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)