Charter of Human Rights and Responsibilities: What does it mean for [ORGANISATION]?

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Charter of Human Rights and Responsibilities
What does it mean forORGANISATION?

• PRESENTERS DETAILS

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Workshop overview

• Introduction to Human Rights
• Activity Human Rights in the News
• Overview of the Victorian Charter
• Public Authorities Obligations under the Charter
• Limitations on Human Rights
• Substantive Charter Rights
• Remedies for Breaches of the Charter
• Activity Case Studies
• Implications of the Charter for ORGANISATION
• Looking forward

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Context for todays workshop

• How can the Charter
• Assist me in advocating for my clients?
• Assist my clients in obtaining redress if their
  rights have been breached?
• Assist with targeting programs to those most in
  need?
• What can I do to ensure that I act compatibly
  with the Charter?

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Thinking about rights

• What would you want if
• your parent was placed in a rest home?
• your partner was rejected for a job on the
  grounds of his or her ethnicity and accent?
• your friend was arrested and charged for alleged
  criminal activity?

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What are human rights?

• Human rights are those rights one needs to live a
  dignified life (a life worthy of a human being)
• Human rights are
• derived from human dignity
• universal, core minimum standards
• common sense and common values
• essential in a democratic and inclusive society
  that respects the rule of law, human dignity,
  equality and freedom (Charter preamble)

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Who has human rights?

• Me?
• You?
• Citizens?
• Non-citizens?
• Criminals?
• Minority groups?
• Companies?
• Human rights belong to all human beings by virtue
  of them being human

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Human Rights in the Charter
Freedom movement, assembly association, forced work, expression, thought religion, liberty security, fair hearing
Respect life, protection of families and children, cultural rights, property
Equality non-discrimination, equal recognition, participation
Dignity torture cruel treatment, privacy reputation, humane treatment in detention
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Governments human rights obligations

• Protect rights
• Prevent others from violating rights
• Respect rights
• Do not do anything that violates rights
• Fulfill rights
• Take action to ensure that the right is enjoyed
  by all people in Victoria

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The key human rights
Civil and political rights Economic, social and cultural rights
Right to life Right to health
Right to privacy Right to food
Freedom from discrimination Right to adequate shelter
Freedom of expression Right to work and to just conditions of work
Freedom of thought, conscience and religion Right to education
Freedom of association, assembly and movement Right to form and join a trade union
Freedom from torture, cruel, inhuman and degrading treatment Cultural rights
Right to liberty and security Protection of families and children
Freedom from slavery Right to an adequate standard of living
Right to a fair hearing rights in criminal proceedings Right to social security
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Activity Human rights issues in the news

• Looking at The Age, assess
• Which stories raise human rights issues?
• What rights are impacted?

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Activity Case study

• What rights are raised by this scenario?
• Whose rights are they?

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Overview of Victorian Charter

• Requires all arms of government (parliament,
  government, courts) to consider human rights as
  part of decision-making processes
• Requires the government to act compatibly with
  human rights
• Requires courts to interpret and apply laws
  consistently with human rights

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How do the arms of government protect and
promote human rights?
Government Human rights standards built into laws and policies Assesses all new laws for compliance with human rights and reports to Parliament Responds to declarations made by Supreme Court
Courts Where possible, interpret law to be compatible with the Charter Supreme Court can make a declaration that a law is not consistent with the Charter
Parliament Passes laws after assessing them for compliance with human rights In exceptional circumstances, can override the Charter in passing legislation Has the final say on all laws
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Effect on new laws

• Government
• Government must build human rights standards into
  policy, legislation and practices
• Government must provide a Statement of
  Compatibility or Human Rights Certificate with
  all new laws
• Parliament
• Parliamentary Committee (SARC) also reviews
  compatibility
• Parliament can decide that a law overrides the
  Charter and issue an Override Declaration (should
  be rare)

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Effect on interpreting laws

• All Victorian legislation must be interpreted and
  applied in accordance with the Charter
• if this is possible and does not undermine
  purpose of the law
• The Supreme Court can issue a declaration of
  inconsistent interpretation if it is impossible
  to interpret a law in accordance with the Charter
  
• but an inconsistent law is still valid

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What is a Public Authority?

• Definitely public authorities
• Ministers
• Government departments
• Public officials and servants
• Victoria Police
• Local governments
• Statutory bodies
• Might be public authorities
• If they perform a service on behalf of government
• If what they do is otherwise connected to or
  identified with government
• If their functions are specifically set out in
  law
• If they receive public funding

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Public authorities obligations under the Charter

• Must give proper consideration to human rights
  in decision-making processes
• No blanket or inflexible rules real, genuine and
  proportionate consideration
• Must act compatibly with human rights
• Means treating people as individuals and
  according to their needs
• Must interpret and apply laws compatibly with
  human rights
• Requires active consideration and a sincere
  attempt to comply with human rights

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Public authorities relevant to ORGANISATION

• Office of Housing
• Victoria Police
• Connex
• Sheriffs office
• Infringement court
• INSERT FURTHER RELEVANT ORGS

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Limitations on human rights

• Rights are not absolute
• Rights may be subject to limitations that
• Have a legitimate and compelling aim
• Are proportionate to that aim and
• Impair the right as little as reasonably possible
• Financial considerations alone are not a
  sufficient reason to limit rights

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Activity Case study

• What rights are raised by this scenario?
• Whose rights are they?
• Are the rights being limited?
• Are the limitations reasonable?

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Rights most relevant to ORGANISATION?

• Insert the names of 3-4 rights in these bullet
  points (eg, Privacy ).
• From the slides that follow that set out the
  substantive rights, select 3-4 slides you think
  are most relevant for the particular
  organisation. Refer to the Presenters Manual to
  select the most appropriate rights.

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Equality and non-discrimination (s 8)

• Right to recognition as a person before the law
• all people have legal rights in a general sense
• Enjoyment of human rights without discrimination
• every person should be able to enjoy the human
  rights that are set out in the Charter without
  discrimination
• Equality before the law, equal protection of the
  law, protection against discrimination
• people must not be discriminated against based on
  any of the attributes listed in the Equal
  Opportunity Act 1995 (eg age, gender, race)

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Right to life (s 9)

• Right to life and freedom from arbitrary
  deprivation of life
• Tripartite obligations
• Negative obligation not to take life without
  justification
• Substantive obligation to establish laws,
  precautions, procedures and enforcement which
  protect life to the greatest extent reasonably
  practicable
• Procedural obligation to undertake effective,
  independent, public investigation where
  substantive obligation may have been breached

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Freedom from torture, cruel, inhuman and
degrading treatment (s 10)

• Torture is severe pain and suffering (physical or
  mental), intentionally inflicted, for a
  prohibited purpose
• Cruel and inhuman treatment involves less severe
  physical or mental ill-treatment than torture.
  It does not need to be intentional and the
  purpose is not relevant
• Degrading treatment is treatment that humiliates
  or debases a person.
• No medical or scientific experimentation or
  treatment without consent

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Freedom from slavery, servitude or forced work
(s 11)

• Freedom from slavery and servitude
• Slavery means effective ownership of a person
  by someone else, as if the person were a piece of
  property
• Servitude means being forced to perform labour
  for another person under coercion
• Freedom from forced work
• Forced work is work a person is made to do under
  the threat of a penalty, which he or she has not
  voluntarily offered to do
• It does not include
• Work done during legitimate detention or on
  conditional release from detention (such as
  prison work or community service)
• Community service in a public emergency
• Any work that forms part of a normal civic
  obligation, such as jury duty or maintaining a
  building if you are a landlord

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Freedom of movement (s 12)

• Right to move freely within Victoria
• Right to enter and leave Victoria
• Freedom to choose where to live
• Applies to all persons lawfully in Victoria

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Privacy (s 13)

• Privacy
• Broad term which covers all aspects of a persons
  physical, psychological and social identity and
  relationships
• Family
• Broad interpretation to include all those
  comprising the family as understood in society
  and is not confined by marriage
• Home
• Includes where a person resides or carries out
  their ordinary occupation
• Right to not have your reputation unlawfully
  attacked

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Freedom of thought, conscience, religion and
belief (s 14)

• Freedom of thought
• Freedom of conscience
• Freedom of religion and belief
• Including right to have, adopt, worship, observe,
  practice and teach this religion or belief,
  either individually or as part of a community, in
  public or in private

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Freedom of expression (s 15)

• Includes the freedom to seek, receive and impart
  information and ideas of all kinds, whether
  orally, in writing, in print, through art or
  another medium
• Information and expression regarding core
  democratic processes enjoys a very high degree
  of protection
• Includes protection for unpopular or offensive
  ideas
• May be limited to respect the rights and
  reputation of other persons or for the protection
  of national security, public order, public health
  or public morality

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Peaceful assembly and freedom of association (s
16)

• Peaceful assembly
• Right for individuals and groups to meet together
  to receive or impart information or ideas, to
  express their views or to hold a protest
• Freedom of association with others
• Right for persons to join together in groups to
  pursue common interests (eg, social groups,
  political parties, trade unions)

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Families and children (s 17)

• Modelled on art 24 of the ICCPR which requires
• development of necessary protections by social
  institutions
• every possible social and economic measure to,
  among other things, ensure protection from
  violence, exploitation and adequate nutrition
• every possible measure to foster development,
  including provision of adequate education
• access to the conditions that guarantee a
  dignified existence
• Right of every child to protection which is in
  his or her best interest

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Taking part in public life (s 18)

• The right to participate in the conduct of public
  affairs
• The right to vote and be elected at state and
  municipal elections (eligible persons)
• Right to have access to the Victorian Public
  Service and public office (eligible persons)

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Cultural rights (s 19)

• Right to enjoy your culture
• Right to practice or declare your religion
• Right to use your language
• Rights of Aboriginal persons to enjoy their
  identity and culture

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Right to property (s 20)

• Right not to be deprived of your property, other
  than in accordance with the law
• Law must be accessible and non-arbitrary

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Liberty and security (s 21)

• Right to security of person
• Freedom from arbitrary or unlawful detention or
  arrest (right to liberty)
• Any restraint or deprivation of liberty must be
  proportionate and no more restrictive than is
  strictly necessary
• Rights to certain processes when arrested or
  detained on a criminal charge

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Humane treatment when deprived of liberty (s 22)

• Right to be treated with humanity and dignity
  when detained
• Right of an unconvicted person to be separated
  from persons who have been convicted of offences,
  except where reasonably necessary
• Right of an unconvicted person to be treated
  appropriately

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Children in the criminal process (s 23)

• Right of a child to be held in detention
  separately from adults
• Right of an accused child to be brought to trial
  as quickly as possible
• Right of a child who has been convicted of an
  offence to be treated appropriately

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Fair hearing (s 24)

• Applies to criminal or civil courts and tribunals
• The right to have the charge or proceeding
  decided by a competent, independent and impartial
  court after a fair and public hearing
• Minimum basic elements of a fair hearing include
• Equal access to, and equality before, the courts
• Right to legal advice and representation (inc
  right to civil legal aid in some circumstances)
• Right to procedural fairness
• Discretion as to costs
• Right to expeditious hearing / trial without
  undue delay
• Right to interpreter where necessary

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Rights in criminal proceedings (s 25)

• Right to be presumed innocent until proven guilty
• Right to certain minimum guarantees when charged
  with a criminal offence
• Right of a child charged with a criminal offence
  to a procedure which takes into account their age
  and their rehabilitation
• Right to have any criminal conviction or sentence
  reviewed by a higher court

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Right not to be tried or punished more than once
(s 26)

• Right not to be tried or punished more than once
  for an offence which a person has already been
  convicted or acquitted
• This is known as the rule against double
  jeopardy

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Retrospective offences and penalties (s 27)

• An act must be a crime at the time a person
  commits the act, in order for the person to be
  subject to criminal punishment
• The right of a person to not be subjected to a
  penalty which is more severe than that which
  existed at the time they committed the offence
• The right of a person to receive a reduced
  penalty if that penalty was reduced before they
  are sentenced
• This section does not affect trial or punishment
  where the conduct was a criminal offence under
  international law at the time it was engaged in
  (eg. a war crime, genocide)

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What can you do if someones human rights are
being breached?

• Complaints processes
• Informal or formal (first port of call)
• Ombudsman
• May enquire into or investigate whether any
  government action is incompatible with human
  rights
• Misconduct procedures against public officials
• Public officials are required to make decisions
  compatibly with human rights
• Court proceedings
• Can only be used where you can piggyback on an
  existing case
• No entitlement to damages

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Case studies

• What Charter rights are relevant to this
  scenario?
• Whose rights are they?
• Are any rights being limited?
• Are the limitations reasonable?

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How can the Charter be used in casework and
advocacy?

• Human rights are best practice and lead to best
  outcomes by
• empowering clients
• improving service delivery
• securing positive changes to individual
  circumstances
• leading to systemic improvement of policies
  procedures

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Importance of the Charter for organisation as a
public authority

• Use the Charter as an audit tool to ensure best
  practice and improved service outcomes
• Does the policy or practice raise any human
  rights issues?
• Have we given proper consideration to these
  rights?
• Are we limiting any human rights?
• If so, is the limitation reasonable,
  proportionate, and impacting on rights as little
  as possible?

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Key Charter messages

• A human rights approach to service delivery is
  common sense and reflects existing best practice
• Giving proper consideration to human rights in
  delivering services results in better outcomes
  and increased satisfaction

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Looking forward Inclusion of ESC rights in the
Charter

• Rights are indivisible
• It is misguided to think that ESC rights are not
  suitable for scrutiny by the courts
• The 4-year review of the Charter provides an
  opportunity to seek inclusion of these rights

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Looking forward A federal Charter of Human
Rights?

• Australia is the only Western democratic nation
  without a Charter of Human Rights
• A federal Charter of Human Rights is needed to
  protect the human rights of all people in
  Australia
• This Charter should include both civil and
  political as well as economic, social and
  cultural rights
• Check out www.hrlrc.org.au or www.humanrightsact.c
  om.au to find out how to get involved

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Human rights in Victoria Some useful websites

• Human Rights Law Resource Centre
  www.hrlrc.org.au
• Victorian Equal Opportunity and Human Rights
  Commission www.humanrightscommission.vic.gov.au
• VCOSS www.vcoss.org.au
• Victorian Ombudsman www.ombudsman.vic.gov.au
• PRESENTERS LAW FIRM
• Federation of Community Legal Centreswww.communi
  tylaw.org.au

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Some useful resources on human rights

• British Institute of Human Rights www.bihr.org
• UK Department of Justice www.justice.gov.uk/whatw
  edo/humanrights.htm
• Liberty UK guide to human rights
  www.yourrights.org.uk
• Site on international human rightswww.bayefsky.c
  om