New research examines how Victoria’s Charter of Human Rights impacts government decisions

Victoria’s Charter of Human Rights and Responsibilities was established in 2004 to outline the basic rights, freedoms and responsibilities of all Victorians. It requires Victorian state and local government departments, and people delivering services on behalf of the government, to act consistently with the human rights in the Charter.

There is a distinct lack of research about the Charter from an administrative or policy decision-making perspective, and a new ANZSOG Research report explores public policy decision-making processes by Victorian government agencies in relation to the Charter.

It concludes that more work is needed to further develop the ability of Victorian government agencies to give due consideration to human rights, particularly when decisions about competing rights are required. During Victoria’s COVID-19 response, a range of restrictions were imposed by the Victorian government on movement, business and other activities that continued sporadically for almost two years.

The Victorian Charter of Human Rights and Public Policy: An Exploration of Decision-Making Processes was produced by Executive Master of Public Administration (EMPA) students Paul Barnes, Ben Circulis, Alison Parkinson, Luke Twyford, Weif Yee, resulted from research undertaken as part of the Work Based Project subject of the EMPA.

As decisions to limit human rights can undermine trust in government, Victoria Police (VicPol) sponsored this research to examine how government agencies make decisions which impact human rights.

The Charter protects 20 human rights in three main ways:

• Public servants must act in ways that are compatible with human rights and take relevant human rights into account when making decisions.
• Human rights must be taken into account when Parliament makes new laws.
• Courts and tribunals must interpret and apply all laws compatibly with human rights.

The research assumed that a human rights-based approach to governing produces positive outcomes, and that the application of the Charter in public policy decision-making should occur, not only for legal compliance, but for broad social outcomes associated with public value.

The research considered:

• if formal and/or informal guiding principles, frameworks, processes or other decision-making tools are used to structure these decision-making processes,
• perceptions of such tools to guide public policy decision-making,
• perceived strengths and weaknesses of such tools in decision-making processes,
• why such tools are, or are not, used to guide these decisions, and
• the perceived enablers and barriers to the use of such tools.

It found evidence that the existing formal decision-making processes relating to the Charter may be leading to more robust decisions, and deeper analysis of competing human rights and rights-holders.

The public sector leaders and managers who participated in the research spoke positively about the application of the Charter in their decision-making and encouraged the development and implementation of further decision-making tools, training and other initiatives to further spread and embed a human rights based decision-making culture in the Victorian public sector.

However the research found that awareness of the Charter and its value could be increased and made eleven recommendations which recognise that positive opportunities exist to further develop the ability of Victorian government agencies to give due consideration to human rights, particularly when decisions about competing rights are required.

These include recommending that the Victorian Equal Opportunity and Human Rights Commission should coordinate the development of new formal tools and processes to support Charter decision-making by Victorian public sector agencies, and that Victorian government agencies should spread responsibility for Charter assessments across more roles and role-types to broaden the distribution of Charter expertise and understanding across agencies.

This research has provided important insights into existing decision-making processes, and importantly, the opportunities that exist to strengthen and support them. It has also revealed the extent to which the decision-making processes of agencies, beyond Cabinet and legislative processes, are largely unknown.

The COVID-19 pandemic has created unique challenges for Victoria’s government, including additional complexities for the decision-making context of government, particularly in relation to human rights and individual liberties. Now known for imposing the world’s longest COVID-19 lockdown, the government should support initiatives that build public trust in public policy decision-making.

‘The full report is available here