a role in areas such as pro bono work, or working for community legal centres or human rights centres, or working for just and fair outcomes within the public sector. All good lawyers want to uphold rights and uphold justice.
However, any notion that a legally-driven Charter Act is the be-all and end-all of justice and fairness for Victorians is sadly mistaken.
The Charter Act is not a set of Ten Commandments handed down on tablets of stone from on high. My predecessor took the International Covenant on Civil and Political Rights – which itself was the outcome of negotiation and compromise – deleted those items from the Covenant that he didn’t like, and inserted a few extra items of his own.
As I have made clear in the past, the Charter Act is riddled with flaws and anomalies, as even many of its supporters acknowledge.
The Court of Appeal judgement in R V Momcilovic  VSCA 50, currently subject to appeal to the High Court, strongly criticised my predecessor for urging the court to adopt an interpretation of the charter legislation directly contrary to assurances as to its interpretation which he gave to Parliament at the time the legislation was enacted.
In Parliament, the previous government adopted an Animal Farm approach to the interpretation of the Act, often arguing that the “human rights” set out in the Act were not being violated because it was “justified” in a “free and democratic society” to abrogate them, as permitted by section 7. Just as in Animal Farm “all animals are equal, but some animals are more equal than others”, so everybody would have the human rights set out in the Charter Act, but some of those rights would be more rights than others.
Many of the “human rights” included in the legislation are specified in poorly defined and open-ended terms which are often inconsistent with the International Covenant on Civil and Political Rights.
For example, the Charter Act expressly asserts a right to abrogate rights which the Covenant says may never be abrogated. It gives the right to abrogate
- the right to life,
- the right to freedom from torture
- the right to freedom from slavery and servitude
- the right not to be imprisoned for a contractual breach
- the right against retrospective conviction, and
- the right of recognition before the law as a person.
Under the Covenant none of those rights can be abrogated in any circumstance, not even in a state of emergency. However, under the Charter Act, those rights can be abrogated if it is “justified” in a “free and democratic society” to do so.
Let me also cite just a few of many other departures of the Charter Act from the International Covenant, which may or may not be justified departures, but which again show that one cannot hold up the Charter Act as if it were the be-all and end-all of what amounts to human rights.
The obligation of a penitentiary system to aim for the reformation and social rehabilitation of prisoners, contained in Article 10.3 of the Covenant, is not set out in the Charter Act.
The Charter Act also fails to provide for respect for the liberty of parents and legal guardians to ensure the religious and moral education of their children in accordance with their own convictions, as contained in Article 18.4 of the Covenant.
Furthermore, the Charter Act allows for far greater restrictions on media access to trials than is permitted by the Covenant, and it allows any law to prohibit the publication of court judgements, whereas Article 14 of the Covenant means that except in specified circumstances, court judgements are to be made public.
The new government supports and welcomes scrutiny of proposed laws against international benchmarks. However, we consider issues regarding compliance or non-compliance are matters to be decided through democratic processes, not as matters of judicial policy making.
We also strongly support the availability of effective remedies against denials of individuals’ rights and entitlements by government entities.
However, rather than relying primarily on a Charter Act specified in broad and vague terms, to best avoid and remedy such injustices requires clear statements of the public services and standards to which individuals are entitled, with honest and thorough benchmarking and reporting of service delivery performance, and proper channels of internal redress, backed up by an independent and diligent Ombudsman and accessible administrative law remedies.
To try to use a Charter Act based on civil and political rights to achieve the introduction of economic and social rights is like trying to use a spanner to drive home a nail – it might work from time to time, but it is not the best tool for job.
Ensuring clear accountabilities and remedies for the delivery of public services is something I will be pursuing not only in my capacity as Attorney-General, but also as Minister for Finance, a portfolio which has responsibility for the setting, measuring and reporting of standards of service delivery and performance.
For those of you here today involved in planning and delivering services to Victorians, I ask you to make the consideration of service standards and redress mechanisms an integral part of the work you do. What are the standards that those who use your service are entitled to expect, and what are the timely, accessible and effective mechanisms of redress that are or will be available to users to flag a problem and have it fixed?
In terms of the future of the Charter Act, as I have made clear in the past and as you will have gathered from my remarks today, in my view this legislation cannot continue in its present form. At present, my top priority as incoming Attorney-General is to deliver on the commitments we have made to Victorians during the election campaign. Even in just the six days since the new government was sworn in last week, some good progress has been made in getting things underway, but it is still early days and there is a lot to be done.
Once these commitments to the Victorian electorate are in hand, and the various time-bombs left to me by my predecessor have been defused, my next priority will be to give attention to other issues, including the future of the charter legislation.
In the meantime, for those of you who are working within the public sector to achieve more just and fair outcomes for Victorians – continue with that quest. Just and fair outcomes are a core element of what the Baillieu government is about.
However, be prepared to think beyond the Charter Act in how you go about developing and implementing policies, procedures and practices that will achieve just and fair outcomes, and constantly be asking yourself and others – how will our work make a real and practical difference for the better in the lives of the Victorians whom we serve?