Implications of the Victorian Charter of Human Rights and Responsibilities for VAADA

A HUMAN RIGHTS BASED APPROACH

AGENDA

• Understanding the Charter• How can your agencies use it• What are the consequences• Challenging discriminatory practices• Creating a Human Rights Based Approach to our

clients’ needs

Human Rights are more than

Values and behaviours that we think other countries don’t hold or implement, so we often claim they don’t value Human Rights as well as we do

Services and facilities of a public nature affect human rights

Public decisions do

HUMAN RIGHTS in a nutshell1. Belong to everyone – they can’t be taken away from marginalised individuals

2. Are about the relationship between the state and individuals

3. Provide a floor, not a ceiling, of basic standards, below which the state must not fall and which it must protect or fulfil

4. KEY PRINCIPLES:– Fairness– Respect– Equality– Dignity

» In a democratic society

Overview

• Human rights protection necessary for stability• Victorian Charter of Human Rights and

Responsibilities includes other rights than those named in the Charter e.g. UNCRC

• You can’t ‘sue’ for a breach, but • There are many ways to

make them work in Victoria

Statutes

old ways of doing things

How?

Local laws

liability

When?

Responsibiliti

es

parliamentRights

Case Study 1 – Darlene’s little problem

What are the human rights issues in this case?

How might they be used to help Darlene?

Darlene’s little problem

Darlene is receiving unemployment benefits but keeps being cut off by Centrelink for non compliance. She had been sacked from her last job as an aged carer when the manager learned, through malicious gossip passed on by one of her co-employees, that Darlene was on a methadone program.

Now she can’t find the resources to pay for her prescriptions; the doctor who had been her prescriber has retired and there’s no other provider within cooee of her home in rural Victoria, and it seems that the clinic she wanted to attend is probably going to close down.

What human rights issues are involved in this issue? What steps could you take to help her deal with these issues?

Definitions in the CharterHuman Rights

– Basically Civil and Political Rights (ICCPR)– Include any other right or freedom recognised by law– Belong to people, not corporations

‘Public Authority’ must respect them, including:– Public servants and statutory officers, local

government– Statutory entity with functions ‘of a public nature’– Any entity with functions of a public nature when

exercising them on behalf of the state or a public authority

HUMAN RIGHTS PROTECTED BY THE CHARTER ARE:•Recognition and equality before the law

• As a person; • without discrimination; • To equal protection of the law;

and • special programs for

disadvantaged are permitted•Life•Protection from cruel, inhuman or degrading treatment•Forced work•Freedom of expression•Peaceful assembly and freedom of association•Freedom of movement•Privacy and reputation•Freedom of thought, conscience, religion and belief

•Protection of families and children

•Taking part in public life

•Cultural rights

•Property rights

•Right to liberty and security of person

•Humane treatment when deprived of liberty

•Children in the criminal process have special rights

•Fair hearing for an accused criminal

•Rights in criminal proceedings

•Right not to be tried or punished more than once

•Retrospective criminal laws not allowed

How the Charter works• Parliament intends to establish a culture of respect for Human Rights in

Victoria

• Statements of compatibility must be made in parliament when laws are introduced

• Parliament may override application of human rights in exceptional circumstances*

• Existing laws must be interpreted to be compatible with the Charter wherever possible

• All Public Authorities must act compatibly with the Charter

• Supreme Court can declare statutes incompatible, direct minister to amend them

Parliament remains supreme in determining whether to pass or retain legislation incompatible with the Charter principles.

Who is bound by the charter?

APPLIES TO ALL PUBLIC AUTHORITIES (and NGOs/private contractors performing public functions)

IS INTENDED TO PROMOTE INDIVIDUALS’ RIGHT TO BE HEARD

ALMOST A ‘SUPER LAW’ – SO FAR AS POSSIBLE ALL LEGISLATION HAS TO BE INTERPRETED TO BE COMPATIBLE WITH THE CHARTER or a Declaration of incompatibility will be issued by THE Supreme Court

DEMOCRATIC DIALOGUE – proposed laws have to be measured against human rights protected by the Charter. NB – this is one way for NGOs to hold government to account

Overall• Charter protects individuals who are natural persons,

not corporations• Duties on three branches of government

– Parliament – compatibility statements (VEOHRC keeps a register)

– Courts – interpret all Acts compatibly if possible– Executive – obligation to act compatibly, breach

may be relied on in some legal proceedings• In addition to FOI, Privacy, Administrative law,

Whistleblowers protection, Ombudsman, anti-discrimination laws etc. – and the rules of natural justice

THE CHARTER PROVIDES A human right can be limited

such reasonable limits as can be demonstrably justified in a free and democratic society based upon human dignity, equality and freedom and taking into account all relevant factors:

• The nature of the right

• The importance of the purpose of the limitation

• The nature and extent of the limitation

• The relationship between the limitation and its purpose

• Any less restrictive means reasonably available to achieve the purpose that the limitation seeks

Case Study 2 – Stan’s detox nightmare

Case Study 2: Stan’s detox nightmareStan wants to get clean. He is a single father responsible for

the care of 4 young children and they live in a rotten neighbourhood. He can’t get better rental accommodation either because agents claim the premises aren’t suitable for children, or because of his drug history and inability to provide referees.

He lost his last job because of his dependency. He is about to lose his accommodation because of complaints by neighbours. Stan recently hurt himself and was treated in Emergency in the local hospital treatment but they refused to admit him, after treatment of his physical injuries, because he would need intensive detox in addition to regular medical care. He has made inquiries about detox facilities and found a number of possibilities, but none that will accommodate his need to take care of the children.

What human rights issues are involved here? How could a Charter argument help Stan?

Some UK Cases

R v Enfield London Borough Council 2002

Local authority may have a duty to take positive steps to secure a disabled person’s physical integrity and dignity, even if it had the right to evict him.

Robertson v Wakefield Metropolitan Council

2002

Public authorities must ensure their decision making processes take into account individuals’ human rights – they may be forced to do them all over again if they didn’t!

HOW NGOs CAN USE THE CHARTER• Demanding protection of human dignity

• Challenging discrimination

• Promoting participation and HR sensitive decision-making

• Challenging brutality

• Taking positive steps to protect human rights

• Using human rights principles where resources are an issue

• Using human rights to challenge blanket policies

• Protecting human rights in contracted-out services

Some UK cases where human rights made a difference . . .DIGNITYStaff refused to clean the room of a man detained in a maximum security psychiatric centre in

seclusion, where he repeatedly soiled himself, or move him saying he would just ‘do it again.’ The advocate challenged the treatment of the man on the basis of inhumane and degrading treatment, and his right to privacy, successfully.

CHALLENGING DISCRIMINATIONA psychiatric hospital had a practice of sectioning asylum seekers who didn’t speak English

without an interpreter. An NGO successfully challenged this practice on human rights ground: it was a breach of their right not to be discriminated against on the basis of language, and their right to liberty.

PROMOTING PARTICIPATIONA disability support team had a policy of providing support to users who wanted to participate in

social activities, but refused to provide a worker for a gay man who wanted to go to a gay pub. Heterosexual users regularly went to clubs and pubs of their choice. The man’s advocate challenged this on the basis of the man’s right to respect for his privacy and not to be discriminated against on the basis of sexuality

And . .Challenging brutality

A mentally ill young man placed in residential care for treatment was found bruised by his parents, who raised the issue with the managers and felt their concerns were dismissed, and their visiting rights were then removed. The parents challenged this on the basis of their son’s right not to be treated in an inhumane and degrading way and respect for family life.

Positive steps to protect human rights

A social worker used human rights language to get accommodation for a woman and children fleeing from a violent prtner. She argued the housing authority had a positive duty to protect them from inhumane and degrading treatment and to protection of their lives.

Another social worker managed to invoke a local authority’s positive obligation to protect a man suffering from panic disorder to get them to issue him with a bus pass, because he could not use public transport effectively – i.e. had to get off the bus every few minutes to calm down

And particularlyUsing human rights to get resourcesAn advocate successfully argued that an aged woman with mental illness and

disturbed behaviour while in hospital for treatment should not be moved from the hospital and put into residential care against her wishes, on cost grounds, because she had the human right to privacy and choice, and so resources were found to support her care at home, where she wanted to live.

A disabled woman’s payments were reduced to the point where she could no longer afford a personal assistant to help her with toileting, leading to aggravation of her serious kidney condition.

Challenging blanket policiesThe education authority policy provided school transport for children with special needs

who lived more than 3 miles from school and refused to provide it to a child living 2.8 miles away, unable to travel independently. This was successfully challenged on the basis of its being a disproportionate interference with the child’s right to private life

Create your own case study

SO WHAT SHOULD YOU DO?

1. Adopt a Human Rights Based Approach to services• If you are contracted/funded to provide a ‘government service’, you may

be a ‘public authority’ yourself, for those functions, and need to comply with the Charter

• Every employee in your service needs to understand Charter Rights and how they work

• Breaches of charter considerations may mean public decisions or actions can be challenged as unlawfully made, and at the very least, should be remade

• Can’t ‘sue’ over breach of a Charter right, but can lobby, argue and utilise existing laws and e.g. ombudsman, internal review processes, VCAT, anti discrimination laws,

• VEOHRC can intervene in legal action, review (by invitation) a public authority, and must report on the first four years of the charter’s effectiveness

2. A HRBA to our work• Claim human rights as a tool for social change and in

our own work• Use human rights arguments while having a central

voice in policy debates • Use HRBAs in our own work and partnerships• Prioritise human rights in our work, raising awareness

and capacity – how can issues we work on relate to human rights issues

• Identifying human rights principles we already work to• Work in dialogue and partnerships to raise awareness

and use of human rights tools to influence and challenge discriminatory assumptions about our clients

3. Use a checklist for action1. FRED. Does this situation raise human rights issues? 2. What specific human rights are affected?3. Who owns those rights?4. Who or what is responsible for respecting and considering those rights?5. Has the responsible decision-maker considered those rights having regard to

due process?6. If the human right has been limited by the decision-maker, is the limitationReasonable.

– Demonstrably justified in a free and democratic society based uponhuman dignity, equality and freedom? and

– did it take into account all relevant factors?• The nature of the right• The importance of the purpose of the limitation• The nature and extent of the limitation• The relationship between the limitation and its purpose• Any less restrictive means reasonably available to achieve the

purpose that the limitation seeks ?

4. Use Charter Opportunities

Set the agenda – don’t accept decision makers’ preferences e.g. about allocation of resources

Integrate equal opportunity laws and human rights agendas to impact the largely untouched rights of drug and alcohol affected human beings and their families

Build partnerships and capacities of those working to tackle social exclusion and inequality to use HRBAs in their work

RESOURCES

Victorian Equal Opportunity and Human Rights Commission

website www.humanrightscommission.vic.gov.au

Human Rights Law Centre

website www.hrlrc.org.au

The Victorian Charter of Human Rights and Responsibilities can be downloaded from this site or from www.austlii.edu.au

British Institute of Human Rights report, The Human Rights Act – Changing Lives. Website www.bihr.org.uk