Exerting a moral force

THE woman was married, lived in Yorkshire, and was so disabled that she could not leave her bed. The occupational therapy department helping look after her at home said she needed a special bed so that carers could bathe her in it. She wanted a double bed so she could continue to sleep with her husband. She offered to pay the extra cost herself.
The authorities refused. Bureaucracies can be like that: rules, forms, sticking to precedent at the expense of common sense and kindness.
But this woman did not give up, and her story shows some of the flaws in the debate about Victoria’s new Charter of Human Rights and Responsibilities.
After an 18-month stalemate, the woman invoked the UK’s Human Rights Act and her right to respect for private and family life. The health authority did a U-turn and found enough money to pay for the new bed in full.
The woman’s story comes from a British report assessing the consequences of the UK’s Human Rights Act 1998, the legislation on which Victoria’s new charter is based. The report, Changing Lives, was written by the British Institute of Human Rights and examines cases in which the law improved individual lives without anyone having to go to court.
If you can trust this report, and the conclusions of a Review of the Implementation of the Human Rights Act by the UK’s own Department of Constitutional Affairs in 2006, you would have to discount the Chicken Little predictions of disaster-for-democracy that have dogged Victoria’s charter, which came into full effect on January 1.
Victoria’s Charter of Human Rights reinforces existing laws and provides clear protection of “new” rights including freedom of expression, freedom from forced work, protection of families and children, and protection against cruel, inhuman and degrading treatment. Its underlying principles are summed up by the acronym FRED: freedom, respect, equality and dignity. The charter requires all public authorities to comply with these principles.
It is not a licence to make a big noise over little things. An alleged human rights breach can be taken to court only if it is part of another case or “action”, such as a claim of assault or negligence. Complainants do not have any right to damages. The charter offers only the rights to challenge, to be heard and to be answered – publicly.
If a court finds that a policy or law breaches the charter, it does not have the power to strike it down or override it. The court can only declare that it is incompatible with the charter. The state Attorney-General must respond to this declaration within six months, and the Government can make any changes it sees fit – or leave the law as it is.
The charter’s critics say this marks a dangerous shift in power from elected parliamentarians to the unelected judges of the Supreme Court. They fear it will lead to a US-style politicisation of the judiciary, with activist judges interpreting the charter in a way that will force changes on an unwilling Parliament (and, by extension, on an unwilling public). They also predict the courts will be clogged by an avalanche of litigation.
The first of these arguments has a hole one could shoot a cannonball through, and British experience suggests the second argument is a little threadbare too.
Victoria’s charter has inbuilt limits, both in terms of launching a complaint and in terms of forcing change. The ultimate power remains with the Parliament. Critics argue that this is disingenuous because public outcries will force Parliament to change laws found to be incompatible with human rights.
If there is a public outcry, doesn’t that mean the public supports the change – maybe even demands it? Isn’t that what democracy is?
As for a logjam – according to the UK Annual Court Report for 2001-02: “There is no evidence that the Human Rights Act has increased the number of cases lodged, nor that hearing times have lengthened.”
In Britain, as here, human rights laws were lampooned by conservatives who claimed they privileged minorities at the expense of “ordinary people”. In fact, the scenarios the conservatives foretold were not supported by court decisions in the UK. A prisoner who challenged his jail’s ban on pornography was laughed out of court. A Muslim schoolgirl who claimed the right to wear a hijab in a school where it broke the uniform policy was told by the House of Lords – the final court of appeal – to find herself another school.
The British Institute of Human Rights says the act has been good mostly because it forced government to think more creatively about the needs of individuals. It was not court cases that made a difference, but the way the principles produced a different mind-set in those who deal with others’ lives up close. The institute quotes case after case in which bureaucrats with hearts used the act to pressure colleagues who were slower to see the light. As a result, a mother in a psychiatric hospital kept her thrice-weekly visits from her children (the children’s care team had cut them back because it could not afford staff to go with them).
Perhaps most moving was the case of a husband and wife who had lived together for more than 65 years. He was unable to walk unaided and relied on his wife to help him move around. She was blind and used her husband as her eyes. He fell ill and was moved into care; she was told she could not come too. Following a public outcry, she was permitted to move in with him.
None of these three cases went to court. The force applied was moral, not judicial.
No doubt there will be problems with Victoria’s new charter. Everything new has unpredictable results; everything good brings with it some negatives.
But extreme scenarios are not likely. Even if they do arise, let’s acknowledge the other side of the ledger. Critics of the charter have failed to credit the way it also protects the social structures closest to conservative hearts: marriage and the family. — Karen Kissane is law and justice editor.
First published in The Age.