Writing submissions to law reform bodies: the National Human Rights Consultation and Beyond

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Writing 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

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Outline

• 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?

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National 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

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National 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.

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A 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.

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What 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.

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Economic, 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.

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Civil 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

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Civil 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.

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How are human rights protected now?

• Constitutional protection (limited).
• Specific legislationeg, anti-discrimination
  laws.
• The common law.
• A culture of human rights protection.

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Case 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.

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Case 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.

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How 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.

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A 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.

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Features 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.

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HRA 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

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HRA 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

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HRA 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

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HRA 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.

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A 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.

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What 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?

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Making 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

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Where 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

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How 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