Addressing Indigenous Exclusion and Discrimination through Self-Determination

The plight of many Indigenous communities in Australia is the most significant and pressing human rights issue in this country.  Indigenous communities continue to be subjected to both direct and systemic discrimination, with the result that they remain particularly disadvantaged in their enjoyment of other fundamental human rights.  During her recent visit to Australia, Amnesty International Secretary-General, Irene Khan, observed that ‘the longstanding failure of Australian governments to turn this tide of human tragedy demands much more than condemnation’. The denial of basic human rights for many Indigenous peoples is not just a matter that affects Indigenous Australians themselves, but is also a matter that should be of serious concern to the entire Australian community.  As a society, we all suffer when the poor, the dispossessed, the oppressed and the vulnerable are unable to assert their basic human rights.  Inequalities waste human potential, often lead to social instability, and rob our nation of the opportunity for all of us to benefit from the richness of diversity.

Discrimination is both a cause and consequence of poverty and social exclusion.  Discrimination often traps marginalised individuals and communities in a downward spiral.  Discrimination, marginalisation and exclusion often lead to poverty and economic under-development, which in turn leads to further discrimination.

The result of this cycle of poverty and discrimination is that minorities, such as Indigenous Australians, are often left behind because they do not have the opportunity to have their voices heard.  When it comes to policy making and decision making about matters which directly affect them, often the unique circumstances of their exclusion are not taken into account.  This leads to isolated communities, a lack of basic services, lack of education, distrust of government, violence and immense and lasting psychological damage.

Discrimination is not only caused by laws and policies.  Discrimination also manifests by feeding deep-seated social prejudices, which perpetuate feelings of disempowerment, marginalisation and social exclusion.

The key to addressing the situation faced by many Indigenous communities is the empowerment of those communities.  Many Indigenous Australians are often unable to speak for themselves and to assert their basic human rights.  Human rights promote political participation, empowerment, and addressing the key causes that lead to poverty in the first place.  Rather than a top-down paternalistic approach, addressing disadvantage requires engaging with affected people, and involving them in the design and implementation of community based approaches to achieve substantive equality.

If I were Attorney-General, I would take the following first steps to address Indigenous disadvantage in Australia.

First, I would immediately reinstate the operation of the Racial Discrimination Act 1975 in full and in respect of all aspects of the Northern Territory Intervention.  Instead of looking to implement technical, legal amendments in an attempt to characterise Northern Territory Intervention measures as ‘special measures’ under the Racial Discrimination Act, the RDA must be fully reinstated to enable scrutiny of whether the measures properly constitute ‘special measures’.

The fact that the legislation was suspended in the first place is a matter of great concern, and clearly breaches Australia’s international human rights obligations.  The result of the suspension of the Act is that, both practically and symbolically, the measures designed to ‘Close the Gap’ will simply not work.

Practically, suspension of the Racial Discrimination Act has meant that the Intervention’s measures cannot be scrutinised for whether they do actually meet the criteria required to be classified as ‘special measures’ for the benefit of Indigenous communities.  Symbolically, the wholesale brushing aside of rights of non-discrimination, and the implementation of draconian, racially-based policies, is particularly damaging to the relationship between Australian governments and Indigenous Australians.  Such measures have contributed to strong feelings among Indigenous communities of disempowerment, disillusionment, voicelessness and distrust of government.

Of course, reinstatement of the Racial Discrimination Act would require that particular aspects of the Northern Territory Intervention be redesigned.  In this respect, and as a crucial second step, it is clear that many of the Northern Territory Intervention measures, as currently constituted, must be scrapped.  In their place, appropriate measures must be designed that involve the full, meaningful and effective participation of affected Indigenous communities.

In this respect, listening to the voices of affected communities and involving them in working out ways to address their disadvantage is crucial to ensuring that measures designed to Close the Gap and address Indigenous disadvantage are effective, culturally appropriate and, most importantly, have the buy-in and support of those communities.  Particularly in the context of the significant investment of public funds by Government – over $1 billion – there is therefore also a very real public interest in ensuring that such programs are effective.

Thirdly, I would ensure the establishment of an effective, adequately resourced national Indigenous representative body.  Significant steps have been taken in the last 12 months towards the establishment of such a body.  However, it is noteworthy that the Northern Territory Intervention measures were designed and implemented – and continue to operate – at a time when there has been no representative body for Indigenous Australians.  A representative body would enable Indigenous Australians to participate meaningfully in policy formulation and public debate about matters that directly affect them.

Fourthly, I would move to amend the ‘race power’ contained in the Australian Constitution, which has been interpreted by the High Court of Australia to enable measures to be passed to the detriment of Indigenous Australians.  The human rights issues which have resulted from the Northern Territory Intervention are evidence that an entrenched guarantee against racial discrimination that would override the law of the Commonwealth is required.

Finally, I would ensure that all of the proposals above were further developed and implemented in close, ongoing and respectful engagement with Indigenous Australians, consistent with their fundamental right of self-determination.

Ben Schokman is a Senior Lawyer with the Human Rights Law Resource Centre

Indigenous Rights: Federal Government Must Immediately Reinstate the Racial Discrimination Act 1975

In a letter to the Prime Minister, the Attorney General and Minister Macklin, the Human Rights Law Resource Centre has strongly urged the Rudd Government to immediately reinstate the operation of the Racial Discrimination Act 1975 (Cth) to apply to all measures of the Northern Territory Intervention.  The letter has been endorsed by more than 150 non‑government organisations from all over Australia, including Indigenous organisations, peak bodies, religious groups and other community groups. The letter explains that the reinstatement of the Racial Discrimination Actwould ensure that laws, policies and practices designed to “Close the Gap” will be effective and beneficial for Indigenous peoples, and would demonstrate and confirm the Rudd Government’s commitment to the protection and promotion of human rights.

Click here for a copy of the HRLRC's media release.

Improving Australian Democracy with a Human Rights Act

As Attorney-General, my first priority would be to formulate a Government response to the report of the National Human Rights Consultation, chaired by Fr. Frank Brennan.  The 450 page report is extensive and contains a very wide-ranging series of recommendations.  Some are controversial and there has already been a lot of related traffic across my desk.  I received a delegation from the Churches, led by Cardinal Pell, who was concerned about the impact that the recommendation that Australia adopt a Human Rights Act might have on religious organizations.  Catherine Branson QC, President of the Australian Human Rights Commission has made it clear, on behalf of her constituency, that the Commission strongly supports the Consultation Panel’s principal recommendations.  I expect a petition of thousands from Get-Up any day now.  The politics of this are not easy. There are things in the report I don’t like.  For example, the Panel recommends that we develop a national human rights education plan in order to promote what they call a ‘human rights culture’.  I think I know what they’re getting at but the language has a certain all-embracing fervour about it that I find unattractive.  I am committed, however, to educating Australians much better about our constitutional, governmental and human rights framework.

This is much needed if the Panel’s independent polling suggesting that Australians still have much to learn about these things is anything to go by.  I’m also a bit bothered by the Panel’s suggestion that we should consider ourselves as ‘rights-holding entities’.  I’m not sure that doing so would advance our image of ourselves or our conception of the nation terribly far.  I don’t identify as an entity.

My more general impression, however, is that the report is informed, thoughtful, rigorous and compassionate.  It provides a sound and sensible foundation for protecting the fundamental human rights of all Australians.  And I am impressed by the very large numbers of people who took the time to make their views known.  No other inquiry in Australia’s history has generated this degree of interest and involvement.

Wisely, the Panel conducted independent polling concerning Australians’ views as to whether their human rights are adequately protected and whether they support the enactment of comprehensive human rights legislation.  The fact that more than 80% supported that option weighed heavily with the Committee and it does with me too.

So, it is my intention to recommend to Cabinet that the Government introduce a Commonwealth Human Rights Act.  The Act would protect the fundamental human rights of Australians that national governments of every political complexion have promised to observe when they ratified all seven major UN human rights treaties.

The Committee suggests that many of its recommendations may be set in place even without the introduction of a Human Rights Act.  That may be so, but it is my view that none of those recommendations will be as effectively implemented unless there is a statutory foundation for human rights protection.

For example, human rights education in schools will only be effective if school kids understand that their human rights are embodied in law and that, therefore, society regards them as reflecting values to which all Australians are firmly committed.  The Panel recommends that the Federal Government should conduct an audit of all federal legislation to determine whether it is consistent with our international human rights obligations.  But surely it would be better if this audit was conducted by reference to specific, national human rights legislation than to try and audit by reference to more general, internationally mandated standards.  Similarly, the Panel recommends that a new Joint Committee on Human Rights be established in the Federal Parliament.  This Committee would review all Bills for compliance with human rights.  This is a great recommendation that would do much to strengthen the Parliament’s role in holding the Government to account.  But, as the adviser to the equivalent British Committee made clear during a visit to Australia, the Committee will only have the influence it should if it is backed by enforceable, national human rights law which also provides for judicial remedies where appropriate.

Finally, I’m reassured by the fact that the Panel has recommended that the ultimate say on the validity of legislation will rest with the Parliament rather than the Courts.  Of course, as a politician, I would say that.  But there is a point of principle here as well; we live in a Westminster and not a Washington system of government.  And in this system we need to recognize that legislative supremacy must in the end rest with the Parliament.

Having said that, however, I’m not at all troubled by the Courts ruling on whether federal laws are consistent with the rights set down in an Australian Human Rights Act.  The Parliament will write the legislation.  The Courts will interpret it.  That is as it should be.  Armed then with the considered views of the relevant Minister, the parliamentary human rights committee and the judiciary, the Parliament will be in the best position possible to determine whether, and in what way, its legislation should best be amended to conform with the fundamental human rights to which we, as Australians in all our diversity, have declared our common commitment.

Now, to persuade the Prime Minister…

Professor Spencer Zifcak is Allan Myers Chair in Law and Director, Institute of Legal Studies, Australian Catholic University

Law as a Conversation with Community

In a 2004 paper on ‘The Evolution of the Role of the Attorney-General’, Alana McCarthy observes that the ‘role of the contemporary Australian Attorney-General is very much open to interpretation by its office holder’. She notes the development of the office from its origins as the King’s Attorney in Medieval England. She reviews many of the controversies surrounding the office; from suspicion in England in the 15th century that the Attorney General was a ‘tool of the Crown and the Lords’ to our more recent debates in Australia as to whether the Attorney General should defend the judiciary from political attack. Most often today the position is interpreted in terms of its relationship with (and within) government or with the legal profession. As a community lawyer and advocate, I would interpret the role in terms of its relationship with the Australian community. I’m interested to find out more about what the community expects from the law. As Australians, what is our vision of justice? And how can the Attorney General make justice a reality for the Australian community?

In the closing pages of Dreams From My Father, Barack Obama talks about the relationship between community and the law. He describes the law unromantically as ‘a sort of glorified accounting that serves to regulate the affairs of those who have power – and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.’

These words may resonate for many Australians, particularly Indigenous Australians. However the man who has become the first African-American President of the United States of America still gives hope for those of us who work with the law. ‘The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience,’ he says.

What does that conversation look like for Australians? And for those of us who work with the law, are we helping or hindering that conversation with the Australian community?

The Law and Justice Foundation of New South Wales has as its objects to contribute to the development of a fair and equitable justice system which addresses the legal needs of the community and to improve access to justice by the community (in particular, by economically and socially disadvantaged people). Since 2002 it has conducted an Access to Justice and Legal Needs Research Program. In 2006 it published ‘Justice Made to Measure’ which included some challenging findings for many of us.

Research participants were drawn from a number of communities that experience social and economic disadvantage. The participants were asked to identify the types of advisers that they had approached for help, advice and information in response to legal issues. In only 25 per cent of situations, was assistance sought from a legal adviser. In other words these community members were more likely to seek assistance for legal issues from non-lawyers than lawyers.

In the area that I work in, the evidence is mixed as well. Working with children does give you a fresh perspective on the law. It is clear that the legal system is built for adults. Generally the legal system fails to provide appropriate mechanisms for the voices of children to be heard. Further, the inherent disadvantage experienced by children in dealing with the law is often compounded by the barriers that exist as a result of their circumstances – poverty, family conflict and/or violence, discrimination, disability, and distance (both geographic and cultural).

But the news is not all grim. Even though we don’t see children lining up to litigate to enforce their rights, their thirst for knowledge about the law is strong. Children do want to know their rights. Each year the National Children’s and Youth Law Centre’s Lawstuff website (www.lawstuff.org.au) attracts between 4 and 5 million hits. For those children who can’t find the answer they want on the site, many send us emails asking specific questions – around 1000 a year. Many other services that provide legal information that is designed specifically for children will tell you similar stories.

We do need to rethink some of our assumptions about how we provide access to justice for children. We need to develop new models of advocacy, innovative ways to hear complaints, to remind duty bearers of their responsibilities to respect rights and to resolve disputes. And although children have specific needs, many of the lessons that we can learn if we listen to those who stand outside our existing legal system can enhance access to justice for everyone in our community.

We need renewed effort to make the law easier to understand. We need to recommit to the development of resources that help communities resolve issues and disputes for themselves. As advocates, we need to put communities in control of solutions; and to put clients in control of their own cases.

In terms of our Australian version of the law as ‘a nation arguing with its conscience’, I see the current National Human Rights Consultation as a renewed start to such a conversation. But that conversation must continue and must extend beyond the lawyers and the politicians – the elites that have power – to include ordinary Australians. To paraphrase Obama’s words, we must stop using the law to explain to others the justness of their condition and listen to what others expect of the law.

James McDougall is Director of the National Children’s & Youth Law Centre

Right to Health: Briefing Paper on Australia to UN Special Rapporteur on the Right to Health

In September 2009, the HRLRC prepared a Briefing Paper on Health and Human Rights in Australia for the UN Special Rapporteur on the Right to Health, Anand Grover, in advance of his country mission to Australia in November and December 2009. The Briefing Paper considers a range of issues regarding realisation of the right to health in Australia, including:

  • The Legal Protection of the Right to Health in Australia
  • Recent Reviews of Australia by UN Treaty Monitoring Bodies
  • Public Health
  • Indigenous Health
  • Mental Health Services
  • Asylum Seekers
  • Homeless People
  • Prisoners
  • Women’s Health
  • Climate Change
  • Children’s Health

Realising Rights in the Community

During the National Human Rights Consultation, I participated in a number of community forums, meeting with homeless people, elderly people, community workers and young people.  The purpose of these forums was to ensure that, instead of simply speaking for these people, we facilitated their direct engagement with the consultation.  What I also discovered was the extent to which these kinds of forums were a two-way street, as the participants offered insights and practical solutions to some long-standing problems. Based on what I heard and experienced in the community consultations, as Attorney-General I would immediately enact a National Charter of Human Rights that was a mixture of the Canadian and UK models.  It would become the framework within which my department would operate for the rest of my term.  Importantly, it would protect economic, social and cultural rights (as well as civil and political rights) on the basis that human rights are interrelated and indivisible.  Furthermore, providing Australians with formal ‘rights’, but not effective redress is pointless, so I would therefore include a free-standing right of action in the Charter as well as a provision enabling human rights advocacy groups to bring claims under the Charter.

I would also establish a large working group of people from all walks of life, including Aboriginal elders, old people, young people, homeless people, people with a disability, gays, lesbians, asylum-seekers as well as former judges, lawyers and politicians, to assist me in coming up with a broad campaign to maximise the effectiveness of human rights legislation in Australia.  If we are going to talk the talk about human rights, we have to walk the walk and ensure that human rights protections are not simply something for ‘legal experts’, but a tool that empowers the community, particularly disadvantaged members of the community, to have a voice in matters that concern their lives and their rights.  Involving people in decision-making processes and in the formation of public policy is itself a human right enshrined in art 25 of the International Covenant on Civil and Political Rights.

I anticipate that one of the key issues that the working group would focus on would be a public education campaign to introduce the language of rights into our community.  My sense is that this would involve a range of strategies, including compulsory human rights education for all school children, education modules in community centres, offices and workplaces, and targeted training for judicial officers and government departments. I would, however, wait and see what the working group suggested and work with them to introduce their proposals.

There are a number of existing government policies and legislation that would not be compatible with a Charter and, rather than forcing individuals to fight these issues out in Court, I would insist that the government take immediate action to change these polices.  As a result, we would close down the detention centre on Christmas Island, amend the Northern Territory Intervention legislation so that both the Charter and the Racial Discrimination Act applied, remove the references to marriage being described as a union between a man and a woman in the Marriage Act, introduce six months’ paid maternity leave for all women, establish a Stolen Generations Reparations Tribunal, and initiate a review of counter-terrorism legislation.

I would also implement a number of significant changes to our legal system on the basis that, in too many cases, it does not adequately provide access to justice (let alone ensure justice) for many of the most disadvantaged members of our society.  Some of the key reforms I would make include changing court rules to make it easier for NGOs to intervene in cases to represent the public interest, as well as amending costs rules so that adverse costs would only be awarded in human rights cases against applicants if the claim was vexatious, frivolous or brought in bad faith.  I would also double the funding for community legal centres, Legal Aid Commissions and the Australian Human Rights Commission, given the vital role these bodies play in ensuring access to justice for individuals whose rights have been breached and in bringing human rights breaches to government’s attention.

I would also amend existing Federal anti-discrimination legislation so that it prohibited discrimination on the basis of a person’s sexuality, criminal record and religious belief.  Through the Industrial Relations Minister I would enact equal pay legislation akin to the UK Equal Pay Act, so that courts are able to award backpay to women who are able to show that they are doing the same or an equivalent job to men to ensure that they finally receive the same income.

Finally, I would be so impressed at the human rights working group, in particular their ability to come up with insightful and innovative solutions to difficult issues, that I would ask the members of the working groups to work with NGOs to establish a network of ongoing advocacy and advisory consumer groups throughout Australia.  These groups would meet regularly with all levels of government to provide them with consumer input and advice, which would become a mandatory requirement for all government policy.  There would also be agreement that such consultations should not simply be done through formal procedures such as submissions and parliamentary inquiries but also through focus groups, closer ties to NGOs and this new network of advocacy consumer groups.  Not only would this ensure that Australia realises the promise it made over 60 years ago – to protect, promote and fulfil human rights in Australia – but would also lead to a resurgence in democratic engagement, participation and decision-making.

Lizzie Simpson is a solicitor with the Public Interest Advocacy Centre in Sydney.

The Environment, Child Protection and Indigenous Disadvantage: An Agenda for the Attorney-General of 2015

The boomers will remember the reforms of the 1970s and 80s, spurred by two decades of generational, gender and race conflict, which coloured a then grey Australian justice system.  Most of the reforms, such as no fault divorce, race discrimination and later sex discrimination, are still in place today.  More recently, a dominant concern is the rapport between government and the governed.

As you will recall, in 2010, Australia enacted human rights standards by which to measure our actions.  Yet despite billions having been spent over the last decade, deep-seated problems still need our urgent attention.  Some regions are experiencing the worst weather conditions and events on record, habitat loss and urban sprawl have grown unabated, the gap between rich and poor has widened, and Aboriginal disadvantage and imprisonment have not been stemmed.

Now, in 2015, our government is determined to again look through a different prism, to confront these difficult and controversial problems.  As you know, my role as Commonwealth Attorney-General is unique, as the states and territory parliaments were abolished in 2012.

As Attorney-General, I will work with my cabinet colleagues in this new government elected to govern in the ‘fifth way’ to fully focus on three interlocking policy areas – the environment, child protection and Aboriginal disadvantage – devoting all effort and available funding to achieve real, practical and lasting change to secure our future survival.

We cannot survive – morally or practically – without a healthy and clean environment, which includes diverse and extensive habitats for all species.  The government will introduce environmental legislation that draws a real balance between the importance of a healthy environment and biological diversity and the interests of humans.  So often, when politicians talk about that balance, they are comparing valuable ecosystems with 200 jobs, neglecting our health and the health of the environment over development at any cost and dicing with our very future for the sake of a privileged present.  Of course, employment is necessary for social equity and community well-being, but the rollercoaster of increasing population, energy use, development and consumption, has no destination and is running on empty.  I am uncomfortable with the idea that everything, including air and water has to be valued in monetary terms. Nonetheless, all ideas will be on the table.  We will seek a new paradigm for our age that moves us from self-interest to sustainability, just as the industrial revolution took us out of servitude and subsistence.

Our culture is diminished if we don’t respect our past.  Our past is not just about ANZACS and Bradman, but also about Aboriginal Australians.  Ignoring Aboriginal history and law that protected the environment rather than selfishly exploited it underpins our failure to live more lightly and sensitively in this land.

Children, the most vulnerable members in our society, need our complete protection and care.  The government will oversee a vast increase in early intervention programs and far greater family support.  The government will particularly focus on reducing violence in all its forms.  As Attorney, I will significantly increase funding for violence prevention programs.  Violence has a devastating social impact and cost.

None of this is new.  What will be different is how we approach it:

  • We will take the same sort of approach to these issues taken in 2008 to address the global financial crisis: a vast investment of funding and a concentration of effort.  All ministers will participate in planning and taking ongoing responsibility, not just the relevant ministers.
  • We will greatly increase funding for community services.  Until now, governments have worked in short-term fiscal cycles where funds must be expended or lost and money is wasted while non-government services are starved.  We haven’t saved in the good times for social programs so that they can be sustained when times aren’t so good.  We have a Future Fund and infrastructure funds; we will institute a community investment fund and we will take a long-term focus that gives the community sector confidence in pursuing projects and outcomes.
  • Most of our social programs in the past have been universal in application – one size fits all.  Little effort has been put into devising innovative and sensitive ways to implement new ideas because they are usually done ‘on the cheap’ and imposed down from the top.  Our government will be unified in our goals but have available a multiplicity of responses.
  • Our government will support programs devised and implemented at a local level.  We will support partnerships and collaborations where the contribution of all partners is valued and decisions and responsibility are taken at the lowest appropriate level, particularly by the people who are primarily affected, necessitating a radical overhaul of bureaucratic methods.
  • The government will introduce some structural changes starting at the top so that we can more effectively promote and monitor our reforms, such as that we will: appoint to cabinet an expert in each field to ensure that cabinet discussion is grounded and better informed and debate is more robust; appoint a minister at deputy prime minister level to have overall responsibility for each of the areas of the environment, child protection and Indigenous disadvantage; require all policy decisions to be in the public interest and for the public good; and increase transparency in political donations and in lobbying so we are not diverted from our objectives by a compromised democratic process.

We are not compelled to make the same mistakes if we properly reflect on the past and listen now to the very people who are experiencing the troubles that we are trying to solve.  We will be determined to act with care and not be tripped up in political haste.

Now, if I were Prime Minister ….

Tony Woodyatt is Coordinator of the Queensland Public Interest Law Clearing House

Human Rights Briefing Paper to Justice Yvonne Mokgoro, Judge of the South African Constitutional Court

In July 2009, the HRLRC prepared a Briefing Paper on Key Human Rights Issues in Australia for Justice Yvonne Mokgoro, Judge of the Constitutional Court of South Africa, in advance of her visit to Australia in July-August 2009. The Briefing Paper considers a range of contemporary human rights issues in Australia, including:

  • the current legal and political context for human rights in Australia;
  • recent reviews of Australia by UN human rights treaty bodies;
  • lack of entrenchment of basic human rights in Australia’s domestic laws;
  • the human rights of Indigenous Australians;
  • women's rights and gender equality;
  • immigration law, policy and practice;
  • racial and religious discrimination; and
  • children's rights.

Justice Yvonne Mokgoro, Judge of the Constitutional Court of South Africa, was the Centre's special guest in Sydney, Canberra and Melbourne in July 2009

Briefing Paper on Religious Exemptions under the Equal Opportunity Act 1995 (Vic)

The Victorian parliamentary Scrutiny of Acts and Regulations Committee is currently conducting an inquiry into whether any amendments should be made to the permanent exceptions in the Equal Opportunity Act 1995 (Vic). The Act prohibits unlawful discrimination on the basis of protected attributes, including age, religious belief or activity, sex, race, sexual orientation, political belief, impairment and marital status. The Act also contains over fifty exceptions that permit discrimination on the basis of one or more of those attributes. Currently, exceptions are made for single sex clubs, sporting clubs and religious institutions, among others.

In addition to these exceptions, section 83 of the Act provides a mechanism to apply for, on a case by case basis, exemptions that effectively allow a person or organisation to engage in conduct that would otherwise constitute unlawful discrimination under the Act.

The Human Rights Law Resource Centre considers that the permanent exceptions, including the religious exceptions, should be removed from the Act and replaced by a regime that allows for temporary exemptions in cases where it is reasonable and proportionate to discriminate (similar to the section 83 temporary exemptions regime).

The model proposed ascribes value to all human rights, including the right to freedom of religion and the right to equality. Neither of these rights is absolute in law or in practice and, in cases of conflict, neither should automatically prevail. Instead, competing interests should be considered and balanced. If a discriminatory policy or practice is explained and shown to be reasonable and proportionate then the discrimination would be allowed.

This Briefing Paper on the Removal of Religious Exemptions from the Equal Opportunity Act 1995 (Vic) is set out as follows:

  • background to the exceptions review;
  • amendments proposed by the HRLRC; and
  • responses to arguments against reform.

From Convention to Classroom: Advancing Human Rights Education in Australia

‘If you are thinking a year ahead – plant seeds.

If you are thinking 10 years ahead – plant a tree. If you are thinking 100 years ahead – educate the people.’ - Kuan-Tzu (4th – 3rd Century BC) China

As Federal Attorney-General, I want to leave a legacy that will last 100 years, so my focus will be on educating the people, specifically about human rights.  I am all too aware that Australia presents itself to the international community as a strong supporter of human rights education (HRE).  We have ratified numerous treaties containing provisions mandating HRE, including the Convention on the Rights of the Child, art 29(1) of which states:

States Parties agree that the education of the child shall be directed to: …

(b)           The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

Not only has Australia committed itself to implementing this provision but we have also been a key player in other international HRE initiatives.  For example, we signed up to the UN Decade for HRE (1995-2004) and, in 2004, actually introduced in the UN General Assembly, the draft resolution proposing the World Programme for HRE (2005 – ongoing), which was duly proclaimed.  Thus to all the world, we look like a State that takes its HRE responsibilities very seriously.  However, I know that children in Australian schools do not generally learn about human rights.  There are many reasons for this, including:

  • human rights are not part of the formal curriculum in any state or territory;
  • teachers are not trained in how to teach human rights as part of their teacher training;
  • there is a lack of understanding about where/how to teach human rights (should there be a separate subject devoted to human rights, or should it be incorporated into exiting subjects like English, History or Civics?); and
  • the ‘crowded curriculum’ phenomenon whereby teachers struggle to teach everything that is already in the curriculum within the available time, and therefore resist efforts to add even more material.

I know we have a national Human Rights Education Committee, but it does not appear to have been very active of late.  One of my first tasks as Attorney-General would therefore be to re-invigorate this body, and assign to them the task of developing a National Human Rights Education Plan that is comprehensive, effective and sustainable.  I would stress that I want the Plan of Action to be a practical guide as to the steps that need to be taken in order to ensure HRE is part of the educational experience of every child attending school throughout Australia.

The next step I would take as Attorney-General would be to request a meeting with the recently established Australian Curriculum, Assessment and Reporting Authority.  I know that they are working on a uniform national curriculum and I want to make sure that HRE is an integral part of the end product, so that our domestic practises reflect the international persona we seek to portray in this field.

I have looked at the way human rights education is addressed in our two domestic Human Rights Acts (Victoria and the ACT) and note that in Victoria, for example, the responsibility ‘to provide education about human rights and this Charter’ falls on the Victorian Equal Opportunity and Human Rights Commission (s 41 of the Charter).  To imbed HRE in the school curricula is too large a task for the Commission, and clearly needs to be part of the portfolio of the Department of Education.  If we are to have a national bill of rights, I will make sure that this mistake is not repeated, and that education about human rights, at least within schools, is the responsibility of the Department of Education.  I will lobby my mate, the Treasurer, to ensure that there is money allocated in the budget for this undertaking.

In addition, I would encourage the Australian Human Rights Commission to continue to publish excellent resources for teachers and students about human rights, but to work more closely with relevant Education Departments to ensure greater use of these materials in schools.  This should be possible once HRE becomes part of the formal school curricula.

Finally, I would research the way human rights are incorporated into the school curricula in other countries.  I gather that South Africa, Canada and Ireland have all enjoyed some success in this regard.  No point in re-inventing the wheel, let’s see what we can learn from their experiences.  Come to think of it, maybe I should check my travel budget and see whether I can manage an overseas study tour so that I can get some first-hand knowledge about HRE in practice…

Once all these initiatives come to fruition, we should see a generation of young Australians who understand, respect and promote human rights, and start to build a culture of human rights.  Hopefully, it won’t take 100 years for this dream to be realised!

Dr Paula Gerber is a Senior Lecturer at Monash University Law School, a Deputy Director of the Castan Centre for Human Rights Law, a Sessional Member of the Victorian Civil and Administrative Tribunal, and author of the book From Convention to Classroom: The Long Road to Human Rights Education (2008) VDM Publishers, Germany.

Promoting and Protecting the Rights of Children and Families

If I were Attorney-General, I would legislate to incorporate international human rights treaties such as the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the like into domestic law.  This would be preferable to legislating for a Bill of Rights and would provide an appropriate lead to the eventual incorporation of an Australian Charter of Rights into the Constitution. Another major area that I would reform is the law relating to children and families.  I would seek the consent of the States and Territories to refer their child protection powers and criminal jurisdiction over offences committed by or against children.  If the States and Territories refused to co-operate in the reference of powers, I would rely upon the external affairs power incorporating the Convention on the Rights of the Child to implement national legislation covering the whole of these areas.

The legislation would provide for a unified national Family and Children’s Court.  The Court would consist of three tiers, an appellate division, a general trial division and a summary division.  The new Court would incorporate the existing Family and Federal Magistrates’ Court, which would be strengthened by appropriate appointments from State and Territory jurisdictions.

All judicial officers would be required to satisfy criteria similar to those set out in the Family Law Act: that by reason of training, experience and personality, the person is a suitable person to deal with matters of family and children’s law.

The selection of judges and magistrates would be more transparent, with positions being advertised and appointments being recommended by a neutral committee.

The method of exercising family and child protection jurisdiction would closely resemble the less adversarial jurisdiction of the present Family Court and I would also develop a less adversarial jurisdiction in juvenile criminal cases while protecting existing rights to due process and a fair trial.

The Court’s ability to deal with issues of sexual and other abuse of children and family violence would be strengthened by the provision enabling it to exercise criminal jurisdiction in relation to offences against children.

Geographically, the Court would be divided for administrative purposes into regions that may, but need not necessarily, reflect existing State and Territory boundaries.

The Court would be fully staffed with appropriate professionals including legally trained registrars, psychiatrists, psychologists and social workers, including Indigenous people.  I would also legislate to bring existing family mediation centres into the Court.  I can see little point in preserving these institutions which are directed only at mediation of disputes relating to children in private family law proceedings and would be better integrated into a court that takes an overall view of family problems.

I would see the new Court as providing a model for an eventual Australian judicial system and the reformation of the adversary system as it operates in general law.

The focus of the Court would be very much upon children and their rights and needs, rather than upon the ‘rights’ of parents.  Therefore Howard Government changes made under pressure from men’s groups including presumptions of equal parenting responsibility, and the need for the court to consider equal division of time between parents, would be repealed.

I would legislate for the appointment of an independent Children’s Commissioner reporting to Parliament, with responsibility to monitor the system, including the performance of the new Court.  All legislation affecting children would be referred to the Commissioner for report before being passed.

I would urge the PM to appoint a Minister for Children in charge of a Department of Children.

I would repeal the 2004 amendments to the Marriage Act defining marriage as a union between a man and a woman and reform the law to enable marriages between gay and lesbian and transsexual and intersex people.

In accordance with the recommendations of the Australian Law Reform Commission, I would legislate to ensure that underage Indigenous girls forced into traditional marriage and their children would not suffer disadvantage as a result.  I would similarly look at improving the lot of Islamic women and their children in second and subsequent marriages, whether married under the Marriage Act or pursuant to Islamic law.

I would repeal the Intervention legislation in the Northern Territory and the provisions abrogating the Racial Discrimination Act.  In its place, I would provide proper police services to remote communities, including accelerated recruitment of Indigenous police and the involvement of many more Indigenous people in the Court system as judicial and administrative officers and as counsellors, mediators and social workers.

Finally, I would legislate to preserve Indigenous customary law in so far as it is not inconsistent with human rights principles and for example, recognise practices such as Torres Strait islander traditional adoptions.  I would give legislative effect to the UN Declaration on the Rights of Indigenous Peoples.

The Hon Alastair Nicholson AO RFD QC is the Former Chief Justice of the Family Court of Australia.  He is an Honorary Professorial Fellow at the Department of Criminology, University of Melbourne.

Respecting, Protecting and Fulfilling Economic and Social Rights through a Nation Charter of Rights

If I were Attorney-General I would enact a national Charter of Rights which enshrined all internationally recognized human rights, including economic, social and cultural rights. Governments usually proffer a number of reasons for excluding economic and social rights from Charters of Rights: first, that the inclusion of such rights would breach separation of powers and, second, that they would refer to Courts questions they are not competent to decide.  Economic and social rights are supposedly too indeterminate to be justiciable.  Upon a closer analysis, each of these justifications is incoherent, but that is another debate.  One effect of focusing on whether economic and social rights should be included in a Charter has been to stymie discussion about how they should be included.

So here is how I would include economic and social rights in an Australian Charter of Rights.

First I would ensure that economic and social rights are enforceable as opposed to merely aspirational principles.  To deny the enforceability of such rights would undermine their inalienable character.  Such essential values should not be left solely to the political process for their fulfilment, but rather should be guaranteed so that when they are violated, deprived individuals may seek judicial enforcement.

Second, my Charter would allow for the judiciary to review both negative and positive duties with respect to economic and social rights.  That is, in relation to economic and social rights, Courts would monitor the Australian government’s duty to respect, which requires that it refrain from violating rights; its positive duty to protect, which requires that it prevent individuals’ rights from being breached by third parties; and the positive duty to fulfil which requires it to provide essential goods and services, such as food, housing, health or education, to those without the means to provide for themselves.

Third, in relation to the level of scrutiny by which government action is judged, I would adopt the South African threshold of ‘reasonableness’.  Pursuant to this principle, ‘the precise contours and content of the measures to be adopted are primarily a matter for the legislature and the executive.  They must, however, ensure that the measures they adopt are reasonable.’ (see Republic of South Africa v Grootboom).  Courts would defer to government policy decisions and respect its choice of means but would prod the legislature into action to realize economic and social rights.

Fourth, the level of scrutiny or standard of review should not be confused with the definition of the content of the right.  According to a standard of review based on reasonableness, Courts would decide whether a government measure is reasonable in light of the objective and right it is seeking to uphold.  However, such deference is not accorded to the government in defining the content of the right.  The notion of minimum core obligation as elaborated under international law should be used to define the content of economic and social rights in the Charter.  Courts could draw on the General Comments from the UN Committee on Economic, Social and Cultural Rights and the jurisprudence of other international bodies.  Naturally, as with civil and political rights, it will take some time for the Courts to define the exact content of each economic and social right.  Unlike international treaties, my Charter of Rights would not explicitly codify limitations as to resources and progressive realisation for economic and social rights.  Instead, I would fold this into the general limitation clause which allows the government to limit rights in a reasonable, proportionate and justifiable manner.  Issues of resource allocation and progressive realisation would be considered under the rubric of the limitation clause.

Finally, in relation to remedies, I would not create expansive new remedies for courts in relation to economic and social rights, as some jurisdictions have done in India and the United States.  I would allow Courts to make a declaration that the government is in neglect of its duty to fulfil or protect with respect to the economic or social right in issue and empower the judiciary to require that the government devise and implement a policy to fulfil the right in question.  However, the exact formulation should be left to the government and the Court should not become embroiled in monitoring the implementation.

Although my Charter may appear to advocate an expansive role for the judiciary, it is actually a deferential standard, especially in relation to remedies.  The framework merely attempts to apply usual judicial standards of review to all rights and to all government duties.  Grudgingly, I would follow the current vogue for implementing a Charter according to the ‘dialogue model’, which would downgrade the above framework so that it is not binding on parliament.  Ultimate sovereignty would reside with the legislature.

Andrew Hudson, an Australian lawyer, is senior associate at Human Rights First in New York:hudsona@humanrightsfirst.org.

A Vision for Human Rights

I am the Attorney-General for the Australian Capital Territory.  As the Territory is so small, I also hold four other Ministerial positions, including Minister for Health, Minister for Women, Minister for the Arts and Minister for Disability and Housing.  This multi-tasking gives me such insight into the interconnectedness of social justice issues that I become a powerful advocate for economic, social and cultural rights. By clever liaison with the ACT Greens who hold four seats and the balance of power in the ACT Legislative Assembly, I manage to fast-track the inclusion of economic, social and cultural rights into the Human Rights Act 2004 (ACT), blending the South African and Northern Ireland models to make legal history.  The Canberra Times and BBC World compete to run feature story after feature story about the innovative ESCR policy initiatives in Canberra, focused on domestic violence and housing rights, achieving equal pay for women, addressing homelessness as a human right, guaranteeing full access to quality health care, offering fantastic early childhood education to every child, promoting the dignity of those with mental illnesses, running a fully human-rights compliant detention facility and promoting the rights of people with disabilities.

Indigenous governance, health and education initiatives are an early priority, with Indigenous solutions given the budget and resources they need to be realised over a ten-year time-fame, led by the new Indigenous member of the Legislative Assembly (Canberra residents Mick Dodson and Sir William Deane often help out as special advisers).

I also plough large injections of energy and cash into the cultural life of Canberra.  Very soon, Cate Blanchett and Andrew Upton abandon the Sydney Theatre Company to co-found the Canberra Theatre Company, which also houses the beautiful new Indigenous Arts Centre.  The NTC specializes in free human rights theatre productions twice a week, which are so entertaining that ABC TV and Radio broadcasts them nationally.  The TV version out-rates even ‘So You Think You Can Dance’.  People from Melbourne start to visit for the weekend.

I triple the budget and resources of the ACT Human Rights Commission and the internal government machinery.  I give all Canberra-based social justice advocates a big core-funding grant, tax exempt status, a big office with shared secretariat services, and a two-hour scheduled meeting with me once a week (plus free day spa vouchers so they can finally learn to relax a little).  Part of this new grant money is to fund an innovative public communication campaign (‘Human Rights Rock!’, led by Powderfinger), so that Canberrans start to understand the Act more and learn ways to use it in their dealings with government and public authorities.

All ACT politicians, senior bureaucrats, judicial officers and the AFP are sent off to intensive human rights camp for a month supervised by Professor Hilary Charlesworth.  ANU College of Law has to double its size to cope with all the students who want to enrol in human rights law and devote their professional lives to social justice instead of joining a big firm.

Within the year, so many people from Queanbeyan NSW move across the border to Canberra to reap the benefits of being governed under a human rights culture, that the bell-weather Federal seat of Eden-Monaro has to be redistributed.

On a wave of popular support, I am elected to this new Federal seat of Deane-Dodson and enter the Commonwealth Parliament.  President Gillard immediately sees my potential and promotes me to the post of Attorney-General.  All Federal Parliamentarians, senior bureaucrats, High Court judges and the rest of the AFP are sent off to intensive human rights camp for a month, again supervised by Professor Hilary Charlesworth.  There is also a special year-long camp for the intelligence agencies and the Department of Immigration.

I pull refugee policy into my Department, and again triple the budgets of the Human Rights section and the Office of International Law within the Department, as well as the Australian Human Rights Commission and the Australian Law Reform Commission.  There is a new Parliamentary Secretary for Human Rights appointed to assist me, and her first job is to reform the Cabinet Submission process and legislative scrutiny so that any new initiative is scrutinised for compatibility with human rights, under the Human Rights Act 2009 (Cth).  No Bill can come before Cabinet before the Deputy Secretary for Human Rights in my Department has cleared it.  Then of course, there is the rigorous process of scrutiny undertaken by the new Joint Standing Committee on Human Rights in Parliament, which I sit on when I can.  The Committee has all the powers of a Royal Commission.

This time I give all members of the Attorney-General Human Rights NGO Forum a huge core-funding grant, tax exempt status, offices in Barton with secretariat services (sadly I have to kick out all the pharmaceutical lobbyists and military contractors from their offices to achieve this), and offer scheduled meetings with me once a week.  Everyone who wins the Human Rights Medal gets a statue and a suburb named after them.  The statues go in front of the new Australian Human Rights Centre, which sits right next to the War Memorial and gets equal funding.

Luckily I win four consecutive terms and can implement all the fine policies started in the ACT at the national level.  I never worry about the sustainability of this legacy because of all the young human rights advocates coming through who want to be involved in public life for the promotion of human rights, and so retire happy to dabble in community theatre.

Dr Susan Harris Rimmer is President of Australian Lawyers for Human Rights and a researcher at RegNet, ANU

‘If I were the King of the World, tell you what I’d do…’

Just a line from an old Three Dog Night song that’s been running through my head ever since I was asked to write this article (some of you might remember ‘Joy to the World’ from the 70′s).  A therapist would probably have a field day with the association but I think, being given carte blanche in the Attorney-General’s seat (albeit only in my mind), is as much like being ‘King of the World’ as I could imagine. But before I go on, please let me just say at the outset that I’m neither a lawyer nor a politician and as such, have only a lay knowledge of what an Attorney can and cannot do.  In view of this, I feel I must make a kind of ‘pre-emptive acknowledgement’ that some of the things I will do and some of the changes I will make during my ‘reign’ as Attorney, might for all I know, be entirely impossible, impractical – or, heaven forbid, even illegal!  I also acknowledge that I cannot quote from the various Acts I will change, nor would I even know some of the many laws I will doubtless break.  However, I do trust that in the spirit of this series of articles, your disbelief might be suspended for a short while, and the appropriate legislative amendments enacted and the necessary laws changed in your minds to give me the power to do pretty much whatever I like!

And I would like to start with an area that has particular significance to me on a deeply personal level…prisons.

Way back in 2005, when I was less than a year into a four year prison term, I learned that corrections were putting together a little $25 million package for the women’s correction system called ‘The Better Pathways Strategy’.  All very well and good, but did these measures actually result in any decrease in re-offending?  To be fair, perhaps it’s too soon to tell yet, but my initial response is that ‘The Better Pathways Strategy’, if not the ‘way forward’ to decreased recidivism that it promised, was at least aptly named – the process did deliver some very fine footpaths within the prison!

Jokes aside though, Better Pathways did deliver upgrades to the Medical Centre, the Centre for Education, Industries, the Programs Building and the Visit Centre, as well as refurbishing the old Special Needs Unit (this was re-named Maarmak and re-designated as a ’24/7 Mental Health Care facility’), however none of these upgrades have yet proven to be any more beneficial to women in terms of outcome than the old system did.  Basically, it was a lick of paint and a promise.

So then…

My first official act as AG would be to sack corrections, abolish prisons and rename the buildings ‘Reflection Centres’.  Naturally, some maximum security facilities (maybe one for the men and a small one for women somewhere) would need to remain designated as ‘maximum’ to house violent or sex offenders (we can’t let all the really bad ones out) but as this means less than 15% of women currently incarcerated (in my experience, I’d put this figure at less than 5%), I would recommend Reflection models begin immediately in women’s facilities and gradually roll on into the various men’s facilities.  Women in custody have traditionally received the ‘blunt end of the stick’ (or the left-overs) as far as services, programs and accommodation in minimum security beds are concerned, so in this reform at least, women would be the first to reap the benefits.

The new Reflection Centres for women would no longer be staffed by corrections officers.  They would be operated entirely by professionals and civilians.  Current prison officers would be given the opportunity to re-train as educators, vocational trainers, personal development facilitators or welfare workers, with those not availing themselves of the opportunity being re-designated as ‘security guards’ who would no longer work within the facility or be in contact with the women.  These staff would be re-deployed to security details on the perimeter.  All ‘prison-type’ security would begin and end at this perimeter which would be situated out of sight of the Centre.  Security concerns such as drugs or weapons can be easily addressed from this location but the hyper-surveillance and the hyper-vigilance of the previous corrections model has no place within a Reflection Centre.

The new Reflection Centres will deliver arts programs, such as dance, theatre and music.  They will also offer educational programs, such as computers, graphic arts and other vocational courses, as well as secondary, TAFE and tertiary tuition.  There will be programs to support mothers and children (provision will be made at all Reflection Centres for children to remain with their mothers); drug and alcohol programs; specialised women’s health programs complete with visiting doctors and other health and mental health professionals; sports programs and leisure activities.  Non-government organisations would also be invited to involve themselves in Reflection Centre life, providing invaluable links with community and bringing a sense of ‘normalcy’ to the environment.

Lastly, but most importantly of all, there will be specialist counselling and personal development programs to enlighten, empower and enable women, to heal them and make them whole.  After all, isn’t that what re-integration means, to return the ‘part’ to the ‘whole’?  What good is it to the ‘whole’ if we continually return damaged or broken people?

In view of this, there will be no ‘stick’.  Participation in any Reflection Centre activity will be entirely voluntary.  However, there will be a ‘carrot’ – in the form of a revamped remission system whereby early ‘graduation’ can be earned through voluntary participation in educational or therapeutic programs and the necessity for post-graduation ‘supervision’ limited or lessened.

But, in nearing the end of this article, I’m getting a little ahead of myself.  ’Offenders’ would first need to be referred to Reflection Centres by the Courts and for that to happen with any degree of success, the judiciary, the media, in fact the whole of society, would need to ‘do a 180°’ in their perceptions of the current corrections model and embrace, wholeheartedly, my own vision of ‘justice’.

Perhaps they just need a little time for reflection… Joy to the fishes in the deep blue sea, Joy, to you and me…

Vickie Roach is completing a PhD at Swinburne University and works at the Koorie Heritage Trust.  She completed a four-year prison term at the Dame Phyllis Frost Centre in 2008.  In 2007, Ms Roach established a constitutional right to vote in the watershed High Court decision in Roach v Australian Electoral Commission [2007] HCA 43. 

National Human Rights Consultation - Materials and Resources


 

1.  Engaging in the Debate Report

The Human Rights Law Resource Centre, in conjunction with leading Australian law firm Allens Arthur Robinson, has produced a comprehensive report to enable individuals and organisations to participate in the National Human Rights Consultation in an informed and evidence-based way.  The report is not intended to be a position paper or submission, but rather to provide information, evidence and background material.

The report, entitled The National Human Rights Consultation: Engaging in the Debate [PDF] [Word], begins by outlining the arguments for and against a Federal Charter of Rights (or Human Rights Act). The report then addresses the central issues in the debate by discussing three broad questions:

  • Is a Federal Charter necessary?

This includes a discussion as to the current state of human rights, and the legal protection of rights and freedom, in Australia.

  • What would a Federal Charter do?

This includes a discussion as to what rights might be protected, whether those protections should be subject to limitations, whose rights would be protected and who would have to comply with a Federal Charter.

  • How would a Federal Charter work?

This section considers the mechanics of a federal human rights law, and the principal issues that may arise in its drafting and implementation, including whether such a law would be part of the Constitution or an ordinary piece of legislation, the role of the courts, the impact on parliamentary sovereignty and democracy, potential constitutional issues, and what remedies might be available for people whose rights have been breached. The section also looks at the existing models for human rights laws in Victoria, the ACT, the United Kingdom, New Zealand, Canada, South Africa and the United States of America.

 

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2. Case Studies: How a Human Rights Act can promote dignity and address disadvantage

Human rights belong to everyone.  The Human Rights Law Resource Centre has collated a set of case studies, Case Studies on How a Human Rights Act can Promote Dignity and Address Disadvantage, which show that human rights are not just for lawyers, celebrities and criminals; they are an important tool that can help create a more just society where everyone receives a fair go.

The case studies illustrate how human rights laws can be used to encourage common-sense policies and decisions that promote human dignity and addresses disadvantage.

 

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3. Fact sheets

Human Rights Law Resource Centre, 10 Myths and Misperceptions about a Human Rights Act for Australia.

Federation of Community Legal Centres, 10 Reasons Why we Need a Bill of Rights in Australia and FAQs (November 2007).

Victorian Equal Opportunity and Human Rights Commission, Civil and Political Rights Explained (2007).

 

3.1  Right-specific Fact Sheets

 

3.2  Thematic Fact Sheets

 

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4. Other Resources

4.1 Useful Reports

 

  • The HRLRC's Brief on National Consultation regarding Legal Recognition & Protection of Human Rightsconsiders:
    • the benefits of human rights protection (including assisting disadvantaged Australians and enhancing our international reputation);
    • the myths and misperceptions raised in opposition to human rights protection (including that a Charter is unnecessary, will be a lawyers' picnic or would undermine legitimate policy decisions);
    • and the conduct of the public consultation.

 

  • The UK Department for Constitutional Affairs, Review of the Implementation of the UK Human Rights Act (2006), evaluates the first five years of the UK HRA, concluding that it has had a significant and beneficial impact on policy design, public service delivery and consumer satisfaction.

 

  • The UK Joint Committee on Human Rights Report, A Bill of Rights for the UK? (2007) considers whether and how the protections afforded under the UK HRA could be strengthened, including through the entrenchment of economic, social and environmental rights.

 

 

  • A Memorandum of Advice from Brian Walters SC and Alistair Pound of Counsel considers whether and how a national Human Rights Act would impact on religious beliefs and freedoms.  The Advice considers, among other matters:
    • Would a federal charter of rights result in a transfer of political power to the courts?
    • What are the potential cultural impacts of a federal charter of rights?
    • What impact might a federal charter of rights have on freedom of religious speech and expression?
    • What impact might the recognition of a right to life in a federal charter of rights have on issues such as abortion and euthanasia?
    • What impact might the recognition of a right to equality and protection from discrimination in a federal charterof rights have on the ability of religious bodies to discriminate on the basis of religion?

 

4.2 Speeches

 

 

 

  • Mark Dreyfus QC, Labor Member for Isaacs, Adjournment Speech (page 93) to the House of Representatives on the Charter of Human Rights, 3 September 2008.

 

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More pages on the National Human Rights Consultation:


Case Studies: How a Human Rights Act can Promote Dignity and Address Disadvantage

Human rights belong to everyone.  The case studies on this page show that human rights are not just for lawyers, celebrities and criminals; they are an important tool that can help create a more just society where everyone receives a fair go.  The case studies illustrate how human rights laws can be used to encourage common-sense policies and decisions that promote human dignity and addresses disadvantage. To share your story of where human rights have made a positive difference, please contact Rachel Ball from the HRLRC at rachel.ball@hrlrc.org.au or on (03) 8636 4433.  Your privacy is respected and all stories will be de-identified.



1. Victoria

1.1  Child with Autism Gains Entitlement to Disability Assistance

A 13 year old boy with Asperger Syndrome was ineligible to receive disability support services because the Victorian Department of Human Services ('DHS') did not consider Asperger Syndrome and other Autism Spectrum Disorders to be a 'disability'.  The child's mother applied to VCAT for a review of the DHS decision and advocated for an inclusive and contextual interpretation of 'disability', in light of the rights contained in the Victorian Charter.

Before the application proceeded to hearing, the Victorian Government issued a media release advising that it had decided to acknowledge Autism Spectrum Disorders (including Asperger Syndrome) as a disability under the Act and thereby entitle Victorians with autism to disability assistance.  The Government committed to back this announcement by $2.75 million in additional funding.

The President of the Autistic Family Support Association commented that she did not think that the policy change would have occurred had the litigation not been initiated.     

Relevant Human Rights: The right to privacy, protection of families and children and equality before the law.

Source: HRLRC Bulletin, January 2009.

 

1.2  Appropriate Living Arrangements for Young People with Acquired Brain Injury

A rehabilitation centre operating as part of a public hospital was seeking to discharge several young people with acquired brain injuries because their two year contractual period had ended.  However, the only alternative care facilities available were aged care facilities, which would not provide the social environment, or support services (such as speech therapy), needed for the young people to continue their recovery.  A disability advocate raised the Charter with the rehabilitation centre, which agreed not to move the young people until it had considered its obligations under the Charter.

Relevant Human Rights:  Equality before the law, protection from torture and cruel, inhuman and degrading treatment, and the right to privacy.

Source: HRLRC Bulletin, December 2008.

 

1.3  Service Provider Considers the Rights of a Difficult Client

A Victorian welfare organisation experienced problems with a client who had been violent and threatening towards staff.  The initial response of the organisation was to exclude the client from the services provided and the premises.  A direct care worker objected to the exclusion of the client on the basis that while staff had a right to be safe at work, the client's rights should also be considered.  The care worker negotiated with management to allow the client to access some services and instituted a method for monitoring the client's behaviour to prevent safety risks to staff.

Relevant Human Rights: Equality before the law; the principle of proportionality.

Source: Victorian Council of Social Service, Using the Charter in Policy and Practice, (July 2008).

 

1.4  Pregnant Single Mother Avoids Eviction into Homelessness

A pregnant single mother with two children was living in community housing. She was given an eviction notice, which didn't provide any reasons for the eviction, or allow her to address the landlord's concerns. The Victorian Charter was used to negotiate with her landlord to prevent an eviction into homelessness, and reach an alternative agreement.

Relevant Human Rights: Right to privacy, protection of families and children.

Source: HRLRC Bulletin, June 2008.

 

1.5  Prisoner Gains Access to Justice

A prisoner initiated civil action against prison officers in relation to property that has been lost when he was transferred from one prison to another.  When seeking to arrange transportation from prison to the Court for the hearing, the prisoner was advised that the private prison operator was able to facilitate an escort to Court, but that it would be at a cost of $1,380 to the prisoner.  The prisoner had no means to pay the amount requested.

After successfully negotiations in which the prisoner's right to a fair trial was raised, the arbitration hearing was transferred to a closer court and the prisoner was escorted to the court at a significantly lower cost to the prisoner.

Relevant Human Rights: Right to a fair hearing.

Source: HRLRC Bulletin, November 2007.

 

1.6  Access to Health Care for Involuntary Mental Health Patient

An involuntary mental health patient was seeking access to medical treatment in relation to a liver condition.  Advocates for the patient considered that a lack of adequate medical services may raise human rights issues under the Victorian Charter.  The advocates raised the Charter arguments with hospital management and negotiated to arrange for a medical appointment for the inpatient.

Relevant Human Rights and Principles: Right to life, protection from cruel, inhuman or degrading treatment, right to privacy, right to security of person and right to humane treatment in detention.

Source: HRLRC Bulletin, December 2007.

 

1.7  Human Rights Inform Primary School Redevelopment

A medium-sized primary school in Victoria used human rights principles to inform its policies and processes around the re-design and development of the school building.  Input was sought from all relevant stakeholders, including students, parents and teachers.  For example, three different response forms were distributed to match the literacy levels of all students.  In addition, the needs of people with disabilities were given special consideration and a local Indigenous co-operative was consulted.

The Principal of the school has reported that: "[a] simple walk through of the new building gives the message that this is your school, your community and you own the space equally with all others who use it, it generates excitement, ownership and buy-in from all."  She also noted that the process had a positive effect on the students and broader school community through the development strong relationships and positive, supportive community cultures.

Relevant Human Rights: Right to education; children's rights; the rights of people with disabilities, principle of meaningful participation.

 

1.8  Young Man Allowed to Live with his Family

A 23 year old Iraqi refugee with a severe intellectual disability and autism was placed in unsuitable supported accommodation.  There were no Arabic speaking workers in the accommodation facility and the young man's ability to observe his religion (by, for example, eating Halal food) and contact his family were significantly limited.  After a visit home, it became apparent that he was frightened of another resident with whom he shared a room and was otherwise lonely, bored and unhappy.

The young man's advocate raised the Charter with the relevant public authority and he was not forcibly returned to the supported accommodation.  Instead he was allowed to reside in his family home, where he wished to be.

Relevant Human Rights: Protection of families and children; the right to culture, freedom of religion.

Source: Youth Affairs Council of Victoria.

 

1.9  Young Woman Gains Access to Disability Support Services

A 19 year old woman with cerebral palsy was left housebound and alone while the Government was acting particularly slowly in responding to her request for disability support services.  Her advocate noticed that her mental state was deteriorating as a result and wrote to the relevant Government department citing the women's right not to be treated in a cruel, inhuman or degrading way and her right to privacy.  The woman's advocate noted that a person's private life is affected when they are unable to participate in the community or access social, cultural and recreational activities.

Soon after the women's advocate contacted the Government department, the young woman was deemed eligible for support services and placed on the waiting list for case management.

Relevant Human Rights: protection from torture and cruel, inhuman or degrading treatment or punishment; right to privacy.

Source: Youth Affairs Council of Victoria.

 

1.10  Facilitating Access to Information

A disability rights service received complaints from a number of clients in relation to treatment plans (imposed under Victorian legislation when a person is found to be unfit to stand trial or not guilty of an offence because of mental impairment).  The clients felt that their treatment plans were not specific enough to allow them to understand what treatment they were receiving and why.

An advocate at the disability rights service raised Charter arguments with the relevant government authority and the authority has undertaken to improve the plans.

Relevant Human Rights: protection from torture and cruel, inhuman or degrading treatment or punishment; right not to be subjected to treatment without full, free and informed consent; right to privacy.

Source: Villamanta Disability Rights Legal Service

 

1.11  Including Human Rights in Local Government Planning

A local council released a draft copy of its four-year community plan that identifies community needs, priorities and strategies; and actions for new and improved community services, facilities and programs to be implemented by the council over the life of the plan.

A local community group expressed concern that nowhere did the draft plan refer to human rights or the council's obligations in relation to rights. The group recommended that council include explicit reference to rights and included particular reference to rights in relation to age, Indigenous identity and disability.

The council adopted most of the group's recommendations and as a result:

(a) undertook to review its decision-making processes;

(b) considered its obligation to ensure equality in the provision of, and access to council services and facilities;

(c) reviewed its code of conduct for staff and councillors; and

(d) considered how best to proactively promote consultation and feedback opportunities via a range of accessible means.

Relevant Human Rights: recognition and equality before the law; freedom of expression; taking part in public life; cultural rights.

Source: Victorian Equal Opportunity and Human Rights Commission.  'Your Rights, Your Stories' at http://www.humanrightscommission.vic.gov.au/human%20rights/your%20rights%20your%20stories/

 

1.12  Protecting the Right to Vote of People with Disability

A local disability provider implemented a new system in which its routine assessment of client needs included explicit consideration of their human rights through the use of a mandatory Human Rights Checklist. Any issues identified by staff were then referred to a Human Rights Committee for review, with the Committee making recommendations to the person's case manager.

Through the implementation of these new processes, the services became aware of a number of people with intellectual disabilities whose ability to exercise their right to vote had been restricted. The service took immediate steps to support them to make individual decisions about how they would vote, even though this was often against the wishes of their carers.

Relevant Human Rights: recognition and equality before the law; freedom of expression; taking part in public life; freedom of thought, conscience, religion and belief.

Source: Victorian Council of Social Service, Using the Charter in Policy and Practice, (July 2008) reported in Victorian Equal Opportunity and Human Rights Commission.  'Your Rights, Your Stories' at http://www.humanrightscommission.vic.gov.au/human%20rights/your%20rights%20your%20stories/.

 

1.13  Promoting Flexible Decision-Making  for the Elderly and Vulnerable

A woman who was the sole carer for her elderly parents (one of whom had recently suffered a stroke and the other had dementia) was issued with a notice from the local council that the accommodation she had arranged for her parents was contrary to planning approvals.  The woman's legal representative wrote to the council asking them to consider the right to privacy and family life and the council granted the woman extra time to make alternative arrangements for her parents.

Relevant Human Rights: right to privacy and protection of families.

Source: Darebin Community Legal Centre.

 

1.14  Recognising Indigenous Cultural Rights

An Aboriginal community services organisation noticed in its dealings with state and local government partners that, since the introduction of the Charter, there has been a shift in thinking around cultural diversity and the inclusion of Aboriginal people in programs.  One senior staff member who has been working with the Government on a project aimed at developing the health, development, learning and wellbeing of Indigenous children commented that 'the Victorian Charter seems to have influenced the way Government works with Aboriginal people.  They are certainly aware of cultural rights'.

Relevant Human Rights: the rights of Aboriginal persons to enjoy their identity and culture.

Source: Victorian Aboriginal Community Services Association Ltd (VACSAL)

 

1.15  Provision of Medical Services to Elderly Persons

A middle aged woman with an acquired brain injury required urgent therapy to treat severe contractures of her left hand.  The contractures cause considerable pain and suffering and are resulting in deterioration of her hand.  Although the woman had been waiting for therapy for over 3 years, she was not considered a priority because she is aged over 50.  Without appropriate medical services, it was likely that radical surgery would be required, possibly involving amputation of the hand.

After raising Charter arguments advocates were able to receive one-off funding for the urgently needed medical treatment.

Relevant Human Rights: right to non-discrimination; protection from cruel, inhuman or degrading treatment; right to privacy; right to security of person.

Source: HRLRC Bulletin (December 2007)

 

1.16  Local Government Recognises Special Needs and Circumstances

Business vendors in a regional CBD were calling on a local council to introduce a 'move on and stay away' by-law that would apply to those displaying antisocial behaviour.  The council rejected the move on human rights grounds, saying that such a law would disproportionately affect already marginalised groups such as homeless people and Indigenous groups and that it would restrict people's right to be in a public place.

Relevant Human Rights: equality before the law; right to privacy; freedom of movement.

Source: Eugene Duffy, "Move on Powers Rejected" Bendigo Advertiser, 22 August 2008.

 

1.17  Prisoner Allowed to Attend Step-father's Funeral

A prisoner in his mid-twenties wished to attend the funeral of his step-father.  Prison authorities denied his request on the basis that the step-father never wrote or visited the prisoner.  In fact, the prisoner and his step-father were close, but were prevented from making regular contact for various reasons beyond their control (the prisoner was illiterate so couldn't write, his step-father was disabled and couldn't visit).

The prisoner's advocate provided the prison with additional information about the relationship between the prisoner and his step-father and he also raised the prison authority's Charter obligations in respect of the protection of families. The prisoner was allowed to attend the funeral and the advocate has stated that he believes it was the Charter arguments that compelled the prison authorities to change their mind in this case.

After the funeral, the mother and sister of the prisoner told the prisoner's advocate that their son and brother had been a great support and played an important role in keeping the family together during the funeral.

Relevant Human Rights: protection of families.

Source: Springvale Monash Legal Service.

 

1.18  Melbourne Custody Centre Guidelines Updated to Improve Protection of Human Rights

The Melbourne Custody Centre ('MCC') is run by GEO Group Australia ('GEO') on behalf of Victoria Police.  In 2007, there was an incident of excessive use of force by staff against a detainee, in breach of the detainee's human rights.  Following the incident, Victoria Police held workshops with GEO staff and facilitated risk assessment workshops to examine all aspects of the MCC's operation.  The risk assessment led to modifications to guidelines and staff training aimed to better protect detainee's human rights.  The modifications included: changes to search procedures (to ensure a person is never fully naked during the search); changes to reception processes that involve collecting personal information to enhance privacy; and increased responsiveness to detainees' needs associated with religious beliefs.

Relevant Human Rights: Right to humane treatment when deprived of liberty; right to protection from torture and cruel, inhuman or degrading treatment or punishment, right to privacy, freedom of religion.

Source: Victorian Equal Opportunity & Human Rights Commission, Emerging Change: The 2008 Report on the Operation of the Charter of Human Rights and Responsibilities (2009).

 

1.19  Enhanced Participation in Decision Making for Residents of Accommodation for People with a Disability

A Government Department has reported that its increased compliance with its Person Centred Active Support ('PCAS') model has been motivated by a desire to promote the human rights of people with disability.  PCAS is a right-based model for the delivery of disability services and requires that staff work with individuals to respond to their rights and aspirations, rather than focusing on their needs.  The emphasis is on increasing residents' participation in decision making, and resulted in higher satisfaction levels for both residents and staff, improved relationships between residents and staff, and increased resident involvement in activities of choice.

Relevant Human Rights: Right to protection from torture and cruel, inhuman or degrading treatment or punishment; right to privacy; right to equality.

Source: Victorian Equal Opportunity & Human Rights Commission, Emerging Change: The 2008 Report on the Operation of the Charter of Human Rights and Responsibilities (2009).

 

1.20  City Council Promotes Message that Human Rights are Important

Under its Social Justice Charter 2007 and Hume Citizens' Bill of Rights, the Hume City Council has provided funding for a number of projects targeted at advancing the human rights of its residents.  For example, the Council provided funding for human rights workshops to be held in Neighbourhood Houses throughout the Council's area.  The project, called Stand Up and Be Counted, aims to gather and publish a collection of person human rights stories from recent arrivals and established residents.

Relevant Human Rights: All human rights.

Source: Victorian Equal Opportunity & Human Rights Commission, Emerging Change: The 2008 Report on the Operation of the Charter of Human Rights and Responsibilities (2009).

1.21  Corrections Victoria Amends Regulations to Promote Human Rights Compliance

In February 2009, the Human Rights Law Resource Centre made a submission regarding proposed Corrections Regulations in Victoria.

The submission addressed aspects of the Proposed Regulations that the Centre considers do not comply with established international and comparative jurisprudence relating to the treatment of prisoners, including in relation to the use of force, the use of restraints, classification and placement of prisoners, visitation rights and strip searching.

On 20 April 2009, the Centre was informed by the Department of Justice that provisions of the Proposed Regulations had been amended in response to the Centre's recommendations and to ensure compliance with the Victorian Charter.  Consequential changes include:

  • requirements that restraints be applied for no longer than is necessary and the use of any restraint must be reported to the Prison Manager;
  • mandatory consideration of a prisoner's medical and psychiatric condition when deciding placement or making a separation order;
  • the introduction of a 'checklist' to promote the right to a fair hearing in prison disciplinary proceedings;
  • amendments to improve prisoner access to visitors and correspondence; and
  • a requirement that an officer 'believe on reasonable grounds' that a strip search is necessary in order for that search to be lawful.

Relevant Human Rights: Right to protection from torture and cruel, inhuman or degrading treatment or punishment; right to privacy; right to humane treatment in detention; right to equality; right to a fair hearing; right to liberty and security of person.

Source: HRLRC Bulletin (May 2009)

1.22  Victorian Charter Used to Develop Sector Wide Policy to Support Best Practive by Youth Workers

In 2007, YACVic, the peak for the youth sector in Victoria, developed a code of ethical for persons working in the youth sector. The Code was developed by reference to human rights principles, including the Victorian Charter, and enshrines such rights as the rights to equality, recognition of Indigenous peoples, privacy, and protection of families and young people.

Since 2007, the Code has been used in a variety of ways to protect and promote the rights of young people. For example, the City of Casey (which has one of Australia's largest populations of people aged 10-25 years) has used the Code to revise its policies and practices in an attempt to ensure that they enhance the human rights of young people. The City of Casey has also used the Code to develop a tool to audit its youth services. This tool has enabled the City of Casey to identify best practice indicators and allocate best practice responsibilities to its staff. As well, the City of Casey has published its own, simplified version of the Code, which distills the underpinning human rights values in an accessible format. Amongst other initiatives, the City of Casey has committed itself to auditing the Code every 2 years, with a view to ensuring that every effort is made to respect, protect and fulfil the rights of young people.

Relevant Human Rights:  Right to equality; recognition of Indigenous peoples; right to privacy; and protection of families and young people.

Source: YACVic, PILCH

1.23  Access to Health Care for Asylum Seeker

On the same day as receiving advocacy training on how to use the Victorian Charter of Rights, a community nurse who had been trying to assist an asylum seeker with pressing health needs to gain health care raised the Charter with a hospital.  The hospital had indicated that they would refuse health services if the patient could not pay.  As an asylum seeker, the patient had no access to Medicare.  On questioning the hospital as to whether refusing access in this way ‘contravened the Charter’, the relevant staff member said she did not know.  The community nurse then sent an email to senior staff at the hospital raising Charter rights and obligations.  Subsequently, a directive was sent to hospital staff advising all staff to implement a DHS directive stating all asylum seekers and refugees were to receive free services.  Although this directive was in place prior to the Charter, the Charter did serve as a catalyst to ensure the directive was implemented.

Relevant Human Rights:  The right to life; protection from cruel, inhuman or degrading treatment; right to non-discrimination, right to security of person.

Source: West Heidelberg Community Legal Service

1.24  Access to Health Care and the Right to Humane Treatment in Detention

The Centre recently acted for a Victorian prisoner regarding access to adequate health care and the right to be treated with dignity in prison.  The prisoner was subject to an invasive oral cavity search as a precondition to receiving daily medication taken in tablet form.  The medication was prescribed for a chronic and life threatening health condition and does not have any divertable value so far as concerns illicit drug use in prison.  The prisoner considered the oral cavity searches to be unnecessary, invasive, demeaning and degrading.  Further, he had no record of drug use in prison.

On behalf of the prisoner, the Centre wrote to the prison manager recalling that, pursuant to s 38(1) of the Victorian Charter of Human Rights, Corrections Victoria is legally required to act compatibly with human rights and to give real, genuine and proportionate consideration to human rights in all decision-making processes.  This requires that policy be formulated having proper regard to human rights and that practice be compatible with such rights.  The Centre also raised s 22 of the Charter, which provides that all persons deprived of liberty be treated with dignity and respect.  It is well established that this means that prisoners must not be subject to any interferences with rights other than those which are strictly necessary as a consequence of the deprivation of liberty itself.  Section 7(2) of the Charter, as recently interpreted by Warren CJ of the Supreme Court of Victoria, further requires that any limitations on rights be demonstrably justified by the state, supported by cogent and compelling evidence as to their necessity and proportionality, and be compatible with basic notions of dignity and freedom.

Following discussions and negotiations, prison management agreed to revise its policy and practice pertaining to oral cavity searches.  The prisoner is no longer subject to invasive oral cavity searches as a precondition to receiving medication.  Further, the prison has agreed to erect screens to protect the privacy of prisoners receiving such medication.

Relevant Human Rights: right to humane treatment in detention; right to privacy.

Source: HRLRC Bulletin (January 2010).

1.25  Threatened Eviction of Father and 3 Year Old Son from Public Housing Breaches Human Rights

A Somali refugee and his three year old son who lived in a home owned by the Director of Housing were threatened with eviction.  The home was leased to the man’s late mother in 1998 by the Victorian Department of Housing and he continued to occupy the premises after his mother died from cancer.  The Director of Housing applied for a possession order under the Residential Tenancies Act.  The case was brought before the Victorian Civil and Administrative Tribunal which found the Director’s decision to seek eviction without any justification or evidence was in breach of the right to family and home under s 13(a) of the Charter.  The Director’s application for a possession order was dismissed.  This case will affect 70,000 public housing applicants in Victoria.

Relevant Human Rights: right to family, right to privacy and right to home

Source: Director of Housing v Sudi [2010] VCAT 328

1.26  Making the Bushfire Royal Commission Accessible to Victims and their Familes

Members of the Victorian Bar provided advice to Bushfire Legal Help (which provides free legal assistance and information to victims of the 2009 Black Saturday bushfires) regarding the impact of the Charter on the Commission’s obligation to promote the participation of individuals in its inquiry.

Based on the advice, Bushfire Legal Help urged the Commission, in accordance with Charter principles, to promote effective participation in the inquiry by affected individuals and to adopt a broad approach to applications for permission to appear before the Commission (the most direct way of participating).

The right to life in the Charter was used to support the argument that the Commission had a legal duty to facilitate appropriate involvement by next of kin and families of those who died and those whose lives were endangered by the fires.

Following the advocacy, the Commission made improvements to its communications about public participation and adopted a practice of hearing oral evidence daily from a person affected by the fires.  While the Commission refused permission to appear to a number of individuals and groups, it granted limited permission to appear to fire victims involved in a class action arising out of the fires.

Relevant Human Rights: right to life

Source: Bushfire Legal Help & the Federation of Community Legal Centres (Victoria) Inc

1.27 Victoria’s Mothers and Children Policy Program reform

Corrections Victoria’s Mothers and Children Policy Program operates to support family ties to assist successful reintegration once women are released from prison. The Charter was influential in a two-year transformation of the organisation’s program, policies, procedures and regulations relating to correctional services.  The Mother and Children Program was revised to consider Charter principles in the assessment of applications for children to participate in the program, to provide greater protection of children from safety or security risks and to keep information confidential during the application process.  The Department of Justice amended policy as one of the initiatives citing the Charter’s influence on policy and service.

Relevant Human Rights: Right to protection of families and children and the right to privacy and reputation

Source: Victorian Equal Opportunity and Human Rights Commission, 2009 report on the operation of the Charter of Human Rights and Responsibilities

 

1.28 Department of Sustainability and Environment reforms policy

The Department of Sustainability and Environment (DSE) revised its rules and guidelines taking human rights into account by establishing a Diversity (Inclusion) Action Plan 2009-2012 to provide equal access by the public to DSE employment and service.  The Charter was citied as influential in reforms including protecting the rights of people with a disability, Indigenous Australians, women, people from culturally and linguistically diverse backgrounds and young people.  Charter principles now guide the department in the implementation and delivery of natural resource management.

Relevant Human Rights: Cultural rights, right to equality and non-discrimination

Source: Victorian Equal Opportunity and Human Rights Commission, 2009 report on the operation of the Charter of Human Rights and Responsibilities

1.29 Woman with Disability Provided with an Access Ramp

A woman with a disability was unable to leave her house because her local authority refused to provide a ramp on the grounds of cost and that it was beyond departmental responsibilities.  The woman’s occupational therapist advocated with the department on behalf of the woman, invoking the right to freedom of movement (s 12 of the Victorian Charter of Rights), the right to take part in public life (s 18), the right to protection of families and children (s 17) and protection against inhuman and degrading treatment (s 10).  As a result of hearing the Charter arguments, the department reconsidered its position, providing the woman with an access ramp.

Relevant Human Rights: Freedom of movement; right to take part in public life; right to protection of families; and protection from inhuman and degrading treatment

Source: West Heidelberg Community Legal Service Inc (Sept 2010)

 

1.30 Health Inspection Granted to Woman’s Family

A woman, her partner and baby suffered from asthma caused by poor housing conditions.  After one-on-one training on the Charter, a staff member of the West Heidelberg Community Legal Service used the Charter in a letter to the Office of Housing to help the woman obtain a health inspection prior to a transfer to a new house as it was suspected the new house might create further health concerns for the family.  The staff member was successful in getting Office of Housing to conduct a health inspection of the house and cover related costs for the inspection.

Relevant Human Rights: Right to life; protection of family and children

Source: West Heidelberg Community Legal Service Inc (Sept 2010)

 

1.31 Refugee Family Transferred to Safe, Secure and Adequate Housing

An African woman and her children fled to Kenya following civil war in her home country.  After a series of brutal attacks she was found to have a ‘genuine fear of persecution’ and was settled in Australia.  She had been applying for a transfer after being re-traumatised by the fear and lack of safety in her allotted public housing. The Office of Housing was unresponsive despite representations that had been made on the woman’s behalf.  The legal service and her counsellor used the Charter to argue that she had rights to liberty and security (s 21) and a right to protection of children and family (s 17).  After much discussion around her human rights, the Office of Housing finally agreed to her transfer.

Relevant Human Rights: Right to liberty and security; protection of families and children

Source: West Heidelberg Community Legal Service Inc (Sept 2010)

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2. ACT

 2.1 Privacy for a Vulnerable Female

A vulnerable female client who was being intimidated by a neighbour sought permission from her landlord, a public housing authority, to erect a fence around her rented property. The submission to the public housing authority relied on, amongst other things, the client's right to privacy. Permission to erect the fence was granted.

Relevant Human Rights: right to privacy.

Source: ACT Welfare Rights and Legal Centre

 

2.2 Family Allowed to Live Together

Following the death of her mother, a client found that she and her children were not entitled to remain in her mother's public housing property, as the lease had been in her mother's name. The children had always lived in the house and had close contacts with the local community especially their school and nearby friends. The mother was in contact with care and protection services and there was a risk the children would be taken from her care if she did not have a home for them. In submissions to the public housing authority the right to protection of family life was raised. The client was given a lease over the property.

Relevant Human Rights: protection of family life.

Source: ACT Welfare Rights and Legal Centre.

 

2.3 Flexible Housing Policy Protects Family Life

A client was homeless and temporarily living with one of her children in a caravan without electricity in NSW. The other child was living with her grandmother in the ACT in order to attend school. The client was not eligible for priority housing as she had outstanding debts to the public housing authority from a previous tenancy. The client's advocates invoked the right to protection of family life to advocate for flexibility in applying the allocation rules. The client was housed as a priority candidate prior to arranging repayments of debts.

Relevant Human Rights: Protection of family life

Source: ACT Welfare Rights and Legal Centre.

 

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3. United Kingdom

Most of these UK examples are taken from the British Institute of Human Rights' publication, The Human Rights Act - Changing Lives.  This publication is available at: http://www.bihr.org.uk/sites/default/files/BIHR%20Changing%20Lives%20FINAL.pdf.

 

3.1 Staff refuse to clean up a man's bodily waste

A man detained in a maximum security mental health hospital was placed in seclusion where he repeatedly soiled himself. Staff declined to clean up the faeces and urine or to move the man to another room, claiming that he would simply make the same mess again, and any intervention was therefore pointless. The man's advocate, having attended a BIHR training session, invoked human rights arguments to challenge this practice. He argued that this treatment breached the man's right not to be treated in an inhuman and degrading way, and his right to respect for private life. These arguments were successful and the next time he soiled himself, the man was cleaned and moved to a new room.

Source: BIHR, The Human Rights Act - Changing Lives, p.6.

 

3.2 Disabled man denied support to attend gay pub

A physical disabilities team at a local authority had a policy of providing support to service users who wanted to participate in social activities. A gay man asked if a support worker could accompany him to a gay pub. His request was denied even though other heterosexual service users were regularly supported to attend pubs and clubs of their choice. During a BIHR training session, the man's advocate realised that the man could invoke his right to respect for private life and his right not to be discriminated against on grounds of sexual orientation to challenge this decision.

Source: BIHR, The Human Rights Act - Changing Lives, p.9.

 

3.3 Securing accommodation for domestic violence victims

A social worker from a domestic violence team at a local authority realised during a BIHR training session that human rights language could be used to secure new accommodation for a woman and her children at risk of serious harm from a violent ex-partner. Previously, when she had approached the housing department seeking emergency accommodation for the family, she had been told there was nothing available. During the training session she explained her view that the authority had overriding positive obligations to protect the right of the woman and her children not to be treated in an inhuman and degrading way and, given the extreme risk in this case, their right to life.

Source: BIHR, The Human Rights Act - Changing Lives, p.11.

 

3.4 Older couple split up by local authority after 65 years of marriage

A husband and wife had lived together for over 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. They were separated after he fell ill and was moved into a residential care home. She asked to come with him but was told by the local authority that she did not fi t the criteria. Speaking to the media, she said 'We have never been separated in all our years and for it to happen now, when we need each other so much, is so upsetting. I am lost without him - we were a partnership'. A public campaign launched by the family, supported by the media and various human rights experts and older people's organisations, argued that the local authority had breached the couple's right to respect for family life (Article 8). The authority agreed to reverse its decision and offered the wife a subsidised place so that she could join her husband in the care home.

Source: BIHR, The Human Rights Act - Changing Lives, p.14.

 

3.5 Domestic Violence Survivor uses Human Rights Act to Keep her Children and Access Safe Accommodation

A female victim of domestic violence moved multiple times with her children to avoid being discovered by an abusive husband who was attempting to track the family down.  When the family arrived in London they were denied housing after social workers determined that the woman was an unfit parent for intentionally placing her children into homelessness.  The woman challenged the claim, arguing for her right to respect for family life under the Human Rights Act.  Social services considered the woman’s rights and the importance of taking actions that are necessary and proportionate in regard to her children and, as a result, the family remained together and the social service department offered to provide a deposit for any secure private rented accommodation.

Relevant Human Rights: right to respect for family life

Source: BIHR, London Irish Women’s Centre (February 2010)

3.6 Human Rights Act used to Enable Patient with Mental Illness to Get Married

A long-term resident mental health patient’s capacity to consent to marriage was being considered by staff at the hospital where he was committed.  The staff identified and considered human rights concerns protected under the Human Rights Act including the man’s right to respect for private and family life under art 8 and his right to marry and found a family under art 12.  Using the framework of ensuring people can access their rights and only limiting these human rights when necessary and proportionate, staff agreed that it was in the man's best interests to support him to marry.

Relevant Human Rights: Right to private and family life and right to marry

Source: BIHR (February 2010)

 

Overview of the Victorian Charter

The Charter of Human Rights and Responsibilities Act 2006 (Vic) entered into full force on 1 January 2008.  The Charter enshrines a body of civil and political rights derived from the International Covenant on Civil and Political Rights.

These rights include:

  • right to equality before the law;
  • right to life;
  • right to protection from torture and cruel, inhuman or degrading treatment or punishment;
  • freedom from forced work;
  • freedom of movement;
  • right to privacy and protection of reputation;
  • freedom of thought, conscience religion and belief;
  • freedom of assembly;
  • right to peaceful assembly and freedom of association;
  • right to protection of families and children;
  • right to take part in public life;
  • cultural rights;
  • property rights;
  • right to liberty and security of person;
  • right to humane treatment when deprived of liberty;
  • right to a fair hearing;
  • certain rights in criminal proceedings;
  • right not to be punished more than once; and
  • protection from retrospective laws.

The Charter establishes a ‘dialogue model’ of human rights protection which seeks to ensure that human rights are taken into account when developing, interpreting and applying Victorian law and policy without displacing current constitutional arrangements.  The dialogue between the various arms of government — namely, the legislature, the executive (which includes ‘public authorities’) and the courts — is facilitated through a number of mechanisms.

First, prior to introduction to parliament, bills must be assessed for the purpose of consistency with the human rights contained within the Charter, and a Statement of Compatibility tabled with the Bill when it is introduced to Parliament.

Second, all legislation, including subordinate legislation, introduced to Parliament, must be considered by the Scrutiny of Acts and Regulations Committee for the purpose of reporting as to whether the legislation is incompatible with human rights.

Third, public authorities must act compatibly with human rights and also give proper consideration to human rights in any decision-making process.

Fourth, so far as possible, courts and tribunals must interpret and apply legislation consistently with human rights.

Fifth, the Supreme Court has the power to declare that a law cannot be interpreted and applied consistently with human rights and to issue a Declaration of Inconsistent Interpretation.  The Government must respond to such a Declaration within six months.

Finally, the Victorian Equal Opportunity and Human Rights Commission has responsibility for monitoring and reporting on the implementation and operation of the Charter.


HRLRC Guide to the Victorian Charter of Human Rights and Responsibilities

The Human Rights Law Resource Centre has produced a comprehensive Guide to the Victorian Charter of Human Rights and Responsibilities (current as at 20 July 2007).

The Guide contains the following sections:

  1. Overview of Charter
  2. Interpreting and Applying the Charter
  3. Substantive Rights and Limitations
  4. Scrutiny of Legislation
  5. Override Declarations
  6. Statutory Interpretation
  7. Public Authorities
  8. Remedies
  9. Victorian Equal Opportunity and Human Rights Commission
  10. Review of the Charter

The Guide constitutes Chapter 5 of the Centre's HRLRC Manual (October 2006).


National Human Rights Consultation - What You Can Do



 

1.  Make a written submission

Written submissions to the National Human Rights Consultation are due by 15 June 2009 and should address one or all of the following questions:

  • Which human rights (including corresponding responsibilities) should be protected and promoted?
  • Are these human rights currently sufficiently protected and promoted?
  • How could Australia better protect and promote human rights?

To assist organisations and individuals to make submissions, the HRLRC has developed a series of Submission Toolkits.  You can also find further information on the Materials and Resources page.

For further information about making a submission, see www.humanrightsconsultation.gov.au.

 

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2. Attend a workshop or roundtable

2.1 HRLRC Workshops

The HRLRC is conducting a number of workshops that address the relationship between human rights and particular thematic areas.   The workshops also include Submission Toolkits that are designed to assist organisations and individuals to:

  • prepare a submission to the National Human Rights Consultation; and
  • conduct consumer forums with clients to empower them to also write a submission.

The details of these workshops and materials are available under Workshops and Submission Toolkits.

2.2 Consultation Committee Roundtables

The National Human Rights Consultation Committee will be visiting places throughout regional and remote Australia as well as major towns and cities during the first half of 2009.

Locations and dates of the Committee's Comunity Roundtables are available at www.humanrightsconsultation.gov.au/www/nhrcc/community.nsf/calendar.

 

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3.  Join the Australian Human Rights Group

The Australian Human Rights Group (AHRG) is a network of organisations and individuals committed to enhancing our legislative protection of human rights.  The AHRG's core aims and beliefs are:

  • Australia needs better legislative protection of human rights.
  • The AHRG aims to enable the community to share their views on how best to protect human rights in Australian law.
  • The Australian Parliament should pass a comprehensive Human Rights Act.

For further information about the AHRG, see www.humanrightsact.com.au/ahrg/.

 

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4.  Join the campaign email list

Join the Human Rights Act campaign email list to keep informed on developments and get access to the Campaign wiki.

Email majordomo@explode.unsw.edu.au with the subject line blank and only 'subscribe charter-campaign' in the text of the email.

 

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5.  Make a donation to the Human Rights Law Resource Centre

The Human Rights Law Resource Centre is committed to providing leadership on, and contributing to the development of, a national Human Rights Act.

The work of the Centre includes preparing fact sheets, comparative and international research, media monitoring and commentary, preparing template submissions, hosting community forums and workshops, train-the-trainer programs, community sector coordination and human rights capacity building, and liaison with the business community, professional associations and other key stakeholders.

The Centre has been endorsed by the Australian Taxation Office as a deductible gift recipient.  Donations of $2 or more are fully tax deductible.

Make a donation online here.

 

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More pages on the National Human Rights Consultation: