Transcript ACT Human Rights Office

Living Well with HIV - a Human Rights Perspective
Dr Helen Watchirs
Human Rights & Discrimination Commissioner
ACT Ministerial Advisory Council on Sexual
Health, Hepatitis C & Related Diseases
Stakeholder Forum, CIT
6 August 2009
Human Rights & Discrimination
Commissioner Mandate
- Promote understanding, acceptance & compliance with
1. Human Rights Act 2004,
2. Human Rights Commission Act 2005 &
3. Discrimination Act 1991 – about 100 complaints pa
- Two other Commissioners handle:
1. health services (including privacy of medical records)
2. services for older people
3. disability services
4. services for children & young people
- No HR complaints function, but inspection power under Corrections
Management Act 2007
- S.41(1) review/report on effect of laws to Attorney-General, eg HR
Audits of Quamby (2005) & adult remand centres, BRC, STRC, PDC
(2007).
- S.36 seek leave to intervene in courts/tribunals
Discrimination Act
• Direct Discrimination: person treated unfavourably
because of attribute
• Indirect Discrimination: unreasonable condition or
requirement that is imposed which has, or is likely to have,
the effect of disadvantaging persons with an attribute
• the attribute to have been only one of any number of
reasons for unfavourable treatment
• Exceptions, eg other laws, voluntary bodies
• Exemption applications, eg Raytheon
• attribute can be known or presumed, eg HIV
• 3 elements: Unfavourable Treatment; Personal
Attribute; & Public Life
Necessary elements: discrimination
Protected attributes
• disability including future disability
• membership/non of an association of employers or employees
• profession, trade, occupation or calling, eg sex work
• race (including colour, descent, ethnic and national origin and
nationality)
• sex
• Sexuality and transsexuality
• status as a parent or carer, or relationship status
• association
Unfavourable treatment:
• Detriment: loss, harm or damage
• Sexual Harassment (offended, humiliated, intimidated)
• Vilification - ‘public act’ that ‘incites hatred towards, serious contempt for, or severe
ridicule of a person or group’: Emelyn-Jones v National Capital Press
(1.08.09) need for reform
• Victimisation (detriment)
Areas of public life
• Education
• Employment Agencies
• Employment including:
* Applicants
* Employees
* Commission agents
* Contract workers
* Partnerships
• Qualifying bodies
• Professional or Trade
organisations
• Unlawful advertising
• Access to Premises
• Goods, Services and
Facilities
• Accommodation
• Clubs
• Requests for
Information
Complaint handling
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Consider/investigate – all parties involved
Natural justice, and not bound by rules of evidence
Decision – issues raised under Act, without substance, or already been
adequately dealt with etc
Conciliation if appropriate;
Refer to Administrative Review Tribunal (from 1 February 2009)
Standard of proof: balance of probabilities - up to the complainant to support
allegations; and up to the respondent to support claim to an exception
Disability exceptions:
genuine occupational qualification
ability to perform the essential work of the job – X (HC)
unjustifiable hardship - nature of benefit or detriment & disability; financial
circumstances/expense
general - special measures
general - other laws
HIV & Human Rights
• International Guidelines HIV/AIDS & Human Rights &
UN Declaration of Commitment (2001)
• Obligations to respect, protect, fulfil HR
• UN HR treaties – mechanisms for accountability, eg
reporting, complaints
• Breaches can be by action/inaction of government
• Not just rhetoric: realise in laws, policies, programs at
local & national levels
• Informing & capacity building – know rights and
responsibilities: individuals & service
providers/government
• Public health & human rights complement/conflict
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Human Rights Act 2004
From 1 July 2004 laws to be interpreted consistently with human rights
From 1 January 2009 ‘public authorities’ are required to act and make
decisions consistently with human rights. Right of action to ACT Supreme
Court for violations – remedies, eg declarations, not compensation generally.
Section 10: ‘(1) No-one may be tortured or treated or punished in a cruel,
inhuman or degrading way.
(2) No-one may be subjected to medical or scientific experimentation
or treatment without his or her free consent.’
Section 19: ‘(1) Anyone deprived of liberty must be treated with humanity and
with respect for the inherent dignity of the human person.
(2) An accused person must be segregated from convicted people except
in exceptional circumstances’
(2) An accused person must be treated in a way that is appropriate for a
person who has not been convicted
Others – s.8 equality, s.11 family, s.12 privacy, s.14 religion/belief, s.15
association, s,16 expression and information, s.18 liberty and security of
person, .s.26 freedom form forced work, s. 28 minority cultures/languages
HIV criminal transmission offences
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Stigmatises alienated groups, eg MSM, sex workers, injecting drug users. Scapegoats
PLWHAs as potential criminals – harder to reach, fear confidentiality breaches, hide
behaviour, reluctant to access services
Focus on unpopular & vulnerable groups – false sense of security in general population
(us v them). Media hysteria fuelled
Coercion not very successful to control intimate, voluntary, private behaviour (eg sex,
drugs). Behaviour - complex motivations eg denial
Purpose of criminal law: retribution/punishment; deterrence; incapacitation;
rehabilitation
Criminal justice system – intrusive policing
Mostly unintentional, not deliberate - majority unaware that HIV+
Law should not be a barrier to HIV-testing – cover negligent/reckless behaviour?
Public health message – take responsibility for safe behaviour & HIV prevention undermined by blame: guilty/innocent
HIV not curable like some STDs (forced treatment), but chronic illness
Restrictions on living circumstances for serious recalcitrant cases (not just HIV status).
Structured criteria: behaviour in past & likely to continue; counselling to change
unsuccessful; danger to others - ‘real risk’ of transmission
Relevant UN Standards for Audit
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International Covenant on Civil & Political Rights (ICCPR) – rights to life,
humane treatment in detention
International Covenant on Economic, Social and Cultural Rights (ICESCR) –
right to physical & mental health
UN Convention Against Torture & Other Cruel, Inhuman & Degrading
Treatment & Punishment (CAT) – new Optional Protocol Australia signed
UN Basic Principles for the Treatment of Prisoners – P9 ‘prisoners shall have
access to the health services in the country without discrimination on the
grounds of their legal situation’.
United Nations Body of Principles for the Protection of All Persons under any
form of Detention or Imprisonment
Standard Minimum Rules for the Treatment of Prisoners
International Guidelines on HIV/AIDS & Human Rights (1996) UNAIDS
& OHCHR – G4 ‘prison authorities should provide prisoners with access to
the means of prevention (condoms, bleach & clean injecting equipment)’
WHO Guidelines on HIV Infection & AIDS in Prisons – A(1) ‘all prisoners
have the right to receive health care, including preventative measures,
equivalent to that available in the community without discrimination…’ and
P24 ‘consideration should be given to providing clean injecting equipment
during detention & on release to prisoners who request this’.
HR Audit Recommendations
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Urgent matters – overcrowding; mental health care; time-out of cells
(many ‘lockdowns’ in 2006/07); and organised activities
Humane treatment – cells; searches (eg strip – half body), drug
testing; welfare; education; work; clothing; hygiene; contact; legal
advice; media and library; information about rights
Health care – services; infection control and harm minimisation;
general health (equivalence, allied health, dentistry, external consults
and hospitals, medical records); limits on use of restraints in
hospitals; prisoners at risk
Oversight - monitoring
Systemic discrimination – sensitivity to special needs of women &
minorities; indigenous people; culturally and linguistically diverse
populations; interpreters; cultural activities; protection detainees;
religion; food
Corrections Culture – training de-escalation & anti-bullying, records
Monitoring custody rates – ATSI, research PDC, review fine default
Infection control & harm minimisation issues
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NSPs opportunity to include safer sex education & means (eg
condoms, dental dams)
harm minimisation approach protects the rights to life & health.
denying protection against disease transmission in high-prevalence
and closed population in prison may be viewed as inhumane.;
‘equivalence’ - ACT community-based needle & syringe programs;
numerous studies have demonstrated the efficacy of exchanges in
communities around the world, as well as prisons in some countries.
Evaluations of NSPs show reduction of needle sharing and
infections, and do not increase drug consumption or demand;
contraband drugs expected and found in ACT - dependence on drugs
or alcohol high, as well as mental disorders
duty of care to detainees – NSW negligence action in mid-1990s
regarding access to condoms led to reform
returned to community as average short length of stay (eg 7 months)
Infection control and harm
minimisation recommendations
• ACT Government response: ‘policy does not support a needle &
syringe exchange at this time. It is an ongoing matter for policy
consideration’ (18 months after AMC opens June 2009, ie end 2010)
• AMC pilot NSP program with provision for safe disposal of needles,
or safe injecting room (medically supervised injecting facility).
• Detainees must regularly be provided with information about the
availability of condoms and other safeguards, as well as safe sex
practices, in order to prevent sexually transmitted infections and
diseases such as HIV/AIDS and Hepatitis B and C
• In addition to installing a condom-dispensing machine, adequate
means for disposing of condoms should be provided. A dispensing
machine for latex gloves and dental dams should be provided for
women at the AMC, along with adequate means of disposing of them.
The Future
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AMC opportunity & investment - unique opportunity for human rights
compliant prison with focus on rehabilitation treat people with respect
& dignity
NSP partnership experts (eg public health, drug & alcohol),
community & government
Federal Ministerial Advisory Council (MACBBVS) role – encouraging
inclusion of human rights expert
UNAIDS 2009 World AIDS Day theme ‘Human Rights’
Federal consultation on Bill of Rights Public Hearings: 1-3 July 2009
Parliament House. Report in September 2009.
Survey as reluctance to self-disclosure is an indicator of the extent of
stigma. Anti-discrimination laws focus on public acts of government
and private bodies, but private acts such as relationships may be
indirectly affected through a legal environment that sensitizes public
opinion, and exposes stereotypes and scapegoating. As Martin Luther
King said, laws against discrimination cannot change the hearts of
men, but they can restrain the behaviour of the heartless.