The Human Rights Law Centre’s Ben Schokman said a Charter of Human Rights is a cost-effective way to promote human rights and would have significant social and economic benefits.

“Human rights are not optional extras. Experience in other jurisdictions such as Victoria and the ACT demonstrates that human rights protections in fact provide substantial economic and social benefits with minimal implementation costs,” said Mr Schokman.

Tasmanian Attorney-General Brian Wightman has said that work has stalled on establishing a Charter of Human Rights and associated Human Rights Commission because Tasmania can’t afford it. However, other important legislation would still go ahead this year in Tasmania despite budget cuts.

“Human rights violations have both human and economic costs. Investing in the protection of rights for all Tasmanians is crucial and is even more important during times of austerity. Tough economic times mean that individuals are more likely to have their human rights infringed,” explained Mr Schokman.

In its first four years of operation, the Victorian Charter of Human Rights cost only 50 cents per Victorian per year.

“Over the last four years Victorians have enjoyed improved human rights protections for less than the price of a cup of coffee. That’s a bargain.

“A Charter of Human Rights is a practical and cost effective way to protect and promote human rights. If potential violations of human rights laws can be weeded out during the early stages when laws and policies are being developed, then costly challenges and the need for changes are much less likely to be an issue further down the track.

“The Tasmanian Government must adopt the key recommendations of the Tasmanian Law Reform Institute and expedite the introduction of a Charter of Human Rights for the benefit of all Tasmanians” said Mr Schokman.

For further comments, please contact Ben Schokman on 0403 622 810 or ben.schokman@hrlc.org.au

Background

In October 2007, the Tasmanian Law Reform Institute published its Report on A Charter of Rights for Tasmania which recommended that a Charter of Human Rights be enacted in Tasmania.

In October 2010, over 200 organisations and individuals responded to a Directions Paper released by the Justice Department proposing a Charter of Human Rights and Responsibilities for Tasmania.

A copy of the Human Rights Law Centre’s submission on the Directions Paper is available online here.

Following Nicola Roxon’s appointment as Attorney-General on 15 December 2011, the Human Rights Law Centre prepared a Briefing Paper for the Attorney on Human Rights Iniatiatives for 2012-14.

The Briefing Paper details seven actions which  the Attorney-General could take to demonstrate principled human rights leadership, promote equality and human dignity, enhance government accountability and do better in guaranteeing fairness for all.

Victoria Police use force, on average, every 2.5 hours. Almost three quarters of these incidents involve the use of capsicum spray. There have been at least 12 people shot dead by Victoria Police in the last decade, while numerous others have died in police custody.

A new report by the Human Rights Law Centre has found that human rights-compliant regulation, training and monitoring of Victoria Police would reduce the incidence of use of force, provide better guidance and support to police in enforcing the law and protecting the community, and increase public confidence in policing.

The report, Upholding Our Rights, is based on an extensive survey of international best practice in human rights-compliant policing, together with consultations with people with mental illness, Indigenous peoples, and young people of African descent. Input was also obtained from Acting Chief Commissioner of Police, Ken Lay.

“Current systems for regulating, monitoring and investigating police use of force are inadequate,” said Anna Brown of the Human Rights Law Centre. “In recent years, Victoria Police has made welcome improvements to training, including by promoting the importance of human rights and increasing the emphasis on communication and conflict de-escalation. However, nearly three years on from the fatal shooting of 15 year old Tyler Cassidy, it is clear that more needs to be done to reduce the frequency of incidents involving the use of force by police in Victoria.”

According to Ms Brown, “The next step must be to reform the law and the Victoria Police Manual to make clear that force is only lawful as a last resort and when strictly necessary. It should be used with the utmost restraint and in a manner which minimises damage and injury.”

In addition to containing constructive and practical recommendations as to police training and law reform, the report also recommends better monitoring and investigation of police use of force.

“Our research and consultations indicate that excessive use of force is a significant issue for people with mental illness, homeless people, Aboriginal and Torres Strait Islander people and young people, particularly of African descent. It also identifies a real risk of ‘mission’ creep’. Force should only be used to safeguard life and property, not for behavioural or compliance purposes,” said Ms Brown. “An independent body, such as the Victorian Equal Opportunity and Human Rights Commission, should be mandated and resourced to monitor where and when police are using force, for what purpose, and against whom.”

The report also reveals that Victoria’s systems for investigating police-related deaths are incompatible with international standards and Victoria’s Charter of Human Rights. “Currently, if someone dies from a police shooting or in police custody, the investigation is conducted by Victoria Police, giving rise to a serious conflict of interest,” said Ms Brown. “Human rights law and international best practice require that such investigations be conducted by a body that is fully independent of police. An independent investigative body would not only reduce the risk of collusion or corruption, but increase public trust and confidence in police processes.”

Ms Brown said that “If the Victorian Government is serious about transparency and accountability, we need to ensure that these principles are upheld when Victorian citizens are injured or killed by Victoria Police.”

The Human Rights Law Centre hopes that the report will be a useful resource and guide to reform for Victoria Police, the government and civil society. “Human rights can provide a valuable framework for police regulation and action that emphasises human dignity while also enabling police to use force in a way that is lawful and enhances community safety. As Victoria Police has itself written, ‘human rights protection is synonymous with good policing in liberal democratic societies’.” In his input to the report, the Acting Police Commissioner wrote that Victoria Police is “committed to working closely with stakeholders to improve the processes and training relating to the effective use of tactical options as well as investigation processes.”

The report was supported through a grant from the Legal Services Board of Victoria Grants Program.

Contact:

Anna Brown, Human Rights Law Centre – (03) 8636 4432 or 0422 235 522 or anna.brown@hrlc.org.au

Documents:

Upholding Our Rights: Towards Best Practice in Police Use of Force – Final Report

Upholding Our Rights – Background Research Paper

• the common law and our political system of representative democracy already adequately protect human rights;
• the Victorian Charter undermines parliamentary sovereignty and transfers power from parliamentarians to unelected judges;
• the Victorian Charter is a lawyers’ picnic and leads to more litigation;
• the Victorian Charter protects the rights of minorities at the expense of the majority and is therefore undemocratic;
• the Victorian Charter is bureaucratic, costly and inefficient;
• the Victorian Charter undermines religious freedoms;
• human rights are vague and ill-defined; and
• the expression of the human rights contained in the Victorian Charter is inconsistent with the expression of those rights in international conventions, like the ICCPR.

The HRLC’s comprehensive submission to the Scrutiny of Acts and Regulations Committee is available here.

The Victorian Attorney-General recently announced a review of the Charter of Human Rights and Responsibilities Act 2006 (Victorian Charter) after four years of its operation.  The review is to be conducted by the Scrutiny of Acts and Regulations Committee (SARC), which is due to report to Parliament by 1 October 2011.

Further information about the conduct of the review by SARC is available at http://www.parliament.vic.gov.au/sarc/inquiry/297.

An Opportunity to Strengthen the Victorian Charter

Four years after the introduction of the Victorian Charter, clear evidence is emerging that the Charter is having a beneficial impact on the operation of government and individuals in the community.  The review of the Victorian Charter presents a significant opportunity to strengthen and enhance its operation.

The HRLC has made a submission to the review of the Victorian Charter, which addresses:

• the overall impacts and benefits of the Charter;
• the Charter’s impact on legislative and policy formulation;
• the Charter’s impact on decision making and service delivery;
• the Charter’s impact on Victorian law; and
• myths and misconceptions associated with the Charter’s operation to date.

In its submission, the HRLC makes 20 key recommendations to improve the Charter’s effectiveness.

The HRLC has also made a further submission to the review of the Victorian Charter in response to issues raised in other public submissions to SARC.  The further submission addresses some of the views expressed in relation to the operation of the Victorian Charter that are unfounded in evidence or based on myths or misunderstandings.

Key Submissions to the Review of the Charter

The HRLC has compiled a list of submissions that have been made to the review of the Victorian Charter.

Further Information about the Review of the Victorian Charter

For further information about the HRLC’s activities in relation to the review of the Victorian Charter, please contact Ben Schokman on (03) 8636 4451 or ben.schokman@hrlc.org.au.

In its submission, the HRLC outlines the following effects of the operation of the Victorian Charter in its first four years:

Overall Impacts and Benefits

• The Charter’s mechanisms have encouraged Victoria’s strong democratic and legal institutions to give increased consideration to human rights in undertaking their roles and functions.
• While the Victorian Charter has by no means been a panacea to all forms of unfairness and injustice in Victoria, it has played an important role in ensuring that human rights are appropriately considered in all aspects of governmental activity. This includes in the development of laws and policies, in decision-making that affects every day Victorians, and in the role of courts and tribunals.
• The wide range of areas in which the Victorian Charter has played a role suggests that the protection of human rights is relevant to Victorians in many different contexts.

Impact on Legislative and Policy Formulation

• The Victorian Charter has substantially strengthened the consideration of human rights in the development and drafting of new legislation and policies.
• The Victorian Charter’s mechanisms for promoting the compatibility of new legislation with human rights – namely, the preparation of Statements of Compatibility and the review by SARC of all Bills introduced into Parliament – have improved the transparency and accountability of the Victorian Parliament and Government.
• Formal scrutiny processes have also ensured that the needs of all Victorians are more appropriately considered in legislative and policy formulation and that, generally speaking, limitations on rights have only been imposed after careful consideration as to their reasonableness, necessity and proportionality.
• The operation of the Victorian Charter has maintained Parliamentary sovereignty. Parliament has been able to pass legislation even where it may not be compatible with human rights. Where courts have interpreted legislation in a way that was not intended by Parliament, the Parliament has been free to amend the law if it chooses to do so.

Impact on Decision Making and Service Delivery

• The Victorian Charter has had its greatest practical impact at the interface between service delivery providers and decision makers and the Victorian community, particularly with respect to marginalised or disadvantaged individuals and groups.
• The decision-making framework provided by the Victorian Charter has offered useful guidance to public authorities and employees. This decision making framework promotes that appropriate consideration and weight be given to fundamental rights and freedoms, that these rights and freedoms are counterbalanced by other relevant public interest considerations, and that limitations on human rights are rational and proportionate.
• While it is still early days, the Victorian Charter has contributed to cultural change within public authorities and encouraged human rights — and the principles of freedom, respect, equality and dignity — to be embedded in their work.

Impact on Victorian Law

• There has been no “flood of litigation” or discernible increase in the number, length or complexity of cases being brought before Victorian courts and tribunals as a result of the Victorian Charter.
• Courts have taken a moderate approach to the application and interpretation of the Victorian Charter. Indeed, the actual impact of the Victorian Charter in the courtroom has been significantly less than many predictions or descriptions. Where the Charter has had an impact, it has overwhelmingly been in a beneficial way and has been successfully used to challenge arbitrary or unjust policies and decisions.
• The Charter has not altered the constitutional balance between the Victorian Parliament, Executive and Judiciary. The role played by courts and tribunals under the Victorian Charter has enhanced the dialogue between the three arms of government and strengthened accountability and checks and balances.
• The Victorian Charter has been considered across a wide range of civil litigation, but has arisen most often in relation to cases dealing with access to justice, housing and homelessness, equality and non-discrimination, and mental health.
• Decisions by Victorian courts regarding the Victorian Charter have had very little impact on criminal law, where the common law already entrenches many fundamental rights and protections.

Myths and Misconceptions

• Myths and misconceptions have the potential to damage perceptions about the role of the Victorian Charter and its operation and impact. Some myths have evolved as a result of partial, incorrect or, at times, sensationalist media reporting. For example, the myth that the legislation is a “criminals’ charter” or the misconception that sharia law could be incorporated into Victorian law via the Victorian Charter are unfounded and incorrect.

In its submission, the HRLC makes 20 key recommendations to improve the Charter’s effectiveness.

At various stages of the lawmaking process in Queensland, proposed Bills and subordinate legislation are assessed for consistency with the fundamental legislative principles, which are defined under section 4 of the Legislative Standards Act 1992 (Qld).  The HRLC has proposed that the definition of fundamental legislative principles be amended to include a requirement that legislation has sufficient regard to Australia’s international human rights obligations.  This requirement reflects Queensland’s responsibilities under international law and contemporary community expectations about legislative standards.

The HRLC considers that such a requirement will enhance the legislative and policy development process in Queensland.  The HRLC also made submissions about improving the quality of information provided to Parliament regarding the consistency of proposed laws with human rights and strengthening education measures to improve the understanding of Queensland citizens of their rights and liberties.

The submission to the Commonwealth Attorney-General’s Department considers each of 145 recommendations made to Australia by the international community during Australia’s Universal Periodic Review before the UN Human Rights Council.

The recommendations ranged from enacting a comprehensive national Human Rights Act, to recognising same-sex marriage, to enshrining Indigenous and racial equality rights in the Constitution, to abolishing mandatory immigration detention.

The Centre’s submission considers each of these recommendations in terms of Australia’s concrete obligations under international human rights law and identifies whether, on that basis, they must be accepted, should be accepted, or should be rejected.

According to a legal analysis of the recommendations conducted by the Human Rights Law Centre, the Australian Government must immediately implement at least 55 of the UPR recommendations in order for Australia to avoid continuing breaches of its legal obligations under international law.  The HRLRC’s media release is available in [PDF] and [word].

Australian NGO Coalition

The Centre has also been involved in the coordination of a major NGO Coalition submission to the Attorney-General’s Department regarding prioritisation and practical implementation of the 145 recommendations.

The Australian Government has committed to fully consider the recommendations “in the coming months” and to formally respond to them at the UN Human Rights Council in Geneva in June. Australia’s response presents both a test and an opportunity for the protection of human rights at home and the enhancement of our international standing and reputation abroad.

For further information about Australia’s Universal Periodic Review, see http://www.hrlrc.org.au/content/universal-periodic-review-ngo-delegation-updates/.

HRLRC Director of Advocacy and Strategic Litigation, Emily Howie, said it is important to keep in mind that the police shooting of Tyler Cassidy was not a one off.

“More people are shot dead by police in Victoria than in any other state. Unless the Victoria Police force fundamentally change the way they deal with young people in crisis, history will continue to repeat itself,” Ms Howie said.

The four police officers are seeking a finding from the Coroner that Tyler’s death was a suicide, but Ms Howie is concerned such theories only serve to distract from the need for urgent systemic changes.

“Instead of using the inquiry to try to justify this tragic shooting, we should be focusing on how we prevent similar deaths from happening again and how best to equip officers with the ability to defuse tense situations. If there is such a phenomenon as ‘suicide by cop’ then our police need protocols and training to deal with such circumstances in ways that do not result in police fulfilling death wishes,” Ms Howie said.

Despite recent limited improvements to police training, the HRLRC said a cultural shift was required within the police force to ensure that protocols and training recognised the importance of communication and de-escalation skills when dealing with people in crisis.

Only 73 seconds elapsed between the police first approaching Tyler and him being shot dead, in which time Tyler was sprayed with capsicum foam twice, took a phone call and was shot 10 times.

“Tyler may have been highly agitated and distressed, but police protocols and training should provide officers with the ability to safely deal with a wide range of circumstances without resorting to lethal force,” Ms Howie said.

The HRLRC also said to be effective all such investigations into serious police violence need to be independent.

“It is no use having the police investigate themselves. Not only is it commonsense to ensure investigations into police violence are independent, but it is also in keeping with international human rights law and the Victorian Charter of Human Rights,“ Ms Howie said.

A redacted copy of the HRLRC’s submission can be found here:  Closing HRLC Submissions to Coronial inquest into death of Tyler Cassidy

On 16 December 2010, the Attorney-General released a Background Paper, A New National Human Rights Action Plan for Australia, which sets out the Government’s proposed approach to developing the National Action Plan as well as a Baseline Study (a study to set out the status of human rights in Australia today).

On 17 February 2011, the Human Rights Law Resource Centre made a major submission on the development of the National Action Plan and Baseline Study, entitled Making Rights Real.

The submission sets out:

• a background to National Action Plans, drawing out the necessary aims and purposes;
• improvements that can be made to the process for developing the National Action Plan and Baseline Study; and
• a consideration of some of the substantive areas for inclusion in the National Action Plan and the steps to be taken towards better human rights protection in those areas.

Further information about the process of developing Australia’s National Human Rights Action Plan is here.