The Victorian Charter of Human Rights and public policy: An exploration of decision-making processes

Victoria’s Charter of Human Rights and Responsibilities establishes 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. Twenty human rights are protected, 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.

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

This research supposes that a human rights approach produces positive outcomes, and that a rights-based decision-making process enables public sector employees to make robust decisions, particularly through the balancing of competing rights.

Consequently, 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.

This research explores perceptions and use of decision-making tools and frameworks to guide Charter-based public policy decisions in Victorian government agencies. 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.

Specifically, this research has 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.

To meet the research objectives, an exploratory approach to primary data collection was used. Targeted, semi-structured interviews were designed to support meaningful engagement with participants on matters most relevant to their experience. To complement primary data collection, existing evidence (secondary data) was examined through a documentary analysis.

Triangulation of primary and secondary data has provided rich insights to the research question. Thematic analysis has informed the findings and recommendations of this report, and areas for future consideration.

This research has provided insight into how Charter decisions are made, and the experiences and perceptions of the people who make them. It has 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. Based on the data collected the research found that:

• Formal decision-making processes are largely limited to cabinet and legislative processes.
• There are low levels of awareness of processes used in other agencies.
• Leaders are confident that their processes are leading to better decisions.
• There is appetite and scope for new tools and processes, but there is a need for careful consideration of the support they might require.
• There are signs of a healthy commitment to and culture of Charter implementation, but the visibility of this commitment and culture needs to increase.
• There are risks associated with the resourcing and specialisation of Charter decision making.
• There may be some inconsistencies in decision-making processes, and possibly poor practice.
• There is a need for more research on Charter decision-making.

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.

Eleven recommendations are made 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.

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.

With appropriate framing, recommendations from this report should be considered as part of a suite of measures to restore public trust in government more broadly in light of recent criticism related to decision-making and transparency.

This research paper was prepared for Victoria Police by students in ANZSOG’s Executive Master of Public Administration (EMPA) program as part of the EMPA’s Work Based Project module. Work Based Projects are a key part of the EMPA and see teams of students, who are public servants themselves, conduct original research and make recommendations on an issue of concern to a public sector agency. This research has been made publicly available by ANZSOG, with the permission of Victoria Police, because of its quality and relevance to public sector agencies more broadly.