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The growing importance of international human rights in Victorian law

Feature Articles

Cite as: (2006) 80(12) LIJ, p. 64

Positive judicial commentary, a newly legislated charter of rights and the establishment of a legal resource centre all point to the burgeoning significance of human rights in Victorian legal practice.

By Peter Henley

Positive judicial commentary, a newly legislated charter of rights and the establishment of a legal resource centre all point to the burgeoning significance of human rights in Victorian legal practice.
By Peter Henley

It is becoming increasingly important for Victorian lawyers to have a good working knowledge of international human rights law. In April 2006, the Victorian Court of Appeal handed down judgment in Royal Women’s Hospital v Medical Practitioners Board of Victoria.[1] Dicta in the judgment of Maxwell P reminds practitioners of the relevance of human rights law to both the resolution of disputes before courts and the development of Australian jurisprudence. In his Honour’s words (at [72]): “That there is a proper place for human rights-based arguments in Australian law cannot be doubted”.

The extraordinary level of public participation in the consultation process regarding the proposal for a legislative Charter of Human Rights and Responsibilities for Victoria shows that the Victorian public overwhelmingly supports stronger protection of human rights under Victorian law.[2] Following this response, the Victorian government has followed the Australian Capital Territory[3] and passed the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).[4]

This article discusses these two recent events, and considers how they may affect the work of practitioners and influence the development of Victorian human rights related jurisprudence. It also notes the recent creation of the PILCH Human Rights Law Resource Centre, and the potential it may have for promoting international human rights law in Victoria.

Royal Women’s Hospital v Medical Practitioners Board of Victoria

Royal Women’s Hospital reiterates and highlights the relevance to Victorian and Australian law of the international human rights instruments to which Australia is a party.

The Medical Practitioners Board of Victoria obtained a search warrant to seize the medical records of a patient to undertake an investigation into the professional conduct of the medical practitioners who assessed or consulted with the patient. The Hospital appealed the decision to grant the warrant on the grounds that the patient’s records were covered by a “public interest immunity”. Successive appeals were heard before the Magistrates’ Court, the Trial Division of the Supreme Court and, finally, before Warren CJ, Maxwell P and Charles JA in the Court of Appeal. The Hospital was unsuccessful in each appeal.

The sole ground of appeal before the Court of Appeal was that the Trial Division judge “erred in determining that the patient’s medical records were not protected by a public interest immunity”.[5] Though differing slightly in their formulations of the relevant test, their Honours agreed that in assessing a public interest immunity the Court must consider whether:

  • the document or class of documents in question are governmental in character; and
  • if so, that no other public interest – including the administration of justice – should prevail to require those documents to be disclosed.

Their Honours all further agreed that the Hospital had failed to satisfy the first limb of this test, and was consequently not entitled to assert a public interest immunity over the patient’s medical records.

Part of the Hospital’s submissions drew on three specific obligations under human rights treaties to which Australia is a party: article 17 of the International Covenant on Civil and Political Rights (ICCPR), article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The Hospital submitted that relevant Victorian statutes should be interpreted and applied, “so far as their language permits, so as to be in conformity with Australia’s obligations under international conventions”.[6] Its key ground of appeal in this regard was that “the trial judge failed to have any regard whatsoever to the content of the relevant international conventions to which Australia is a party”.[7]

Warren CJ’s judgment did not consider these submissions. Charles JA noted the submissions, but found (at [136]) that the Board’s seizure of the medical records could not be said to be “arbitrary or unlawful” within the meaning of article 17 of the ICCPR, and (at [140]) that neither article 12 of ICESCR nor article 12 of the CEDAW provided any assistance in the interpretation of Victorian legislation relating to medical records, and the Board’s conduct in accordance with that legislation could not be said to be discriminatory in a manner prohibited by those conventions.

President Maxwell also stated (at [69]) that it was “unnecessary to consider what guidance ought to have been derived from the international human rights conventions” in deciding whether the patient’s medical records should have been disclosed.

However, the President noted in dicta (at [71]) that the Court will encourage practitioners to develop human rights-based arguments where relevant to a question in the proceeding, and that practitioners should be alert to the availability of such arguments and should advance them where relevant. Since the development of an Australian jurisprudence drawing on international human rights law is in its early stages, further progress will involve judges and practitioners working together to develop a common expertise.

His Honour also noted (at [72]) that Australian courts have appropriately considered the use of international human rights in:

  • exercising a sentencing discretion;
  • considering whether special circumstances exist to justify the granting of bail;
  • considering whether a restraint of trade is reasonable; and
  • exercising a discretion to exclude confessional evidence.

Summarising, the President indicated that “there are three important ways in which [international human rights] instruments, and the associated learning, can influence the resolution of disputes under domestic law:

1. in the absence of a clear statement of intention to the contrary, statutes should be interpreted and applied, as far as language permits, so that [they conform] with Australia’s obligations under a relevant treaty;

2. the provisions of an international convention – especially one which declares fundamental rights – may be used by the courts as a legitimate guide in developing the common law; and

3. the provisions of an international human rights treaty to which Australia is party may serve as an indicator of the value placed by Australia on the rights provided for in the convention and be taken as being indicative of contemporary values”. (at [74]-[77])

Counsel for both sides were informed by the President at the conclusion of the Hospital’s application for leave to appeal to the Court of Appeal that the Court would be “assisted ... by submissions dealing with the relevance of international human rights conventions, and the associated jurisprudence, to the questions before the court” (at [70]). Maxwell P has indicated in other fora that the Court will continue to encourage counsel to present submissions based on international human rights law to the Court where those submissions may be used in one of the three ways identified above.[8]

Nothing in the comments of Maxwell P departs from the existing authority that, “unless an international convention has been incorporated into municipal law by statute ... the convention cannot operate as a direct source of individual rights and obligations under Australian municipal law”.[9]

However, the clear message from the Royal Women’s Hospital case is that practitioners should be prepared to make submissions based on international human rights instruments, particularly where a statute is ambiguous, where the common law currently provides no clear answer to a question, or where a court is required to make a policy decision based on the contemporary values of the community.

Charter of Human Rights and Responsibilities for Victoria

On 25 July 2006, the Charter received assent and passed into Victorian law. The enactment was the culmination of a two-year legislative reform project undertaken by the Victorian government to “establish a framework for the protection and promotion of human rights” in Victoria.[10] The reform project had overwhelming public support: more than 84 per cent of submissions made to the Human Rights Consultation Committee, which considered the reform proposal and conducted the public consultation process, supported increased protection for human rights under Victorian law.[11]

As a statutory charter of rights, the Charter has many similarities with human rights Acts in the United Kingdom and New Zealand, and also the Human Rights Act 2004 (ACT), but is not like a US-style Bill of Rights.

The Charter incorporates many civil and political rights, drawn from the ICCPR, into Victorian law (ss8-27) (“protected rights”), including recognition and equality before the law, the right to life, freedom of association, privacy and the right to humane treatment when deprived of liberty. It requires that any limitation in other legislation of the incorporated rights must be a “reasonable limit ... as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom”, with reference to a non-exhaustive range of interpretation factors: s7(2).

The Charter requires any member of Parliament who introduces a Bill into a House of Parliament to prepare a “statement of compatibility” of that Bill with the Charter: s28. It also requires any legislation which derogates from the incorporated rights to be accompanied by an explanation and an “override declaration”: s31.

A party to any Supreme Court or County Court proceedings which involves the application of the Charter is required to notify the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission of those proceedings, unless either is already party to it: s35. The court is allowed to make a “declaration of inconsistent interpretation” if, subject to any relevant override dec-laration, it considers that any statutory provision cannot be interpreted consistently with a protected right: s36(2).

The Victorian Equal Opportunity Commission has been renamed the Equal Opportunity and Human Rights Commission. The Commission has been given additional responsibilities, and intervener rights in proceedings involving the Charter: ss40-43.

The operation of the Charter is to be reviewed after four and eight years, with the four year review to specifically consider whether any additional human rights under other international human rights conventions (including the ICESCR, CEDAW and the Convention on the Rights of the Child) should be included as human rights under the Charter: ss44 and 45.

The Charter also expressly states that the human rights it incorporates do not limit or abrogate any other rights under Victorian or commonwealth law: s5. It does not provide any right to damages for a breach of a human right which is not otherwise available under the law (s39(3)), but provides in s39(1) that:

“If, otherwise than because of [the] Charter, a 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, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter”.

A key objective of the Charter is to ensure public authorities comply with the Charter, and to ensure that public servants “take the human rights in the Charter into account in developing new policies”.[12] A comprehensive regime exists under the Charter to regulate these requirements, both when policies and legislation are being developed, and when they are being implemented.

The Consultation Committee’s recommendation – that the Charter commence on 1 January 2007, with a one year exclusion regarding the duty of public authorities to comply with its provisions[13] – has been followed; and the provisions dealing with interpretation of laws and the declaration of inconsistent interpretation will also only commence on 1 January 2008: s2.

Once the relevant sections come into effect, lawyers working with clients whose protected rights may have been breached may, in addition to making use of international conventions as indicated by Maxwell P in the Royal Women’s Hospital case, consider seeking declarations of inconsistent interpretation where available. They may also consider seeking the assistance of the Victorian Equal Opportunity and Human Rights Commissioner, either as an intervener in proceedings or through the Commissioner’s reporting and review functions. Although the Charter will not, subject to clause 39(1), provide people with additional enforceable remedies should their human rights be breached, the direct functions of the Charter in promoting compliance, and accountability for failure to comply, with the protected rights, particularly by public authorities, is likely to be of assistance to practitioners assisting clients in diverse areas of legal practice, including privacy, sentencing and bail applications and discrimination.

The Human Rights Law Resource Centre

Another significant step towards the greater protection of human rights in Victoria is the recent establishment of the Human Rights Law Resource Centre. The objectives of the Centre are to contribute to the harmonisation of law, policy and practice in Victoria and Australia with international human rights norms and standards, and to empower people who are disadvantaged or living in poverty by operating within a human rights framework, including by:

  • treating people with fairness, dignity and respect;
  • promoting equality and freedom from discrimination;
  • promoting participation and the principle that people should have a say in processes and decisions that affect them; and
  • promoting social inclusion and community development.[14]

The Centre will seek to achieve its objectives by support-ing, conducting, coordinating, facilitating and providing resources for the provision of legal services, litigation, education, training, research, policy analysis and advocacy regarding human rights through partnerships with pro bono lawyers, academia, and community legal centres and human rights organisations.[15]

The work of the Centre is likely to result in a more coordinated and concerted effort to ensure the protection of human rights drawn from the relevant conventions to which Australia is party. Any advocacy or provision of legal advice may require lawyers to consider international human rights caselaw and jurisprudence, and for that purpose those lawyers will need to be familiar with Australia’s international human rights obligations. To that end, the Centre has already conducted a number of well-attended training sessions for lawyers interested in representing clients in Victorian, commonwealth and international fora. There is also considerable existing expertise in this area, particularly in Victorian universities and at the Bar.

It will be interesting to see whether public interest groups and non-governmental organisations, such as the Centre, will be able to make use of the Charter, and the increased receptiveness of the Victorian Supreme Court to submissions based on international human rights conventions, to promote the protection of human rights in Victoria.

PETER HENLEY is a senior associate at Mallesons Stephen Jaques, the Melbourne coordinator of Mallesons’ Human Rights Law Group, and a member of the Advisory Committee of the Human Rights Law Resource Centre.

[1] [2006] VSCA 85 (20 April 2006) (Royal Women’s Hospital).

[2] See Rights, Responsibilities and Respect: The report of the Human Rights Consultation Committee,$file/HumanRightsFinal_FULL.pdf, (Report), at pv.

[3] The Human Rights Act 2004 (ACT) came into effect on 1 July 2004.

[4] For a contemporaneous discussion of the newly adopted legislation, see George Williams, “The Charter you wanted”, Herald Sun (Melbourne), 26 July 2006, p18.

[5] Royal Women’s Hospital, note 1 above, at [14].

[6] Royal Women’s Hospital, note 1 above, at [135] per Charles JA.

[7] Royal Women’s Hospital, note 1 above, at [68] per Maxwell P.

[8] “Human Rights: A view from the bench”, address to the annual general meeting of the Administrative Law and Human Rights Section of the Law Institute of Victoria, Melbourne, 26 October 2005, available at$file/Speech%20LIV%20Human%20Rights%20President%2026Oct05.pdf.

[9] Royal Women’s Hospital, note 1 above, at [74].

[10] Explanatory Memorandum to the Charter of Human Rights and Responsibilities Bill 2006, p1.

[11] Rights, Responsibilities and Respect, note 2 above, pv.

[12] Rights, Responsibilities and Respect, note 2 above, piii.

[13]. See Recommendation 33, note 2 above, p135.

[14] Human Rights Law Resource Centre, “Objectives of the Human Rights Law Centre” (2006), Other web pages of the Centre are also accessible via the PILCH website.

[15] Human Rights Law Resource Centre, “Who we are and what we do” in Providing Legal Services and Resources to Promote Human Rights,


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