This proposed Charter provides a list of statutory rights for South Australia. Introduced by the Honourable Mark Parnell, the Bill was first read in December 2020 and is currently awaiting a second reading.
Background
The Charter is based on the Victorian Charter of Human Rights and Responsibilities. All rights listed, with one exception (right to a healthy and sustainable environment), stem from Australia’s international obligations. When read for the first time, the Bill was described as a necessary State action in the absence of a national regime.
The Bill
The Rights
Part 3 (cls 9-34) of the Charter lists the rights provided. The Bill differs from the Victorian Act in providing the right to adequate housing; the right to the enjoyment of the highest attainable standard of physical and mental health; the right to a healthy and sustainable environment; the right to education; and the right to enjoy economic, social, cultural, civil and political rights. Regarding cultural rights, cl 26(2) provides that First Nations persons hold distinct cultural rights and must not be denied their right to enjoy identity and culture; maintain language; and maintain kinship ties and maintain spiritual, material and economic relationship with the land and waters and other resources.
Obligations imposed
The Bill ensures all statutory provisions, whenever enacted, are interpreted as far as is possible in a way that is compatible with human rights (cl 39). The Bill also obliges all public authorities to act in a way that is compatible with human rights (cl 45). Statements of compatibility are required for all Bills introduced (cl 35), and the Legislative Review Committee can report on such compatibility (cl 37). This follows similar clauses in Victoria, the ACT, New Zealand and the UK.
Action under the Charter
The Charter gives the Supreme Court jurisdiction to declare that a statutory provision cannot be interpreted consistently with a human right and require the relevant Minister to respond to that declaration (cl 40, 43), but the legislation remains valid (cl 36). The Attorney-General has the right to intervene in any proceeding relating to the Charter (cl 41), as can the Equal Opportunity and Human Rights Commissioner (cl 47). Clause 38 allows the Parliament to override the Charter and human rights in exceptional circumstances.
Part 5 further provides the role, functions and powers of the equal opportunity and human rights commissioners. Part 6 of the Bill provides for the Charter's review after four and eight years.