Other Reforms) Bill 2012, despite raising
additional Charter issues with the Minister. Many
government departments report that, when
drafting statements, they draw on the expertise of
the Department of Justice Human Rights Unit or
the Victorian Government Solicitor's Office when
appropriate, in addition to their department's
legal team. In 2012, departments also reported
that they have consulted with the Office of Chief
Parliamentary Counsel.
statements of compatibility are less
comprehensive than SARC or bodies with an
interest in the issue might consider sufficient.
of compatibility to be more concise. Government
departments report that they draft statements of
compatibility that are "simple and accessible"
and that drafting practices have been improved
by reducing the length and complexity of
statements while still maintaining the quality
and accuracy of analysis, in line with SARC's
recommendations. Several agencies noted that
they now consciously avoid discussion of where
rights are "engaged" if the link is tenuous or
hypothetical. Instead, they only report on rights
that are limited. Corrections Victoria notes that it
avoids irrelevant technical analysis in statements,
and no longer discusses "routine" or "clearly
reasonable" human rights limitations.
engaged that have their own internal limitations,
statements of compatibility are increasingly
concluding that the right is "raised" but not
limited. For example, section 13 of the Charter
says that privacy must not be "unlawfully or
arbitrarily interfered with". A number of Bills
in 2012 impinged on privacy but in a way that
was lawful and not arbitrary.
right is not limited, rather than being reasonably
the Evidence Amendment (Journalist Privilege) Bill
2012 and the Crimes Amendment (Gross Violence
Offences) Bill 2012. This is also true for other rights
such as freedom of expression (section 15): see
Evidence Amendment (Journalist Privilege) Bill 2012
and Classification (Publications, Films and
Computer Games)(Enforcement) Amendment Bill
2012, property rights: see Fire Services Property
Levy Bill 2012) and right to liberty and security of
person (section 21).
reading the statements when they discuss a
number of limitations on the right but conclude
that it is not limited. The Commission's preferred
view is that an internal limitation on a right is
treated in the same way as the general limitation
clause in section 7(2) of the Charter; namely,
that it is seen as a permissible limitation on a
right rather than defining the scope of the right
itself.
view that internal limitations do define the scope
of a right. It further advised that unless the
application of an internal restriction is very clear,
an analysis is normally still undertaken of why the
restriction falls within the limitation.
is considered in statements of compatibility.
These statements increasingly prefer Victorian
human rights cases over international law, as
the local jurisprudence develops. However,
reference to international jurisprudence or United
Nations treaties should continue to be used as
appropriate. For example, the Member for Altona
noted during parliamentary debate that the
Working with Children Amendment Bill 2012 was
in part informed by the Convention on the Rights
of the Child, in giving proper consideration to
the rights of children as deserving of protection.
It is nevertheless concerning that the statement
of compatibility concluded that the right to a fair
hearing was not engaged because the terms
of section 24 of the Charter in this respect are
"quite different" to article 6 of the European
Convention on Human Rights, which make
overseas decisions on that article inapplicable in
this context. However, article 6 is in substantially
similar terms to sections 24 and 25 of the Charter
and can provide a useful reference point in
interpretation.
relevant to interpreting the scope of the Charter.
This is particularly so as Victorian human rights
jurisprudence is still limited and confined to the
specific circumstances of the cases. Use of
relevant international law is also consistent with
the approach now being taken by the federal
Parliament in scrutinising legislation against the
core international human rights treaties ratified
by Australia.
website <http://humanrightscommission.vic.gov.au/
index.php/about-us/item/560-wk-charter-
intervention-jul-2010>.