Balancing Rights in a Democracy: The Problems with Limitations and Overrides of Rights under the Victorian Charter of Human Rights and Responsibilities Act 2006
Debeljak, Julie, Melbourne University Law Review
[Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter), the Victorian Parliament protects a range of civil and political rights. The rights are subject to restricting provisions, including a general limitation clause which allows all rights to be subject to such reasonable limits as can be demonstrably justified in a free and democratic society, and on override provision which allows the suspension of the operation of specified Victorian Charter rights in relation to overriding legislation for a renewable period of five years. This article will explore the theoretical underpinnings of the rights-restricting mechanisms before critiquing the mechanisms adopted under the Victorian Charter against comparable international, regional and domestic human rights instruments, and against the underlying objectives of the Victorian Charter--the preservation of parliamentary sovereignty and the creation of an institutional dialogue about rights. This analysis will demonstrate that the rights-restricting mechanisms under the Victorian Charter are flawed devices because they go beyond the restrictions ordinarily accepted under international, regional and domestic human rights law; reach beyond what is needed to establish an institutional dialogue; and tend to unnecessarily promote parliamentary sovereignty at the expense of human rights accountability, justification and scrutiny.]
CONTENTS I Introduction II Balancing Rights in a Democracy through the Use of Restrictions A Methods of Restricting Rights B The Restrictions under the Victorian Charter C Institutional Justifications for Restrictions: Parliamentary Sovereignty and Dialogue 1 Motivation to Preserve Parliamentary Sovereignty 2 Institutional Dialogue III The Victorian Charter and Limitations on Rights A Relevance of International Human Rights Obligations B Problems with the General Limitations Power IV The Victorian Charter and Overriding Rights A Non-Derogable Rights under International, Regional and Comparative Domestic Human Rights Law B Conditioning the Use of Derogations/Overrides under International, Regional and Comparative Domestic Human Rights Law 1 The Circumstances Justifying a Derogation 2 Regulation of the Effects of a Derogation C Underlying Objectives of the Victorian Charter and the Override 1 Preservation of Parliamentary Sovereignty 2 Establishing an Institutional Dialogue D Conclusion V Comparative Domestic Human Rights Instruments and Overrides/Derogation A Derogation under the South African Bill of Rights B Derogation under the UK Human Rights Act C Overrides under the Canadian Charter D Conclusion VI Conclusion
Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter'), the Victorian Parliament protects and promotes a range of civil and political rights, (1) based largely on the rights guaranteed under the International Covenant on Civil and Political Rights ('ICCPR'). (2) Those rights, however, may be subject to restriction. Under the general limitation power in s 7(2), all rights may be subject 'to such reasonable limits as can be demonstrably justified in a free and democratic society'. Some individual rights may also be subject to internal qualifications or limitations specific to those particular rights. Moreover, all rights may be subject to the s 31 override provision, which allows the suspension of the operation of specified rights--or the entire Victorian Charter--in relation to an overriding law for a renewable period of five years.
Allowing rights to be restricted is neither new nor wrong. It is widely acknowledged that not all rights are absolute, that they need to be balanced against other protected rights and that they may conflict with other non-protected values. …