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

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


1
Charter of Human Rights and Responsibilities
What does it mean forORGANISATION?
  • PRESENTERS DETAILS

2
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

3
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?

4
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?

5
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)

6
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

7
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
8
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

9
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
10
Activity Human rights issues in the news
  • Looking at The Age, assess
  • Which stories raise human rights issues?
  • What rights are impacted?

11
Activity Case study
  • What rights are raised by this scenario?
  • Whose rights are they?

12
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

13
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
14
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)

15
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

16
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

17
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

18
Public authorities relevant to ORGANISATION
  • Office of Housing
  • Victoria Police
  • Connex
  • Sheriffs office
  • Infringement court
  • INSERT FURTHER RELEVANT ORGS

19
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

20
Activity Case study
  • What rights are raised by this scenario?
  • Whose rights are they?
  • Are the rights being limited?
  • Are the limitations reasonable?

21
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.

22
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)

23
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

24
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

25
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

26
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

27
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

28
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

29
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

30
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)

31
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

32
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)

33
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

34
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

35
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

36
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

37
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

38
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

39
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

40
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

41
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)

42
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

43
Case studies
  • What Charter rights are relevant to this
    scenario?
  • Whose rights are they?
  • Are any rights being limited?
  • Are the limitations reasonable?

44
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

45
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?

46
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

47
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

48
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

49
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

50
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
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