Transcript An Introduction to the Human Rights Act

ACT Public Service Young
Professionals Network
CIT, 30 April 2010
Introduction to ACT Human
Rights Act 2004
Dr Helen Watchirs OAM
Human Rights & Discrimination
Commissioner
ACT Human Rights Commission
The Human Rights Commission
•Vision: working towards an ACT
community where rights are respected &
promoted, responsibilities are understood,
& access to quality services is protected
• established 1 November 2006 under
Human Rights Commission Act 2005
• 3 Commissioners: Human Rights &
Discrimination Commissioner; Health &
Disability Services Commissioner (Mary
Durkin); Children & Young People
Commissioner (Alasdair Roy)
• new website www.hrc.act.gov.au
HR Act implementation provisions
• International Covenant on Civil & Political Rights (ICCPR),
not Economic, Social & Cultural Rights (ICESCR).
•s.40B unlawful for a public authority (+ right of action in SC)
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to
a relevant human right.
• s.37 A-G’s compatibility statement - all Government Bills
• s.38 LA Standing Committee Terms of Reference– all Bills
• s.32 ACT Supreme Court may issue a declaration of
incompatibility (nil in ACT, one in Victoria) - parliament
has final say on validity of legislation.
• s.30 Interpretative clause - ‘so far as it is possible to do so
consistently with it s purpose, a Territory law must be
interpreted in a way that is compatible with human rights’.
HRC Human Rights Functions
• S.36 intervention power of HR Commissioner & stronger
notification provisions of HR cases: Intervention Guidelines
• S.41 review of effect of territory laws on human rights, ie audit
power - focus on most vulnerable groups in detention:
Quamby 2005, adult Corrections 2007.
• Advise & report on systemic laws, policies & issues – eg bikie
gang laws and anti-terrorism legislation
• Agency Annual Reports on HR measures summarised in
HRC’s submission to one and five years Review of HR Act
[poor in 2006 to improved in 2009]
• Psychiatric Services Unit 2008 Services Review under HR
Commission Act by Health Services Commissioner, using a
human rights framework.
• 2009 community & ACT public service online surveys positive
Civil & Political Rights (ICCPR)
• Life
• Recognition & equality before
law & non-discrimination
• Torture, cruel, inhuman or
degrading treatment
• Family & children
• Privacy
• Freedom of movement
• Freedom of thought,
conscience, religion & belief
• Freedom of expression
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Rights of minorities
Association & assembly
Take part in public life
Liberty & security
Humane treatment in detention
Criminal process rights
Fair trial
Freedom from force work
No double jeopardy or
retrospective criminal laws
• Compensation for wrongful
conviction
Building A Human Rights Culture
• Preamble of HR Act: ‘human rights are necessary
for individuals to live lives of dignity and value’
• Cabinet Sub administrative requirement: HR impact
• litigation in courts not full success – more important
impact on government & community
• comprehensively integrating into design,
implementation, evaluation of programs and policies
– eg Guidelines, checklists
• mainstreamed in development & interpretation of
policy, legislation & services
• include in decision templates, eg HRC
discrimination complaints – right to equality
• challenge for service delivery, HR not charity model
eg supported accommodation
ACT Litigation
122 cases in nearly 6 years – 60% criminal cases, eg bail, delays, double jeopardy
& protection orders. Civil cases – adoption, defamation, mental health, tenancy
& discrimination
• Fearnside – 3 step test:
1. does the legislation enliven a human right? (eg right to fair trial does not
specify judge/jury – jury is common law)
2. if yes (Step 1), is the limit on the human rights reasonable under s.3?
3. if yes (Step 1) but no (Step 2), then consider and apply s.30 interpretative
provision.
• Morro, N & Ahadizad etc – compensation for unlawful detention
• Hakimi – Legal Aid Work Allocation Guidelines complaint choice of counsel
• Canberra Hospital mentally unwell man cannot consent to withdrawal of
treatment/food (cf Rossiter case in WA – legally competent)
• Raytheon – Race discrimination exemption interaction with HR Act
• Emelyn Jones - Discrimination Act same sex vilification on Canberra Times blog site
• Thomson v ACTPLA – review rights limited (fair trial and privacy)
Victorian cases Charter of Rights
& Responsibilities Act 2006
•Momcilovic (SCA) – Declaration Incompatibility for
reverse legal onus on drug possession/trafficking and
presumption of innocence
•Kracke v MHRB (VCAT) – broad interpretation of
administrative functions of Tribunals, and requirement
to review psychiatric orders every six months
•Re an application under the Major Crime
(Investigative Powers) Act 2004 (SC) – selfincrimination issues
•Metro West v Sudi (VCAT) – social housing
contractors are public authorities
2008/09Agency Annual Reports: HR
• Legislative & policy drafting for Cabinet Submissions – all agencies
• Equity & Diversity (‘E&D’), anti-discrimination &
harassment/bullying policies, eg CIT: Strategic Plan, cultural
awareness, disability access, workshops & training
•Poor example repeated: ‘ACTEW’s Human Rights Policy Statement
outlines the Corporation’s commitment to respecting and protecting
human rights and applies to all operations and functions. There were
no reports of matters or activities which contravened the Act during
the year.’ HR Policy not on website. [similar ACTPLA & ACTTAB]
•Good examples:
- DHCS: internal committee; Homelessness Charter 2008; Disability
ACT implementation of UNCRPD; HR Audit, Bimberi Youth Justice
Centre;
-DET: consult HRC, ATSI, training, develop legislation & policy
- DJACS: compatibility statement, executive workshops, ANU
project, Corrections MOU
- Health: training; induction; privacy medical records; Mental Act
Review
HRC submission on 5 year Review of HR Act
•Optional Protocol on Convention Against Torture: need to increase
HRC’s audit & inspection powers (s.56 Corrections Management Act
2007) - covers corrections, psychiatric, preventative detention under
anti-terrorism laws, disability homes, immigration, nursing homes etc;
•Non-derogable rights - no limits permissible, eg torture;
•Agree with ANU HR Act project: 30 recommendations in 5 year
research project
- include ESCR
- HRC deal with civil HR complaints (criminal cases sub judice);
- damages available (UK model); require reasons for legislative
Compatibility Statements
- cost capping in court;
- Human Rights Inter-Departmental Committee;
- Victoria bilateral work
- continuing regular 5 year reviews.
Federal HR Consultation Committee
• Brennan Committee 35,000 submissions (nearly 29,000 favour HR
Charter) - October 2009 Report;
•Federal Attorney-General announced formal response on 21 April
2010: Australia’s Human Rights Framework
- does not supports national HR Act (ordinary legislation, dialogue
model, not US model) with cause of legal action and damages (UK)
- legislate for Joint Parliamentary Committee to scrutinise HR
- legislate for compatibility statements to accompany Bills & Regns
- amend Cabinet & Legislation Handbooks to reflect changes
- review existing laws, policies & practices for HR compliance, eg
anti-terrorism
- review Public Service Code of Conduct and Values, & develop HR
Toolkit
- $12.4m HR education – AHRC, NGOs and public service
-consolidate Federal discrimination laws (race, sex, disability & age)
& harmonise State/Territory laws through SCAG
Proposed law
Attorney General prepares a
Compatibility Statement about whether
the proposed law is consistent with
human rights (s.37)
The proposed law is also
scrutinised by LA Standing
Committee on Legal Affairs
Human Rights issues raised by the
proposed law are reported to the
Legislative Assembly
Legislation is passed
with due consideration
to Human Rights,
including proportionality
test - reasonable in a
free and democratic
society (s.28)
Laws must, so far as possible, be
interpreted with consideration of
human rights (s.30)
Restrictions on
rights in
legislation
stands
Supreme Court may issue a Declaration of
Incompatibility which must be tabled before the
Legislative of Assembly (s.32)
Interpretation
consistent with
Human Rights isn’t
possible