Transcript Slide 1

Day 1 - Session 1: Laying the
Foundations (Overview of
Human Rights Law)
John Tobin
Faculty of Law, University of Melbourne
[email protected]
8344 7679
Objectives –
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Outline the human rights framework: what are
they and where can we find them?
Identify the basic principles of interpretation
Understand how to undertake human rights
research: a 6 step approach
Examine the opportunities for using human
rights in Australia especially Victoria
But first….some home truths and warnings
Handy Tips # 1 - Know your audience
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Consider the context in which seeking to use
HR
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Within the Australian legal, political or social
landscape the cupboard has been bare…
At the federal level - A legal island…
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Al Kateb v Godwin [2004] HCA 37
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It is not for courts, exercising federal jurisdiction, to
determine whether the course taken by Parliament is unjust
or contrary to basic human rights. The function of the
courts in this context is simply to determine whether the law
of the Parliament is within the powers conferred on it by the
Constitution:
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Justice McHugh para 74
NOTE: compare McHugh in Law week oration
A political fortress…
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Australia decides what happens in this country through the
laws and the parliaments of Australia. I mean in the end, we
are not told what to do by anybody. We make our own moral
judgments… Australia’s human rights reputation compared
with the rest of the world is quite magnificent. We’ve had our
blemishes and we’ve made our errors and I’m not saying
we’re perfect. But I’m not going to cop this country’s human
rights name being tarnished in the context of any domestic
political argument… Traditionally these matters are the
prerogative of states.
 Prime Minister John Howard 18 Feb 2000
A social controversy/enigma
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HR are not well understood/contentious
Media still reluctant to canvass local stories
by reference to HR stds
Social commentators tend to avoid, misuse or
disparage human rights
General public see INHR stds as being
foreign/alien and d/n understand Vic Charter
But… upon closer examination…
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Is there a need, opportunity,obligation to
make use of HR in litigation, policy
development and advocacy?
[Think of the toolbox analogy]
Be prepared to play with the new kid on
the block - …
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The Victorian Charter of Human Rights and
Responsibilities [Day 2]
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Actions of public authorities must be compatible with HR
[s.38]
All new legislation must be accompanied by Statement of
compatibility [s.28]
Interpretation of legislation compatible with HR [s.32]
SCrt declaration of inconsistent interpretation [s.36]
Add an additional ground of unlawfulness to existing
remedies [s.39]
…And respond to the judicial
invitation
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Vic Court of Appeal in medical records case
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‘the Supreme Court human rights jurisdiction is open for
business’
Justice Chris Maxwell, Public presentation 23 March 2006
See Bell J of the Vic Supreme Court in Tomasevic
and Ragg etc
Fed court in numerous decisions
Consider developments in rest of the world esp in
UK with adoption of Human Rights Act (difficult to
remain a legal island in a sea of globalisation)
Tip # 2 Know your obligations (on
either side of the fence)
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UN Basic Principles on Role of Lawyers
14. Lawyers, in protecting the rights of their
clients and in promoting the cause of justice,
shall seek to uphold human rights and
fundamental freedoms recognized by national
and international law and shall at all times act
freely and diligently in accordance with the
law and recognized standards and ethics of
the legal profession.
Thus be prepared to shift/push the
boundaries of the debate…
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Justice Breyer US SCourt in ‘A Conversation
between US Supreme Court Justices’ 3
International Journal of Constitutional Law
2005, 519 at 523
Tip # 3 Know your opportunities
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3 broad contexts
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Service delivery [see UK experience re public service]
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Consider Public Service Administration Act 2004 (‘public
officials should respect and promote the HR in the Charter by:
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Advocacy:
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Making decisions and providing advice consistent with HR; and
Actively implementing, promoting and supporting HR
Negotiations [see: British Institute HR The Human Rights Act
– Changing Lives – more than technical legal analysis]
policy development/ legislative analysis/submissions/ lobbying
- proactive)
Litigation – reactive (case work)
Opportunities for litigation…finding
the hook
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Domestic [see Day 2]
(a) Fed and Vic [pre and post Charter]
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Interpretation of legislation
Development of common law [special note]
Principle of legitimate expectation
Exercise of judicial discretion **
review of administrative decisions
(b) Vic [Post charter] add…
 Interpretative obligation
 Declaration of inconsistent
interpretation
 Ground of unlawfulness under
existing remedy
Opportunities for Litigation on the
international stage [Day 3]
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Committee complaint mechanisms
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HRC
CERD
CAT
Special rapporteurs
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Housing
Torture
Education etc
BUT before we can run we must learn to walk,
so…let’s consider the basics
Tip # 4: Know your limitations
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HR sees problems too narrowly
HR promises more than it can deliver
(expectation deficit)
HR is confrontational
HR is individualistic (‘me, me, me approach)
HR bureaucratic etc etc
Tip # 5: Know your stuff!!
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We need to walk before we can run… and be
able to answer the following 4 Qs:
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What are HR?
Where can we find them?
What do they mean?
How can we identify and implement human
rights in practice?
Q. 1 What are human rights? (In the eye
of the beholder)
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Answer is….it depends
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Consider:
Moral/political/social
Legal
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Domestic: common law/legislation/Constitution
Regional
IN
But to identify the core elements… let’s go
back in history…
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Think local:
 Eg: Magna Carta, US Bill of Rights and French Declaration
 Key features:
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Compromise and regulation of power [also contextual]
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Think global:
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Emerged post WWII [consider context again]
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Key features:
respect inherent value and dignity of individual [universal entitlement]
regulate the powerful (ie: State intervention) [accountability]
Not absolute (derogation and limitation clauses)
BUT add ensure empowerment of individuals (ie: provide health, FE,
housing, edu etc) [indivisibility] AND
Encourage social responsibility (ie: respect for others/non discrimination;
burden sharing) [co-operation]
Q. 2 Where do we find HR?
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Victoria
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Charter of Human Rights and Responsibilities
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See Part 2 ss 8-27 (only c and p rights)
See section 5 – other human rights recognised under any other
law: includes - INL; common law; Constitution
International
Universal Declaration of Human Rights 1948
International Covenant on Civil and Political Rights 1966
International Covenant on Eco Social and Cultural Rights
1966
Other HR instruments
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Convention on the Elimination of All forms of Racial
Discrimination 1965
Convention on the Elimination of All Forms of
Discrimination Against Women 1979
Convention Against Torture 1984
Convention on the Rights of the Child 1989
Convention for the Protection of Migrant Workers
and their Families 1990
Convention on the Rights of Persons with
Disabilities 2006
But wait there’s more…
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See:
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Office of the High Commissioner for Human
Rights
www.ohchr.org
Key features (INL model)
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Universal entitlements for all individuals
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All rights interdependent and indivisible
Accountability of State to secure
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Minimum standards (rock bottom of human existence)
Obligations to respect, protect and fulfill
c and p – immediate obligation
Eco and social – progressive subject to available resources
Effective participation critical to realisation
Holistic response required (multisectoral and
interdisciplinary)
Q. 3 How do we interpret human rights
standards?
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Sir Anthony Mason writes that ‘”Human Rights” is an
expression which is not merely evocative; it is also
amorphous in the sense that it conjures up a concept with
constantly moving boundaries.’ Alice Tay adds that ‘the
term has often been loosely understood and carelessly
grasped, leading to much wasteful confusion and
misunderstanding among both promisors and promisees as
well as between them’.
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How can we address these problems?
All roads lead to INL (but with a few
detours along the way)
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Section 32
(1) So far as is possible to do so consistently
with their purpose, all statutory provisions
must be interpreted in a way that is
compatible with human rights
(2) International law AND the judgments of
domestic, foreign and international courts and
tribunals relevant to a human right may be
considered in interpreting a statutory
provision
The devil is in the detail [see day 2] but…
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2 key considerations are relevant (in addition
to ordinary rules of domestic legislative
interpretation):
(a) international principles of interpretation;
and
(b) comparative case law
Let’s look at general principles first…
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IN treaties must be interpreted in accordance
with principles of public international law
Primary source for interpretation = Vienna
Convention on the Law of Treaties 1969
Australia is a party (13 June 1974)
Vienna Convention of Law of Treaties
Art 31 General Rule of Interpretation: ordinary
meaning
(1) A treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in
their context and in light of its object and purpose
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(2) Context includes: text, preamble, annexes, any agreement
between all of the parties and any instrument made by one or
more parties in connection with the conclusion of the treaty
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Note: Ordinary meaning does not necessarily require strict
grammatical approach and must take account all consequences
which reasonably flow from the text
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VCLT art 32 supplementary means of
interpretation
May make recourse to supplementary means of
interpretation incl preparatory work and c/t of conclusion
to:
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confirm meaning resulting from appl of art 31; OR
confirm meaning in light of art 31 is ambiguous or
obscure or leads to a result which is manifestly
absurd or unreasonable
(i) Purposive/Teleological approach
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VCLT places emphasis on text
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BUT must be construed in context and in light of
objects and purpose
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THUS allows teleological approach: ie: adopt
interpretation that seeks to realise objects and
purposes
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Practice = (1) determine object and purpose (2)
resolve ambiguity by importing ‘necessary’
substance to ensure realisation of objects and
purposes
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European Court of Human Rights
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Seek interpretation that is most
appropriate in order to realise the aim and
achieve the object of the treaty, not that
which would restrict to the greatest
possible degree the obligations
undertaken by the parties: Wemhoff v
Germany (1968) 1 EHRR 55 para 8
(ii) Effectiveness principle
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Fundamental principle of interpretation because:
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The object and purpose of the Convention as an
instrument for the protection of individual human beings
requires that its provisions be interpreted and applied so
as to make its safeguards practical and effective
 Loizidou v Turkey (Preliminary Objections) (1995) 20
EHRR 99 para 72
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THUS must consider realities of situation and adopt
interpretation which ensures that rights are not
‘theoretical or illusory’ but practical and effective
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Example: Airey v Ireland (1979) 2 EHRR 305
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right of access to courts incl right to legal aid in civil
proceedings where indispensable for effective access
THUS has potential to impose positive/active obligations
on States to ensure effective enjoyment of civil and
political rights
 … the mere fact that that an interpretation of the
Convention may extend into the sphere of social and
economic rights should not be a decisive factor against
such an interpretation; there is no watertight division
separating that sphere from the field covered by the
Convention: Airey v Ireland para 26
(iii) Living instruments
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HR treaties require a dynamic interpretation in
recognition of the fact that the standards by which
human rights are assessed are not static
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Euro Court of Human Rights
 ….a living instruments which … must be
interpreted in the light of present day conditions
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Tyrer v United Kingdom (1978) 2 EHRR 1 para 16
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Note: limits impact of travaux preparatoires because
of need to adopt dynamic interpretation
Interpretation: Case study 1
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Art 1 ICCPR
Each state undertakes to respect and ensure
to all individuals within its territory and subject
to its jurisdiction the rights recognised in the
Covenant…
Does this mean States have extraterritorial
obligations?
Interpretation: Case study 2
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Article 6 ICCPR
Every human being has the inherent right to
life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life
What does this mean?
See eg: Human Rights Committee General
Comment No 6
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The Committee has noted that the right to
life has been too often narrowly
interpreted. The expression inherent right to
life cannot be properly be understood in a
restrictive manner and the protection of the
right requires that States adopt positive
measures.
[respect, protect, fulfill]
Interpretation: Case study 3
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Article 24 Vic Charter
Person charged with a criminal offence or a
party to a civil proceeding has the right … to
a fair and public hearing.
???
And how do we find the comparative case
law?
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See handout: A Six Step Approach to
Effective HR Research
Recommend as a minimum subscription to:
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Human rights law resource Centre e bulletin
Doughty Street Chambers Human Rights Bulletin
Interights Commonwealth HR case law database
European Court of Human Rights Information
Notes