Wednesday, 1 November 2023

Charter of Human Rights and Responsibilities Amendment (Protection from Torture and Slavery) Bill 2023

Statement of compatibility

David LIMBRICK (South-Eastern Metropolitan) (10:11): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, I make this statement of compatibility with respect to the Charter of Human Rights and Responsibilities Amendment (Protection from Torture and Slavery) Bill 2023.

In my opinion, the Charter of Human Rights and Responsibilities Amendment (Protection from Torture and Slavery) Bill 2023, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter Act. I base my opinion on the reasons outlined in this statement.

This Bill will perform 3 key functions. The first is to enshrine non-derogation safeguards to the following rights within the Charter:

• S 9: Right to Life;

• S 10: Protection from torture and cruel, inhuman, or degrading treatment, and;

• S 11: Freedom from forced work.

When the Charter was created, it drew inspiration from international treaties of which Australia is a signatory. These treaties include the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights. Both instruments call for recognition of some rights to be universally recognised and not subject to any limitation. These include, but are not limited to, the rights included within this bill.

Australia has obligations to meet under these treaties and is regularly reviewed by international covenants to evaluate performance in protecting rights. By elevating these rights to a non-derogable state, Victoria moves closer to becoming a globally recognised leader in protecting human rights.

While this function itself will not directly engage any Charter rights, it may be argued that its impact could transform current situations within society into events that do engage these rights. These changes will enshrine the rights as they are legislated, which includes their exceptions. For example, correctional actions which engage exclusions such as section 3(a) of the ‘Freedom from forced work’ right would not be seen as derogations, as these exceptions are fundamentally part of the right within the Charter. I am therefore satisfied that this function does not engage any rights within the Charter.

The second key function enhances the existing requirements of members of Parliament and the Scrutiny of Acts and Regulation Committee to declare instances where non-derogable rights are engaged by bills within their statement of compatibility, human rights certificates, and SARC reports respectively.

This procedure does bring much change to the existing Charter practises of SARC and Ministers presenting bills and statutory rules. It will require the declaration of non-derogable rights engaged to be identified accordingly. As such, I am satisfied that this function will not engage any rights within the Charter.

The third function improves Parliament compliance with the charter by repealing the Parliament override provision. For human rights to be protected in an effective and meaningful way, the legislation which enshrines these rights must also have its own protections. A human right is not truly a protected right if it can be ignored at the government’s discretion. I am therefore satisfied that this function does not engage any rights within the Charter.

I consider that the Charter of Human Rights and Responsibilities Amendment (Protection from Torture and Slavery) Bill 2023 is compatible with the Charter Act because it does not raise any human rights issues.

Second reading

David LIMBRICK (South-Eastern Metropolitan) (10:11): I move:

That the bill be now read a second time.

Today I am introducing the Charter of Human Rights and Responsibilities Amendment (Protection from Torture and Slavery) Bill 2023 for consideration.

In Australia we are fortunate to live in a country where we do have a lot of protections against the kinds of human rights abuses that are routine in so many parts of the world. Political dissidents and opponents aren’t routinely tortured here. While slavery might not be completely abolished, it is rare and universally abhorred. The state doesn’t routinely execute those perceived as troublemakers. While we should appreciate and enjoy these freedoms we shouldn’t be complacent.

Complacency may lead to the slow erosion of these rights, or, at a minimum, create inertia and maintain the status quo that has been demonstrated as inadequate. Throughout the pandemic I was very critical of the government’s approach to human rights considerations. I thought they had the balance wrong. Over the last couple of years there have been several other examples of core human rights having inadequate protections in Victoria. This bill seeks to remedy that situation.

The coronial inquiry into the death of Veronica Nelson revealed the following breaches of human rights: the right to life, the right to protection from cruel and inhumane treatment, the right to equality and the right to humane treatment when deprived of liberty.

Most importantly, the coroner found that her death was preventable had these and many other breaches not been committed against her. Forcing someone to undergo opiate withdrawal without medical supervision is a form of torture and should never have happened.

This bill improves the protection from torture to ensure that what happened to Veronica will never happen again to any other Victorian.

The Victorian Ombudsman’s report into the snap lockdown of the 33 Alfred Street commission towers found the occupants suffered a breach of their protection from cruel and inhumane treatment when deprived of their liberty. The Department of Health and Human Services claimed these limitations complied with the charter. However, the deputy chief health officer is on record as admitting not enough time was given for a suitable human rights assessment, which the Supreme Court have made clear places human rights at risk of inadequate consideration.

Further, DHHS did not consider any less restrictive means. This was identified as being the result of a decision made in a crisis cabinet meeting of which the details, including human rights considerations, have still not been released to the public. The Ombudsman also recommended that the least the government could do for breaching their human rights is apologise for it. The Alfred Street residents are still waiting for their apology.

Locking people in their homes with unacceptably short notice and no access to food, medicine, sunlight, or fresh air is an act of torture. This bill will provide better protections against the repeat of those rights breaches.

Following the Royal Commission into Victoria’s Mental Health System, the Victorian government began implementing a reform agenda for state mental health services. They commissioned the Victorian Mental Illness Awareness Council to provide an advice report on harms to patients within the system. The report found multiple instances of ‘gross human rights violations’. They described the consistency of these breaches as ‘breached with such regularity that rights are rendered illusory’.

This report was conducted and completed through the hard work and lived experience of many talented researchers, including Simon Katterl. When he presented this damning report to the state government, not only did they reject the report, but they also demanded he either change it or be prevented from publishing it. The report detailed multiple instances of cruel and inhumane treatment of patients within the mental health system. This bill will protect those vulnerable Victorians from such devastating acts of cruelty.

The bill has been drafted with a very simple intention: to strengthen protections for three human rights categories within the Charter of Human Rights and Responsibilities. These are: section 9, ‘Right to life’; section 10, ‘Protection from torture and cruel, inhuman or degrading treatment’; and section 11, ‘Freedom from forced work’.

This bill introduces a human rights descriptor from the charter’s ICCPR source material to it: the descriptor of non-derogation. A non-derogable right is separate and distinct from an absolute right. An absolute right cannot be restricted or limited in any way and will be prescribed in such a manner. A non-derogable right cannot be restricted beyond its prescription. This is observable in the right to life, which is limited by ensuring that a person not be arbitrarily deprived of life. The limiting of the right to life may not be arbitrary, such as instances of medically assisted euthanasia. This would be a limitation on a right which is not a derogation of that right.

Legislation protecting rights can be positive or negative in their application. These terms define how these rights should be upheld. The International Covenant on Economic, Social and Cultural Rights is an example of rights which are positive in nature. These rights compel signatories to perform specific actions as part of their obligations to protect and uphold rights.

The International Covenant on Civil and Political Rights is an example of rights which are negative in nature. These rights place limitations on what a signatory can do for the purpose of protecting and upholding prescribed rights. One compels action, while the other limits action.

The charter took inspiration and modelling from many documents, but none more than the ICCPR. The protection of rights within the charter are either negative in their application, or neutrally recognise a right without compelling any action. This is the approach used in the ICCPR. It is the intention of the provisions within this bill to maintain that application of negative rights to limit what the government can do when engaging with non-derogable rights.

The only thing worse than breaching obligations under the charter would be sidestepping them entirely. This was done multiple times over the course of the pandemic using pandemic orders. From the perspective of a reasonable person, when something looks like a duck, sounds like a duck, and acts like a duck, there is little room for doubt that the creature before them is indeed a duck. So, when the government issues public health orders to the state that look like legislative instruments, sound like legislative instruments, and act like legislative instruments, it raises alarm bells when those orders are enforced under the claim that they are not legislative instruments.

As instruments, they should have been considered by Parliament and the Scrutiny of Acts and Regulations Committee to ensure the freedoms, rights, and liberties of Victorians were upheld with full transparency. This bill provides further protections of human rights under legislative instruments and statutory rules by requiring members to make further considerations of impacts these provisions will have on non-derogable rights and provide instruction on the obligations of members when these rights do engage a non-derogable right.

Similar provisions will apply to the legislative process for statements of compatibility. In instances where a proposed bill would impact on a non-derogable right, the member will have obligations to consider if these engagements will limit a non-derogable right and, if they do, will be obligated to make a declaration of limitation on a non-derogable right. This procedure exists to ensure compatible operation of this bill with the constitutional powers of lawmaking bestowed to this Parliament. It is my sincere hope that this provision is never utilised by this or any future member of Parliament.

There were no pandemic orders more disturbing than the vaccine mandates. Medical procedures which concern what goes into our bodies are and should always have been a personal choice. Section 10(c) of the charter describes protection from torture as including:

A person must not be –

…

subjected to medical or scientific experimentation or treatment without that person’s full, free and informed consent.

The Australian Immunisation Handbook details the importance of practitioners establishing valid consent and describes valid consent as requiring four elements. The second element is this:

It must be given voluntarily in the absence of undue pressure, coercion or manipulation.

No person in their right mind would describe a mandate as being free from pressure, coercion, or manipulation. Yet the government regularly skirted around this obvious fact with mental gymnastics, backwards rationalisation, and relied heavily on precedent from international jurisdictions which do not follow the Australian requirements for establishing valid consent. This was not even mentioned in the minister’s statement. This bill will ensure no derogation of that fundamental right is used by the government to justify subjecting the entire state of Victoria to medical experimentation without consent.

This bill also removes the override provision in the human rights charter. This government has broken this trust time and time again with unsatisfactory or no explanation for doing so. Until the government has repaired this broken trust by acknowledging its breaches of the charter and apologises to Victoria for doing so, it would be unconscionable for the government to retain the override powers under section 31 which this bill repeals.

When applying further protections to human rights, precautions must be taken to avoid creating conflicts between them. In their submission to the United Nations committee for review’s draft general comment of the ICCPR right to life under article 6, the Australian government outlined the importance of interplay between rights by saying:

In Australia’s view, the draft General Comment draws overly broad connections between compliance with Article 6 of the Covenant and other human rights obligations. Australia considers that not all human rights violations are connected to the right to life. Rather, each provision of the Covenant should be interpreted and applied independently.

Further, they add to this distinction:

… Australia does not agree with the characterisation of Article 6 as ‘the supreme right’. Australia’s position is that there is no hierarchy of rights; all human rights are universal, indivisible and interdependent …

This sentiment is adopted in the intention of this bill. Non-derogable rights are not to be seen as being any more or less important than a derogable right, and their non-derogable status should not be used as a justification for limiting any other right.

Earlier this year Australia joined Rwanda as among the only countries to have had visits cancelled by the United Nations subcommittee on the prevention of torture. Their visit was intended to provide external oversight of how people detained in Victoria are treated. I was supportive of this, but the failure to adequately facilitate this visit is yet another example of how we are falling short on human rights protections in Victoria.

We can, and we should, do better.

I commend this bill to the house.

Lee TARLAMIS (South-Eastern Metropolitan) (10:22): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.