This is implicit in section 38 of the Charter which requires that public authorities give proper consideration to, and act compatibly with, human rights. The European Court of Human Rights has held that human rights should be interpreted and applied in a manner which renders them ‘practical and effective, not theoretical and illusory’: Goodwin v United Kingdom, application no 28957/95, 11 July 2002 at [74] (ECtHR). It is open to Victorian Courts to adopt this principle of interpretation.
11.
At the World Conference on Human Rights held in Vienna in June 1993, 171 countries reiterated the universality, indivisibility and interdependence of human rights, and reaffirmed their commitment to the Universal Declaration of Human Rights: World Conference on Human Rights, ‘Vienna Declaration and Program of Action’, A/CONF.157/23 (12 July 1993).
12.
See, for example, BrandisGeorge, ‘The debate we didn't have to have: The proposal for an Australian bill of rights’ (Address to the James Cook University Law School, Townsville, 14 August 2008).
Section 38 of the Charter provides that public authorities must give proper consideration to and act in accordance with Charter rights.
19.
Victorian Equal Opportunity and Human Rights Commission, From Principle to Practice: Implementing the Human Rights Based Approach in Community Organisations (2008), 6.
20.
Ibid; Victorian Equal Opportunity and Human Rights Commission (2007), The 2007 Report on the operation of the Charter of Human Rights and Responsibilities: First steps forward; The UK Ministry of Justice (2008), Human Rights Insight Project, Ministry of Justice Research Series 1/08, January 2008.
Interview with Victorian Aboriginal Community Services Association Ltd (VACSAL) (Telephone interview, February, 2009).
23.
See, for example, Committee on the Elimination of Discrimination against Women, General Recommendation No. 25, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on Temporary Special Measures, UN Doc A/59/38 (2004) [10].
24.
See, for example, Committee on Economic, Social and Cultural Rights, General Comment No 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights, UN Doc E/CN.12/2005/4 (2005), at paras 18–21; Human Rights Committee, General Comment No 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), at para 6–8; Human Rights Committee, General Comment No 18: Non-Discrimination, UN Doc HRI/GEN/1/Rev.1 at 26 (1994), at [5].
25.
Section 32(2) of the Charter provides that international law may be considered in interpreting a statutory provision. As the Charter has only been in full effect for a short time, international jurisprudence is often the best (and sometimes only) guide to interpretation of Charter rights.
26.
Specific treaties have been adopted to address the particular needs of certain groups, for example, Convention on the Rights of the Child, opened for signature 20 November 1989, 1249 UNTS 13 (entered into force on 2 September 1990); Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 993 UNTS 3 (entered into force 3 May 2008). Section 32(2) of the Charter provides that international human rights law is relevant to the interpretation of Victorian legislation.
27.
‘Introduction to Volume 3: Changing Perceptions About an Issue’ in SoohooCynthiaAlbisaCatherineDavisMartha (eds), Bringing Human Rights Home (2008) xix.
28.
DuffyEugene, ‘Move on Powers Rejected’Bendigo Advertiser (Bendigo), 22 August 2008.
29.
Interview with Springvale Monash Legal Service (Telephone interview, February 2009).
30.
Human Rights Committee, General Comment 18, Non-discrimination, Thirty-seventh session, 1989, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 at 26 (1994).
31.
Persons deprived of their liberty may not be ‘subjected to any hardship or constraint other than resulting from the deprivation of liberty’: Human Rights Committee, General Comment No 21 (Replaces General Comment 9) concerning Humane Treatment of Persons Deprived of Liberty, (2003) UN Doc HRI/GEN/1/Rev.6 at 153. This means that, other than by virtue of the fact of or necessities as a result of detention, a person detained in a Victorian prison retains all of their rights. See also Principle 5 of the UN Basic Principles for the Treatment of Prisoners, UN GA Res 45/111 (14 December 1990), which provides that ‘[e]xcept for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.’
