By John Croker, Managing Principal Solicitor – Human Rights, Victoria Police
At the heart of a well-functioning government is its ability to maintain community trust and confidence. Key to this trust and confidence is integrity in how decisions are made – are decisions well considered? Are they non-discriminatory and impartial? Is the rationale clear and publicly available?
IBAC and other Victorian integrity agencies work to explain what it means to have integrity in government decision making. In this article, I discuss how integrity is intrinsically connected to human rights in the decisions made by government.
Human rights are a central part of all ethical decision making in government, particularly through the application of the Charter of Human Rights and Responsibilities Act 2006.
All parts of government in Victoria – including private companies and community organisations that provide services on behalf of the Victorian Government – have the same legal obligation under the Charter. We must properly consider and act compatibly with the human rights protected under the Charter (this obligation is found in section 38 of the Act).
The clearest way to explain this is that we must always factor human rights in all our decisions. How will this decision impact a person’s human rights? Their freedom of movement? Their right to fair and non-discriminatory treatment? The protection of their family? Their right to privacy?
Our decisions can have a negative impact on a person's human rights (also known as 'limiting' a person's human rights) but this can only occur where there is a lawful, necessary and proportionate reason to do so.
The clearest recent example of how human rights are impacted across our community (and communities around the world) is the response to the COVID-19 pandemic. The health directions put in place to address the transmission risk of the virus have had significant impacts on the human rights of all Victorians. These measures could not have effectively addressed virus transmission without a high level of trust and understanding of the necessity of such restrictions by our community, and the resulting community compliance with the restrictions.
The Charter as an ethical and legal framework for decision making
How do we apply a human rights lens to decisions we make in government? We need to have a lawful basis for the decision. This requires us to be clear about what the law permits us to do, and not purport to exercise a power we do not have under law.
We need to make sure our decision is necessary and proportionate. Necessary because we have an important objective to achieve – for example, to address the serious risk to public health that COVID-19 poses – and that our actions will achieve our objective. We cannot be justified in limiting a person’s human rights if our actions will not achieve our objective.
Our decision must be proportionate to the impact it will have on an individual’s human rights. The more significant the limitation on a person's human rights, the more thoroughly considered our justification must be. And we need to consider if there are less restrictive options available – could we achieve what we need in a way which doesn’t impact a person’s human rights as significantly?
The quality of decisions we make in government will be improved if we balance these considerations in our decisions. Documenting our decisions, and reflecting the above analysis with respect to human rights allows us to provide a clear justification to individuals affected by our decision, as well as giving us the rationale needed should there be future scrutiny of the decision.
You can contact the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) if you are interested in further guidance on how to incorporate human rights into your work. VEOHRC have online training modules, and also tailored face to face training, on the Charter and human rights in government decision making.