Title: Writing submissions to law reform bodies: the National Human Rights Consultation and Beyond
1Writing submissions to law reform bodies the
National Human Rights Consultation and Beyond
- Australian Human Rights Commission 27 February
2009 - Kate Temby, Acting Director, Human Rights Unit,
Australian Human Rights Commission - Edward Santow, Director, Charter of Rights
Project, Gilbert Tobin Centre of Public Law
2Outline
- Background to the National Consultation
- What are human rights?
- How are rights currently protected?
- How could rights be better protected?
- How would a Human Rights Act make a difference?
- What should we include in our submission?
- How can we get others involved?
3National Human Rights Consultation the Brennan
Committee
Father Frank Brennan AO
Mary Kostakidis
Mick Palmer AO APM
Tammy Williams
- Timeline
- Roundtable meetings now
- Submissions due 15 June 2009
- Committee to report by 31 August 2009
- Consultation website www.humanrightsconsultation.
gov.au
4National Human Rights Consultation Getting
involved
- Three questions posed to the Committee
- 1. Which human rights (including corresponding
responsibilities) should be protected and
promoted? - 2. Are these human rights currently sufficiently
protected and promoted? - 3. How could Australia better protect and promote
human rights? - Terms of Reference requirements
- The Committee must consult widely, and assess
community support for the various options. - The Committee must not consider a constitutional
Bill. - The Committee must consider all methods of
protecting HR.
5A significant opportunity
- Why should we participate?
- this is a once in a generation opportunity
- Australia has very limited constitutional and
legislative protection of human rights - greater human rights protections will improve
public services and empower individuals - this is an opportunity to consider a range of
legislative and non-legislative measures.
6What are human rights?
- Human rights designed to protect peoples dignity
and ability to participate in society - Two main categories of human rights
- Civil and political rights.
- Economic, social and cultural rights.
7Economic, social and cultural rights
- Your right to
- family life, and to look after your children
- work and to be treated fairly at work
- form and join a trade union
- an adequate standard of living, including
adequate food, clothing and housing - access appropriate health care
- a basic education
- maintain your culture and language
- access services regardless of your race, gender,
age or disability.
8Civil and political rights
- Your right to
- life
- not to be tortured or suffer other cruel or
degrading treatment - be free from slavery and forced labour
- liberty and to be free from arbitrary arrest or
detention - be treated with humanity if deprived of your
liberty - freedom of movement
9Civil and political rights (contd)
- Your right to
- be treated equally by the courts
- be presumed innocent until proven guilty and to
be tried without delay - privacy
- think what you like and to practise any religion
- say what you like (without inciting hatred or
violence) - vote and to participate in public life
- be treated equally by the law.
10How are human rights protected now?
- Constitutional protection (limited).
- Specific legislationeg, anti-discrimination
laws. - The common law.
- A culture of human rights protection.
11Case Study 1 how the UK HRA helped protect a
family
- The UK has had a Human Rights Act since 1998. A
woman fled domestic violence with her children.
The womans husband attempted to track the family
down and they moved towns whenever he discovered
their whereabouts. The family eventually arrived
in London and were referred to the local social
services department. Social workers told the
mother she was an unfit parent and that she had
made the family intentionally homeless. They said
that her children had to be placed into foster
care.
12Case Study 1 a human rights response
- An advice worker helped the mother to challenge
this claim on the basis of the right to respect
for family life. As a result, the family were
permitted to stay together and the social
services department promised to provide the
deposit if they could secure private rented
accommodation.
13How could human rights be better protected in
Australia?
- A range of measures could make a difference
- enhanced constitutional protections
- a National Human Rights Action Plan
- enacting specific lawseg, a law setting out how
people in immigration detention should be treated
- developing national programs to prevent or
address specific issueseg, violence against
women and girls - implementing a national public education program
about human rights.
14A Human Rights Act
- Comprehensive human rights protection
- Nomenclature Bill of Rights, Charter of Rights,
Human Rights Act all mean the same thing. - Dominant Human Rights Act model
- Statutory, not constitutionally entrenched.
- Bills of Parliament to be scrutinised against
HRA. - Public authorities required to conform to HRA.
- Court cannot strike down incompatible
legislation only issue a declaration of
incompatibility.
15Features of the dominant HRA model
- Dialogue model that preserves Parliamentary
supremacy. - Focus on achieving better accountability, and
public service decision making. - Protection of, at least, civil and political
rights. Debate over inclusion of ESC rights.
16HRA Impact on Parliament?
- A Human Rights Act would
- make the federal Parliament consider how laws
impact on human rights eg, Parliament would
need to consider whether a law requiring the
mandatory detention of all unlawful
non-citizens could be justified in light of the
fundamental human rights breaches it leads to
17HRA Impact on policy development?
- A Human Rights Act would
- make the federal government respect human rights
when developing policy eg, guidance given to
the Department of Immigration in deciding what
conditions are attached to a bridging visa should
require the Department to consider the human
rights of asylum seekers
18HRA Impact on public decision making
- A Human Rights Act would
- make public servants respect human rights when
making decisions and delivering services eg,
when deciding whether an immigration detainee can
see a medical specialist, the Department of
Immigration and detention service providers would
need to consider the right of all persons to the
highest attainable standard of physical and
mental health
19HRA Remedies
- What should happen if a public authority breaches
a persons human rights? Options include - the public authority could be required to
mediate with the person to agree on a solution - the public authority could be compelled to
cease the behaviour - the person could have a right to damages.
20A Human Rights Act myths
- Democracy and the common law adequately protect
human rights - A HRA transfers huge power from Parliament to
judges - Will create a flood of litigation
- Will promote bureaucracy and will be costly
- Will be used only by criminals and terrorists to
exploit loopholes.
21What should we say in our submission?
- Discussion
- What examples can you provide of situations where
human rights have not been adequately protected? - What would have made a difference in this
situation?
22Making a submission
- Every submission counts, no matter how large or
small! - Some questions to consider
- What expertise and experience does our
organisation have? - What value can we add?
- What resources do we have?
- Options
- Write your own submission
- Modify another submission to suit your
organisation
23Where can I go for help?
- Australian Human Rights Commission toolkit and
website humanrights.gov.au/letstalkaboutrights - Gilbert Tobin website gtcentre.unsw.edu.au
- Australian Human Rights Group humanrightsact.com.
au/ahrg
24How can I engage others?
- Encourage other organisations or individuals to
make a submission - Help others write a submission
- Run a workshop with your clients/member
organisations - Talk to your family and friends
- Attend the National Consultation community forums
- Distribute resources such as toolkits